Even after 67 years of Independence, we are ignoring the
statement made on 2nd September 1953 in the Parliament by Dr. B. R. Ambedkar
himself, that: "People
always keep on saying to me, so you are the maker of the Constitution. My
answer is I was a hack. What I was asked to, I did much against my will. I am
quite prepared to say that I shall be the first person to burn it. It does not
suit anybody."
India is a democratic country. Democracy means “Rule of Law”, governed by the
people, for the people and through the people. Rule of Law means a system,
which shall ensure that: (i) no one, whoever he may be, is above the law;
(ii) transparent and good governance; (iii) corruption free accountable
bureaucracy; and (iv) Guaranteed expeditious remedies.
This is an admitted fact that the major part of the Constitution of India is
prepared basing upon the Government of India Act, 1935. Article 147 of the
Constitution of India provides that “In this Chapter and in Chapter V of Part
VI, references to any substantial question of law as to the interpretation of
this Constitution shall be construed as including references to any substantial
question of law as to the interpretation of the Government of India Act, 1935
(including any enactment amending or supplementing that Act), or any Order in
Council or Order made there under, or of the Indian Independence Act, 1947, or
of any order made there under.” The aforesaid provisions has laid downs the conditions upon the
Supreme Court and High Courts not to interpret anything beyond the scope of the
interpretation of the Government of India Act, 1935. The Government of India
Act, 1935 was enacted by the British parliament, so amendment in it, obviously
can be made by the British Parliament only, which means Article 147 is imposing
a condition upon the Indian Judiciary to recognise any subsequent amendment, if
passed by the British Parliament, thus virtually the sovereignty of Indian
Judiciary with regards to interpretations are concerned, was tagged with the
right of the British Parliament to amend the said Act. On the other hand
provision does not provide any provision for amendment in Indian Independence
Act 1947. The word “Council” is denotes to British Privy Council. Otherwise
what is justification in Judgments pronounced by the Constitutional Bench of
the Supreme Court based on references from the Judgments of the British Privy
Council. Government of India has
respected the conditions with several British Companies to run their
monopolistic Business in India, on the terms and conditions applicable prior to
15th August 1947. There was a conditionality that the British
Administrative system will continue at least for 50 years. This date expires on
15th August 1997. This is a matter of the fact that on the said very
day i.e. 15th August 1997 the then Prime Minister of India Shri
Inder Kumar Gujral announced from the Red Fort that about 3,000 Laws are become
ineffective and defunct and would be removed. In fact, in 1942, British
Government, through Crisp Mission, submitted its proposal for transfer of
powers to Indians, which was refused outright by the people -just before they had given a call for quite India-, as because any
proposal less than total freedom in the garb of the transfer of Powers was not
acceptable to India. In fact, in 1942. An agreement was arises and emerges from
such proposal, thus Interim Government headed by Shri Jawaharlal Nehru, as the
prime Minister was formed. As per agreement in accordance with the said Cabinet
Mission proposals, in or about July 1946 the Constituent Assembly was
constituted through elections based on Religious Electoral Constituencies. On 6th
December 1946 the Constituent Assembly started its function. In accordance with
the Cabinet Mission proposals the Constitution of India is prepared basing upon
the Government of India Act 1935, for undivided India. But, under the British
diplomacy, subsequently division of India was declared in June 1947, though
this was not the part of the Cabinet Mission proposal of 1946. The reason and
objective behind his appointment was very clear that he was aware of the
mindset and value of the opposition from people or their true representatives. .
As a result the proposal of the Cabinet Mission was got approved directly from
the Congress Working Committee, without prior consultation with or knowledge
of the people representing Bharat varsh.
When Indian Parliament on the night of 15th August 1997, celebrated
50 years of so-called Freedom, British Queen Elizabeth was the main guest. Why
was not Head of any other country? All Acts, enacted since (1860) 1861 including the
Government of India Act 1935 were enacted in the name of reforms, but the basic
object of the British Government behind enactment of such laws were to divide
Indians to Rule India. It means People’s
governance for the People and by the People. But, see how far this logic is
working or workable in practical life and what are the experiences of the
common men? In any democracy Parliament must be the highest democratic
Platform. The Parliament’s first and foremost function should be to develop,
improve, and enhance the good governance system, which can ensure good
Governance at each and every level. But, what we are looking today is that the
Indian Parliament is not serious at all to it’s such objective. The people of
India may feel that the Political parties are responsible for such situation.
But, according to me really they are not responsible for such grave situation.
The root cause is elsewhere, as the democratic system provided by the Indian
Constitution is not developed in consideration of the Indian Society, culture
and its needs.
Each and every level of the governance, immense corruption with
immunity, become important part of the system;
Violation of Law with immunity is not a matter of surprise, for
any one;
Remedial measures are not easily available in respect of any
matter of ill-governance, prevailing under nexus between the powerful
politicians, bureaucrats and organised mafia;
Immense economical, social and political exploitation is not at
all a matter of concern for any politician; and
From the whole of the country a single person from the common man
can be identified who can justify that he has no grievances relates to
governance at one or other level.
A
democracy cannot sustain for a long, unless followings principles are not
translated in practice of the governance: -
1.
Truth shall prevails;
2.
Justice must be above all;
3.
Reins of the powers should be in the hands of the people;
4.
Unity, based on self reliance, self respect and self dependence amongst the
people must be supreme objects;
5.
Each, including Constitutional Authority should be accountable before the law
and system irrespective of his status or position;
6.
Justice delivery system should be easy, affordable and within reasonable time;
7.
In the Election mechanism value should be given to the Voters not to the
Voting;
8.
Individualized Politics should not be allowed at any level and at any cost;
9.
Promotions in the Politicians should be based on experience, competency and
performance;
10.
Distribution of the benefit of the progress and economical betterment of the
country should be horizontal;
11.
System should not allow finding the ways to discriminate one to protect the powerful
by skills or expertise.
12.
Each Individual should be kept away from the democratic process, if he does not
obey these principles with the latter and sprit.
The
Supreme Court of India shall admit a complaint after preliminary satisfaction, against
the criminal misconduct by any person holds or holding the office of President,
Vice-President, Prime Minister, any member of council of ministers in the
Central Government, Chief Ministers of any State, and person holds or holding
post with the or equal to rank of Cabinet Secretary; and Secretaries of the
Central Government and Chief Secretary of any State, and after admit, it should
be forwarded to a appropriate subordinate court for further criminal
proceedings, determination and judgment.
Such powers, privilege and immunities shall not cover the misuse of
office of the member of the Parliament under gratification.
Jurisdiction of court is like that of constructor of a building which has
either perfection or many defects. The final word of posterity is dependent
upon the skill and calibre of builder who may heartily desire to build up it
like expert builders with architectonic virtues to amend or/and add some
material both by method and uniformity and if the structure itself does not
found ventilation for the want of windows and lake of sufficient light or other
deficiency in the architecture, whatsoever, then to demolish the existing
structure, only than we may blessed the amending hand as if the trumpet idea
gives an uncertain sound who shall prepare himself to the battle?
When any charge of the gratification is
leveled against Prime Minister, His Cabinet Ministers and other Ministers or
against any member of the Parliament, it shall be his duty to make requisite
confessional statement before Apex Court, within seven days from the date of
information against such charge otherwise he is liable to be declare as disqualified
as a member of the Parliament. The Constitution of India and its legal system is required to ensure
removal of the Individual-controlled politics, in practical terms cast,
religion, language, reason based politics, which has strengthened the policy of
English Rulers to divide Indian to Rule the country and to get powers.
Resulting thereby in every segment of the society politics-crime-nexus became
part of the life.
Yogesh Kumar Saxena, Advocate, High Court,
Allahabad
Ex Senior Vice President, Advocate’s Association,
Chamber No. 139,High Court, General Secretary ALL INDIA BAR ASSOCIATION Trained
Mediator of the first batch of Mediation Team
Registration No. 946 of 1974 ( U.P.Bar Council of Allahabad) Special Counsel in Ganga Pollution Matter. Executive Member, World Parliament Experiment
(Bonn) Germany 22nd Feb. 7th March 2008 Conveyor International Conference Of Jurists, Held in
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ANF FOR MAINTAINING THE ROLE OF PEACE AND TRANSQUALITY IN INDIA (THROUGH SRI
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GRAM, HARIDWAR 249402 PHONE 01334-240008) Yoga
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Miami, FL33126 International conferences of Chief Justices of
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