It is only thereafter the Cabinet proceedings were handed over and it was acknowledged that Government had in fact issued the Circular Instructions adverted to by some of the petitioners in their Writ Petitions. From the foregoing circumstance, the Deputy Commissioners having acted at the behest of the Government becoming thus clear, the same can no longer be denied and at any rate is not now denied by the State.
The Deputy Commissioners by maintaining a stoic silence in these matters I must conclude, they have since accepted the fact that the developments leading to each one of them passing the impugned orders was clearly traceable to the decision of the Cabinet referred to supra and that it was not at their choice. The question of course arises whether in those circumstances the appointment of Administrators has to be upheld or knocked down on the short ground of the statutory functionary having been moved or having acted at the behest of the command of somebody else which in this instance happens to be the Government whose subordinate the Deputy Commissioner is.
But, in my opinion to follow that course would not be an exercise that can be readily recommended in these cases since I feel there is more harm in knocking down these appointments than in sustaining them. I am also to consider the argument led on behalf of respondents who contend that Government has sufficient powers under the Act to control or regulate the exercise of authority by the Deputy Commissioners in the matter of appointment of Administrators.
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The foregoing is in fact a very crucial issue and should merit serious consideration and that task I shall undertake in the course of this Judgment at the appropriate stage. What remains, to be done now is draw the battle lines based on the inputs supplied by the petitions during the onslaught directed against the legislative action and the statutory orders passed on the basis thereon, both of which were defended with equal fervour by the State and other entities in these cases. The battle lines is the synonym I have employed to indicate the issues arising for determination. Since part of the action lies in deciding the validity of the Legislation viz Act 1 of and its tenability based on the alleged incompetence of the Legislature to enact the same and the alleged unconstitutionality resting on the possible violation of Article 14 , it would be only appropriate to bear in mind an aspect of the Constitutional law which has come to be regarded as an essential rearguard action a Court must employ before proceeding to probe and to investigate into the areas the Legislative competence and of the statute being opposed to the salient features of the Constitution.
The first and the foremost thing the Court has to ask itself in such matters is to examine whether those who seek relief on the foregoing lines are themselves competent in the sense, whether they can be said to be aggrieved and can point out to any injury suffered by State action.
The Court in such a case is advised to ascertain whether it is possible to dispose of such cases on grounds other than the Constitutional validity of the statute. I may in this connection invite attention to the well known treatise on the Constitutional limitations by Thomas M. The learned author adverts to this aspect of the matter in the passage at page It reads:. While the Courts cannot shun the discussion of Constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to be drawn in such weighty matters collaterally nor on trivial occasions.
It is both more proper and more respectful to a co-ordinate department to discuss Constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra-judicial disquisition is entitled'. In any case, therefore, where a Constitutional question is raised, though it may be legitimately presented by the record yet if the record also presents some other the clear ground upon which the Court may rest its judgment, and thereby render the Constitutional question immaterial to the case, the Court will take that course, and leave the question of Constitutional power to be passed upon when a case arises which cannot be otherwise disposed of and which consequently renders a decision upon such question necessary.
Nor will a Court listen to an objection made to the Constitutionality of an Act by a party whose rights it does not affect, and who has consequently no interest in defeating it. On this ground it has been held that the objection that a Legislative act was unconstitutional, because divesting the rights of remaindermen against their will, could not be successfully urged by the owner of a particular estate, and could only be made on behalf of the remainder-men themselves.
To this extent only it is necessary to go, in order to secure and protect the rights of all persons against the unwarranted exercise of legislative power, and to this extent only, therefore, our Courts of Justice called on to interpose. Writing on the topic of consideration of Constitutionality of a Law the learned author states:. I may also in this connection notice the interesting disposition made by the learned author in taking the view that the Courts in invalidating the statute do not defeat the real will of the people.
In Article 5 of page 9 the learned author says in the above context. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law. The authoritative statements by the acknowledged matters in the fields of Constitutional law, laying down undoubtedly valuable precepts for guiding the Court regards the stand to be adopted in deciding issues that arise for consideration touching Constitutional matters is certainly of invaluable help.
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The first thing to notice is that certain amount of judicial restraint that would lead to obviating the necessity of undoing legislative exercise by those who are the repositories of the will of the electorate. The second aspect to be noticed is it would be quite appropriate to steer clear of the controversy relating to the constitutionality of a legislation and instead decide the case on some other ground upon which the Court could rest its Judgment thoroughly. More than all it is necessary to enquire into the injury the litigant suffers either directly or indirectly, remotely or closely from legislative action that he complains of.
The learned author echoes similar views and counsels an approach that must be closely deliberated before embarking on the course of investigating the validity of a statute. Under the topic 'Court's power and duty to declare a law unconstitutional' at page 21, the learned author says:.
While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. After having read and reblemished myself with the forewarning sounded by distinguished Authorities on Constitutional Law on the lurking danger in locking horns with constitutional issues if it can be bypassed it seems to me that in these cases however I cannot but look straight at the issues raised in these cases and cannot take the escape route.
Now having completed the reference to the pleadings in these cases in which the concomitant attitude of the State is challenged as being ultravires of not only the Statute but also the Constitution, it now becomes necessary to determine and set out the actual format of the controversy in the form of issues or points arising for consideration and I deem it appropriate to formulate them as follows:.
The conspectus of the issue leads at once to the need to take note of the restraint, if I may put it that way, the Court is required to exercise before turning into an arbiter of a dispute raised by a person or persons who may or may not have a right that could possibly be enforced at law. Besides the principle advocated by Constitutional Experts to which I have adverted to supra counsel the by-passing of a Constitutional controversy based on an alleged infraction of a Constitutional right or the law and if possible to dispose off the case that on other grounds if that could be done satisfactorily.
The foregoing really offers what I should call a safe haven to the Court seized of the onerous task of deciding Constitutional issues. It seems to me that if I did in fact opt to adopt either of the two courses, in all probability I would not be accused of availing of some kind of escapist strategy.
It also seems to me if the Administrators whose appointment is so keenly contested with such fury and verve are to last for only one year from the date of their appointment and if the said power of appointment is not capable of being exercised repeatedly, the question that arises is why all this furore.
Attention is invited to another provision in the Act under which the Zilla Parishad is empowered to dissolve a Mandal Panchayat in exercise of power under Section which, however, provides for reconstituting the Mandai Panchayat by the end of six months from the date of dissolution and in the meanwhile enabling the powers and duties of the dissolved Mandai Panchayat to be exercised and performed by such personnel or persons the Zilla Parishad may appoint in that behalf.
Reference is also made to the powers of the Government to appoint an Administrator under Section whereunder in the light of the circumstances adumbrated therein the Government can appoint an Administrator for a stipulated period with power to curtail or extend such appointment, ft is submitted even without reference to a provision like Section which does appear to be more severe than Section 8 2 of the Act, the intention of the Legislature being to place these Panchayats under an Administrator the exercise of appointing Administrators cannot be treated as so unjust rendering it incapable of being endured.
It is submitted on behalf of the respondents that whenever it becomes a necessity, Administrators are appointed and is done, so that the Panchayat administration does not suffer as otherwise there will be stagnation in the working of the Mandal Panchayat which would seriously affect the public at large for whose benefits the Mandal Panchayats have been formed and given such wide powers so that the interest of the public at large on all aspects is well served.
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It is pointed out the difference is just of the person manning the administration of the Panchayat but nonetheless if the administration goes on as well as ever, why should there be so much of hue and cry ail because of a temporary aberration resulting in the switch over from the peoples' representatives who have served out their term, to a Government's nominee who will last only for a short period. Per Contra, it is contended for the petitioners that the course of democracy should never suffer the slightest of interruption nor should it suffer any sleight that affects the course of its even flow being the exclusive bastion of the people into which no bureaucrat or officer can or should be allowed to step in.
Reference in this connection is made to the Preamble to the Constitution which to every Indian who believes in freedom, liberty and dignity of the person is indeed the veritable song celestial ensuring the traverse of democracy found the clock throughout the length and breadth of the Country permeating in its traverse all institutions designed to be governed by the people, of the people and for the people. It is also contended that the interruption of the democratic process even if it be for a short duration, let alone a year, would offend the basic feature of the Directive Principles of the State Policy enshrined in the Constitution and for this reason alone, if not for any other reason, the impugned law must be struck down.
The Preamble to the Constitution sets out the goals and undoubtedly one of the cherished goals enjoined by the Preamble is securing and preserving of democracy.
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Instead of dilating on what the Preamble says, it would be appropriate to set it out. Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation;. Dwelling on the purpose for which resort may be had to the preamble of the statute, His Lordship says:. Therefore, if what the preamble conveys is the aspirations of the Founding Fathers of the Constitution and if they envisaged a nonstop run for the process of democracy and its course, a question may well be asked can any one muchless a Legislature of the State produce a law which puts democracy on the hold for the time being.
But, this question to some extent is answered by an authoritative pronouncement of the Federal Court in REX v. Dealing with the argument that Legislature cannot be unmindful of the limitation on its power to legislate, Their Lordships said:. The Court must still see, in such cases, whether the subject-matter of the impugned legislation is realty within those powers. RAJ NARAIN, Adverting to the argument that the preamble could operate as a limitation on the powers of the Parliament to enact legislation, the Court said that the 'preamble' though a part of the Constitution, is neither a source of power nor even a limitation on that power, At para , the Court pointed out the utilitarian aspect of the preamble making it clear that the preamble was not something which was too holy to suffer the human touch, as indicated in the passage that runs thus Constitutions are written, if they are written, in the rarefied atmosphere of high ideology, whatever be the ideology.
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Preambles of written Constitutions are intended primarily to reflect the hopes and aspirations of people. They reasonate the ideal which the Nation seeks to achieve, the target, not the achievement. In parts, therefore, they are metaphysical like slogans. For example, the concept of Fraternity which is referred to in our preamble is not carried into any provision of the Constitution and the concept is hardly suitable for encasement in a coercive legal formula.
The Preamble, generally, uses words of 'Passion and power' in order to move the hearts of men and stir them into action. Its own meaning and implication being in doubt, the preamble cannot affect or throw light on the meaning of the enacting words of the Constitution. Therefore, though our preamble was voted upon and is a part of the Constitution, it is really 'a preliminary statement of the reasons' which made the passing of the Constitution necessary and desirable. As observed by Gajendragadkar, J in Enclaves what Willoughby has said about the Preamble to the American Constitution, namely, that it has never been regarded as the source of any substantive power, is equally true about the prohibitions and limitations.
The Preamble of our Constitution cannot therefore be regarded as a source of any prohibitions or limitations. The view appears to be, as I have understood it, the many ideas visulised by the Constitution as reflected in the Preamble are ideals more. Utopian in nature with the result more often than not legislation may not vibe with the glorious aspirations of the Preamble and as alleged by the petitioners herein may even result in giving a go-by to the ideals enshrined in the Preamble to the Constitution.
At any rate, I certain the validity of a law however cannot depend upon the extent it accords with or detracts from the Preamble. But another argument of a kindred nature canvassed by Sri B. Channabasappa, Sri P. Shetty and Sri Veerabhadrappa is that in any view of the matter, the provisions of Act 1 of offending as it does, Article 40 of the Constitution has resulted in the transgression of the basic structure of the Constitution and, therefore, if not for anything else atleast on this solitary ground the impugned piece of legislation must be struck down. Per Contra, the contesting respondents join-in and submit just as the Preamble is no limitation on power to legislate likewise the circumstance of a legislation being contrary to any of the Directive Principles of State Policy cannot render the legislation invalid,.
BOARD v. Therein Chinnappa Reddy, J. His Lordship further observed, that, 'this command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy. In the case of State v. Thomas copious reference is made to the setting and place of Directive Principles of State Policy in the Constitution and ways and means of considering them in harmony with the Fundamental Rights while determining the scope and ambit of the Fundamental Rights relied on by or on behalf of any person of body.
The discussion on this topic as summed up in para merits exception. It is to the following effect:. The directives thus provide the policy, the guidelines and the end of socio-economic freedom and Articles 14 and 16 are the means to implement the policy to achieve the ends sought to be promoted by the directive principles.
Although a reading of the Decisions referred to supra make it abundantly clear that there is an imperative need to adhere to the Directive principles of State Policy, I have not found anything in any of these Decisions indicating that a failure to adhere to the Directive Principles of State Policy would render the impugned legislation a piece of cannon fodder meant to be blazed away by the Court,.
Sundaraswamy, learned Senior Counsel brought to my attention a passage in the Shorter Constitution of India, by Durga Das Basu, Tenth Edition of July, , wherein the learned Author while listing the grounds on which a law cannot be assailed as invalid, points out among other things that any law contravening the Directive Principles of the State Policy cannot be invalidated on that ground. The passage is at page and is to the following effect:.
Head Note A succintly sets out the enunciation in that behalf and needs to be excerpted, it reads:. A kindred argument based on the same drift is the submission that the impugned law offends the basic structure of the Constitution and is, therefore, invalid and unconstitutional. The point is highlighted in particular by Sri Channabasappa. He urged that the perennial run of the process of democracy being the cherished objective of the Constitution and being something which the Constitution had assured at all times, any incision or clipping of that ideal injured the very fabric of the Constitution, for which reason alone the law is liable to be branded as unconstitutional and invalid.
I am afraid the argument assumes too much. In these cases, the process of democracy will but remain suspended for a period of one year only, thereafter to be revived in all its effulgence and, therefore, cannot be treated as an onslaught on the basic structure of the Constitution.
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Besides the Constitution itself provides for a situation in which the process of democracy can remain suspended. To cite an instance viz, the prevalence of emergency, breaking down of law and order necessitating the suspension of the Legislature are instances in point although they may not be in direct parlance with the present situation. If I have adverted to these aspects, it is only to assess the credibility and tenability of the argument that on the democratic horizon, even the sun shall not set after dusk, But then it is not necessary to go into the sublime claim created by an atmosphere of idealism, for the Supreme Court in more than one Decision has laid down that in interpreting the provisions of a statute consideration such as the basic structure of the Constitution is too alien.
At page and para 21 of the Judgment his Lordship sums up in his own inimitable style, his views as follows:. Nor, indeed can every breach of equality spell disaster as a lethal violation of the basic structure. Sri R.
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Raj Narain4. The passage relied upon runs thus:. Basic structures or basic features are indefinable. The legislative entries are the fields of legislation. The pith and substance doctrine has been applied in order to find out legislative competency and eliminate encroachment on legislative entries.