EXCELLENCE IN PUBLIC SERVICE.
Prof. Joseph K. Alexander
Chairman. IIPA Kerala Regional Branch
What is Public Service
One evening, a cousin and a student of the University College, called in for a chat. During that he mentioned that he joined a student wing of a political party. He continued, “My aim is to be an MLA or MP for at least one term. I will amass enough for the next 3 generations of me.” In real life over the last 20 years, he made himself a political leader of sorts.
Man is essentially selfish. He is also inherently religious. God is in him. Man from his birth conceive and develop a god in his mind. It may be a stone, an idol, a bird, an animal, or finally a god in his own image. The evolution of creating god may or may not stop at that.
Man live in society with other men and the flora and fauna of the environment. All idealistic systems: religious, political, social and economic, try to liberate man from his selfishness to godliness in him, to love all others around and to live in such a way as to preserve his environment for the sustenance of the human life and Universe. The aim of excellence in PS is also the emergence of this ideal society of the greatest happiness of the greatest number and a good quality of life for all. It must provide him the basic minimum needs of life such as shelter, potable water, health, education, decent employment and participatory infrastructure and role in civic life. Now a days this is hindered by the increase in functions and functionaries of the government, and lack of Will of public servants and politicization of administration and corruption. This corruption is as old as public administration. It is the greatest hindrance to excellence in public service. In quantity-constrained regimes like India corruption has permeated to all sectors and aspects of life of the citizen. Political will to cajole, persuade and compel the administration is the remedy to excellence in public service.
Who renders Public Service?
One kind of public service is to be a politician. Being a bureaucrat of the government is another kind of public service (PS).
What Mother Theresa, Florence Nightingale or Mahatma Gandhi did is still another type of individual public service. Paulose Mar Gregorios Award 2005 for Creative compassion was presented to Baba Amte at New Delhi. On that occasion A.P.J. Abdul Kalam President of India wrote in his message “ Baba Amte is a living legend and an example of the Gandhian spirit in his approach to solving social problems of our nation”. This is the public service we expect from public men
NGOs (Non Governmental Organizations) render public service. Christian managements started schools, colleges, engineering and medical colleges. The Vellore Medical College started by Miss Ida Scudder is a classic example. Other religious groups like Rama Krishna Mission emulated it as a socio-economic-political need in Kerala’s pluralistic religious groupings. This is another variety of public service.
Public service done by government is still another variety. In Kerala the current event is the passing of the “Kerala Professional Colleges Act 2006” In the context of conflictive politics of Kerala the party in power wanted to impress the voters of their agenda of one-upmanship over the opposition in serving the marginalized and poor. The whole Act and its implementation procedure were with enough loop holes to be thrown out through civil suits. The political will necessary to implement it was not there. This is often the tragedy of this kind of PS.
Pre-war Era
We shall confine our discussion to the Government’s public service rendered by politicians and bureaucrats. In the early days when the State was simplistic, its function was limited to preservation of law and order within and protection of the boundaries of the State from foreign invasion. So public service was merely political administration. In the classical age the goal of public service was the greatest good of the greatest number of the citizens.
“Praja sukhe sukham rajyaha praja namcha hitehitam
natma priyam hitam rajaha prajanam cha hitam priyam“
“ In the happiness of his subject lies the king’s happiness, in their welfare his welfare. He shall not consider as good only that which pleases him but treat as beneficial to him whatever pleases his subjects.” Kautilya’s Arthasasthra.
King Rama went to the other extreme of divorcing Sita to satisfy the rumormongers of the state. The style of functioning of the civil servants then was of impeccable integrity and honesty. Even in pre-independent India the ICS servants of the British Raj was famous for
this style of work. Gandhiji also insisted that the public servants should be trustees. They should use the power for the benefit of the people and in a non-exploitative and uncorrupt manner.
Modern Governments of Developed Countries.
With the advent of division of labour and industrialization, wealth and income rose. The State functions evolved out to new areas of provision of public goods like roads, bridges, waterways, and services like education, hospitals, health facilities, transport systems etc.
The 2nd world war necessitated a large amount of planned movements of men and materials to the war front. Economic planning to win the war or reviving the economy or for greater economic growth became the principal function of the Government. The theoretical underpinning of the Keynesian technique of demand management came handy to revive the economy. Thus application of the Monetary and Fiscal policy techniques became a significant work of public servants.
As marginalisation of the weaker sections was increasing, equity and justice in the dispensation of public service became another equally important phase of PS.
With the increase in the functions and size of bureaucracy efficiency in PS deteriorated all over the World. Modern governments adopted new corporate management and marketing techniques and some New Public Management (NPM) system to induct efficiency in PS. Better emoluments and business orientation is prescribed for civil servants.WWW.adb.org. The State also tries now to become a facilitator than provider of services.
Developing Countries and corruption.
In developing countries like India generally resources are far less compared to the teeming millions of people. So these quantity constrained regimes find it difficult to have enough public servants, to cater to the needs of the people. The supply of goods and public services are far less than the people’s demand for them. The costly parliamentary elections add to the worry.
Most of the candidates personally and their political party leaders separately collect funds massively. Some of these collections are extortions. Thus corruption and criminalisation became the style of elections and government. Some of these candidates are goondas.
Corruption isn’t specific to India. It is all over the World. The lawmakers, their cabinet members and party bosses extort millions. Their civil servants bask on the crumbs that fall from the table to the floor.
Transparency International (TI) is the leading global non-governmental organisation devoted to combating corruption worldwide. WWW.Transparency International It examined corruption in 62 countries in 2004 to mark the UN International Anti-Corruption Day. Its report was published in Berlin on 9th December 2004. The report says, that in India legislatures and private sector business are the worst scoring 4.6 and 4.5 respectively, in the scale 1 to 5; 5 being cent percent corrupt.
India
Political parties 4.6 ;Parliament/ Legislature4.6; Legal system/ Judiciary 4.0;Police 4;Business/ private sector 4.5 ;Tax revenue2.9 ;Customs 3.4 ;Medi3.9a ;Medical services2.7 ;Education system 3.8; Registry and permit services 3.8; Utilities 3.7 ;Military 3.5 ;NGOs 1.9 ;Religious bodies 2.7
Controlling corruption.
Political will is the only remedy for corruption. If that can be mustered, many others can be added to enforce that “WILL” like Judicial activism, insisting on the accountability of the executive and civil services, simplifying the procedures of decision making and implementing them, insisting on transparency etc. In these days of declining standards hoping for such a “WILL” is at least now beyond imagination. It is the political parties and the parliamentarians that perpetrate corruption in developing countries. So what is wanted is a special training or orientation to the politicians. More NGO activity like “Parivartan” of Aravind Khejeriwal is also warranted.
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Friday, August 7, 2009
EXCELLENCE IN PUBLIC SERVICE.
A critique on the Criminal Procedure Code
A critique on the Criminal Procedure Code process in India
9-10-2006
Human society in its evolution instituted standards of conduct for family, school, religion, their working places and all kinds of other groupings. Survival of the group is the basic goal of all these rules and systems. Criminal law is one among them. While tort is an action against individual, criminal act is against the society. So preservation of the society is the aim of criminal law. Hence a criminal law that does not protect the vulnerable and weaker sections, which form the majority cannot be said to be just.
What I find most intriguing in the working of our CPC System is that often the poor are the victims in criminal cases. Except for a few underworld and rich mafia who are in the dock of the CPC system, 99 % or more of the criminal cases, actions against, and jail term before and after conviction, are of the marginalized, poor, dalits, and downtrodden. Is it because the poor and hapless alone are the criminals in our society, or is it due to corruption of the police-judiciary-bureaucracy-politician nexus that can thwart any CP action against them; or is it because that others in the society are more literate and adopt sophisticated modalities that leave no trace for CPC system to inculpate them in any criminal case?
The Amnesty international in a critique on the Malimath Committee Report point out the that its recommendations do not address the human rights of these underprivileged and vulnerable of the society. So the recommendation of this Report fails to make the criminal Justice system just.
A second issue that is seeking solution is that our CPC System tries to protect the accused. Rule of law and the rule that no person is guilty unless proved by law make the system circumlocutory and favouring the accused even at the cost of the victim. The law fails to protect the victim. This is flagrant in the rape cases where the victim is harassed in many different ways to disprove the case and to protect the accused. Any reform that does not address this can be said to be just.
The third problem is about the aim of CPC system. Reform of the offender and warning to the criminals is an objective of the implementation of CP system. In the notorious Aluva murder case Antony Manjooran dastardly murdered in cold-blood 6 persons of a family in a single night. The court sentenced him to death. He appealed to convert it to lifetime imprisonment. . Last week the court rejected the appeal on the ground that the death sentence should remain as a warning to criminals. But the prolonged interment of pre-trial, under-trial and regular imprisoned criminals make the jails in India overcrowded and a hotbed of criminals to imbibe new crimes and new ways of doing them. The very purpose of CP system gets defeated. Can we suggest a solution?
Another poser is the trial by media pointed out a fortnight ago by the 200th report of the 17th Law Commission appointed by the Government of India. The press and the electronic media discuss cases under trial threadbare and their opinions often influence the judges. The crime may get mollified and the criminal escapes and the victim of the crime is denied justice or the crime is aggravated and an innocent man is punished while the real culprit escape. Is this desirable or not?
888888888 Prof.Joseph K. Alexander
9-10-2006
Human society in its evolution instituted standards of conduct for family, school, religion, their working places and all kinds of other groupings. Survival of the group is the basic goal of all these rules and systems. Criminal law is one among them. While tort is an action against individual, criminal act is against the society. So preservation of the society is the aim of criminal law. Hence a criminal law that does not protect the vulnerable and weaker sections, which form the majority cannot be said to be just.
What I find most intriguing in the working of our CPC System is that often the poor are the victims in criminal cases. Except for a few underworld and rich mafia who are in the dock of the CPC system, 99 % or more of the criminal cases, actions against, and jail term before and after conviction, are of the marginalized, poor, dalits, and downtrodden. Is it because the poor and hapless alone are the criminals in our society, or is it due to corruption of the police-judiciary-bureaucracy-politician nexus that can thwart any CP action against them; or is it because that others in the society are more literate and adopt sophisticated modalities that leave no trace for CPC system to inculpate them in any criminal case?
The Amnesty international in a critique on the Malimath Committee Report point out the that its recommendations do not address the human rights of these underprivileged and vulnerable of the society. So the recommendation of this Report fails to make the criminal Justice system just.
A second issue that is seeking solution is that our CPC System tries to protect the accused. Rule of law and the rule that no person is guilty unless proved by law make the system circumlocutory and favouring the accused even at the cost of the victim. The law fails to protect the victim. This is flagrant in the rape cases where the victim is harassed in many different ways to disprove the case and to protect the accused. Any reform that does not address this can be said to be just.
The third problem is about the aim of CPC system. Reform of the offender and warning to the criminals is an objective of the implementation of CP system. In the notorious Aluva murder case Antony Manjooran dastardly murdered in cold-blood 6 persons of a family in a single night. The court sentenced him to death. He appealed to convert it to lifetime imprisonment. . Last week the court rejected the appeal on the ground that the death sentence should remain as a warning to criminals. But the prolonged interment of pre-trial, under-trial and regular imprisoned criminals make the jails in India overcrowded and a hotbed of criminals to imbibe new crimes and new ways of doing them. The very purpose of CP system gets defeated. Can we suggest a solution?
Another poser is the trial by media pointed out a fortnight ago by the 200th report of the 17th Law Commission appointed by the Government of India. The press and the electronic media discuss cases under trial threadbare and their opinions often influence the judges. The crime may get mollified and the criminal escapes and the victim of the crime is denied justice or the crime is aggravated and an innocent man is punished while the real culprit escape. Is this desirable or not?
888888888 Prof.Joseph K. Alexander
Thursday, August 6, 2009
Tuesday, June 30, 2009
Reforming Criminal Justice System in India
REFORMING CRIMINAL JUSTICE SYSTEM OF INDIA.
Prof.Joseph K. Alexander
Chairman, IIPA Kerala Regional Branch.
Human society in its evolution instituted standards of conduct for family, school, religion, their working places and all kinds of other groupings. Survival of the group is the basic goal of all these rules and systems. Criminal law is one among them. While tort is an action against individual, criminal act is against the society. So preservation of the society is the aim of criminal law. Hence a criminal law that does not protect the vulnerable and weaker sections, which form the majority cannot be said to be just.
What I find most intriguing in the working of Indian Criminal Procedure Code System is that often the poor are the victims in criminal cases. Except for a few underworld and rich mafia who are in the dock of the CPC system, 99 % or more of the criminal cases, actions against, and jail term before and after conviction, are of the marginalized, poor, dalits, and downtrodden. Is it because the poor and hapless alone are the criminals in our society, or is it due to corruption of the police-judiciary-bureaucracy-politician nexus that can thwart any CP action against them; or is it because that others in the society are more literate and adopt sophisticated modalities that leave no trace for CP system to inculpate them in any criminal case? How can we tackle this problem?
The Amnesty international in a critique on the Malimath Committee Report point out the that its recommendations do not address the human rights of these underprivileged and vulnerable of the society. So the recommendation of this Report fails to make the criminal Justice system just.
A second problem is about the aim of CPC system. Reform of the offender and warning to the criminals is an objective of the implementation of CP system. In the notorious Aluva murder case Antony Manjooran dastardly murdered in cold-blood 6 persons of a family in a single night. The court sentenced him to death. He appealed to convert it to lifetime imprisonment. Last week the court rejected the appeal on the ground that the death sentence should remain as a warning to criminals. But the prolonged interment of pre-trial, under-trial and regular imprisoned criminals make the jails in India overcrowded and a hotbed of criminals to imbibe new crimes and new ways of doing them. The very purpose of CP system gets defeated. Instead of reforming them, our Jail System creates more criminals. Can we suggest viable and pragmatic solution?
A third issue that is seeking solution is that our CPC System tries to protect the accused. Rule of law and the rule that no person is guilty unless proved by law make the system circumlocutory and favouring the accused even at the cost of the victim. The law fails to protect the victim. This is flagrant in the rape cases where the victim is harassed in many different ways to disprove the case and to protect the accused. Any reform that does not address this can be said to be just. Can we orient our approach to Criminal Justice System of India to protect the victims also?
Another poser is the trial by media pointed out a fortnight ago by the 200th Report of the 17th Law Commission appointed by the Government of India. The press and the electronic media discuss cases under trial threadbare, and their opinions often influence the judges. The crime may get mollified and the criminal escapes while the victim of the crime is denied justice, or the crime is aggravated and an innocent man is punished while the real culprit escape. If we try to gag the media, the corrupted police, investigation and the judiciary may perpetrate injustice. Which is the benchmark between media trial and need for transparency to curb corruption.
Prof.Joseph K. Alexander
Chairman, IIPA Kerala Regional Branch.
Human society in its evolution instituted standards of conduct for family, school, religion, their working places and all kinds of other groupings. Survival of the group is the basic goal of all these rules and systems. Criminal law is one among them. While tort is an action against individual, criminal act is against the society. So preservation of the society is the aim of criminal law. Hence a criminal law that does not protect the vulnerable and weaker sections, which form the majority cannot be said to be just.
What I find most intriguing in the working of Indian Criminal Procedure Code System is that often the poor are the victims in criminal cases. Except for a few underworld and rich mafia who are in the dock of the CPC system, 99 % or more of the criminal cases, actions against, and jail term before and after conviction, are of the marginalized, poor, dalits, and downtrodden. Is it because the poor and hapless alone are the criminals in our society, or is it due to corruption of the police-judiciary-bureaucracy-politician nexus that can thwart any CP action against them; or is it because that others in the society are more literate and adopt sophisticated modalities that leave no trace for CP system to inculpate them in any criminal case? How can we tackle this problem?
The Amnesty international in a critique on the Malimath Committee Report point out the that its recommendations do not address the human rights of these underprivileged and vulnerable of the society. So the recommendation of this Report fails to make the criminal Justice system just.
A second problem is about the aim of CPC system. Reform of the offender and warning to the criminals is an objective of the implementation of CP system. In the notorious Aluva murder case Antony Manjooran dastardly murdered in cold-blood 6 persons of a family in a single night. The court sentenced him to death. He appealed to convert it to lifetime imprisonment. Last week the court rejected the appeal on the ground that the death sentence should remain as a warning to criminals. But the prolonged interment of pre-trial, under-trial and regular imprisoned criminals make the jails in India overcrowded and a hotbed of criminals to imbibe new crimes and new ways of doing them. The very purpose of CP system gets defeated. Instead of reforming them, our Jail System creates more criminals. Can we suggest viable and pragmatic solution?
A third issue that is seeking solution is that our CPC System tries to protect the accused. Rule of law and the rule that no person is guilty unless proved by law make the system circumlocutory and favouring the accused even at the cost of the victim. The law fails to protect the victim. This is flagrant in the rape cases where the victim is harassed in many different ways to disprove the case and to protect the accused. Any reform that does not address this can be said to be just. Can we orient our approach to Criminal Justice System of India to protect the victims also?
Another poser is the trial by media pointed out a fortnight ago by the 200th Report of the 17th Law Commission appointed by the Government of India. The press and the electronic media discuss cases under trial threadbare, and their opinions often influence the judges. The crime may get mollified and the criminal escapes while the victim of the crime is denied justice, or the crime is aggravated and an innocent man is punished while the real culprit escape. If we try to gag the media, the corrupted police, investigation and the judiciary may perpetrate injustice. Which is the benchmark between media trial and need for transparency to curb corruption.
Kerala-Lost inheritances.
If we want to retain Kerala's inheritance of good culture and life pattern, we have to bring up our children in the proper atmosphere. The Christian culture in Kerala is a typical case.The Vatican Congress of 1965 insist on proper "Procreation " of children. This term was invented by them. Procreation is creation of the child by the ambience and environment. The child is created biologically at home in the studio of married couple in family life. But it is procreated outside the womb of the mother by the family , the society, and the ecology and environment at home and outside.The family atmosphere , the educational and cultural equipment of parents, brothers, sisters and other elders at home, the preachers, teachers, friends they get in Schools and Colleges and all other out -of- home situations are all important in the procreation process.The youth's spouse and his / her family's cultural, educational and spiritual standards are also very pertinent in the upbringing of the youth into a man / woman and a member of a society or a Church.This again is the reason why the Vatican Congress and the Catholic Church insist on educating the Christian children only in their Christian Schools and Colleges and by Christian teachers or teachers who will not brainwash their children.So insistence on minority rights of the Christian institutions to own,start and administer their own educational institutions is very important. Our children can get proper procreation only in such institutions. It is our duty to provide them these institutions and environment. That alone can act as a bulwark against the onslaught of modern scienticism, bad aspects of world culture, the mad consumerism and satanic pursuit of money to satisfy the unlimited wants of modern man. An empirical instance of an attempt to annihilate our Christian inheritance is the present day Kerala LDF Government's ill-conceived legislations to Control admissions to the Self-financing professional Colleges in Kerala. This is on the pretext of corruption and capitation fees.While the public officialdom is immersed in corruption, their endeavor to take the spec in the eye of the private managements of self-financing private colleges, while their eyes are fully blind because of the log in it, is ludicrous. Irrespective of the colour of the coalition government, they collect votes and come to power to loot the community, to come to power. again for the same.It is the vested interests of misguided remnants of already dead communist ideologies, still lingering in Kerala, that attempt to destroy faith in God and religion. The LDF Government is trying to pry open the Article 30 of our Constitution that gives protection to the minorities and their faith.All the legislations and rules brought by the present LDF Government to strangle professional self-financing Colleges has been opposed by the people and defeated at all levels of the Judiciary . Still the Government like a brainless ram is hitting against the wall. One cannot be foolish enough to believe that the Law department of the Kerala Government has ill-advised the Government to push through such ill-thought -out ,half-baked legislations, that get automatically rejected by the judiciary. It is the obstinacy of the Government that repeat this blunder of last year in this year also. They are destroying the educational future of Kerala children. It is an unpardonable crime.The Government is incapable to manage efficiently its own schools and colleges and other public sector departments, or provide sufficient institutions for the development of human resources of the citizens. So private managements came forward to fill that lacunae. Specially so, for giving proper procreation, when they felt that this was in jeopardy. They have no money to invest in the infrastructure and buildings. So they collect the needed capital from those who seek admission in such institutions. They do not seek any help from the government for running those institutions, They are minority institutions. These minority institutions have the right to admit their own students in them and educate them. In the given situation they are even prepared to admit non-minority students also on their terms. Since they admit non-minority students also the Government and the University can insist on the standards of teachers and curriculum offered in those institutions , . But to enforce other restrictions like fees collected should not be tolerated. They have their capital and running expenses to meet. The user- cost must be born by the beneficiaries of the institution. The fees proposed and demanded by them is far less than the cost incurred per student by the Government in their institutions. So such restrictions is vindictive and unethical.There are many church members who, incidentally criticize the minority institutions of the church on the ground that they collect capitation fees from even the church members. it is true. But where else they can get the capital for the infrastructure. Will any one of us voluntarily donate even Rs.one lakh for such ventures, that require millions and billions . So I would rather applaud their action. because they enable our children to study inside Kerala. Your money do not go out of Kerala. It is used for the development of infrastructure and thereby the economic development of Kerala . And lastly, give employment to a large number of Kerala youth in these institutions. Moreover in the socio-political melee of Kerala society ,social or ethnic groups vie with one another for one-upmanship in the society by starting more schools and colleges or health care institutions. It is imperative for minorities and churches to be there in the competition. Other wise that group may get marginalized in the melee.Dead ideologies cannot be juxtaposed against these advantages.So let us train our children and our youth in our own ambience and institutions that will perpetrate and sustain our good old inheritance.That alone can thwart the threat to the loss of inheritance.
Legislature Vs Judiciary- in the 9th Schedule Perspective
A talk at IIPA meeting on March 27 Tuesday, 2007; by
Prof. Joseph K. Alexander
Chairman, Kerala IIPA Regional Branch.
Supremacy of Legislature.
What is the 9th Schedule? How it came into being? The Parliament passed the first amendment to the Indian Written Constitution in 1951 as Article 31B. Those were the days of land Reforms Acts. It was feared that some judges might pass an order that taking over of surplus lands or other parts of such legislations as violative of the fundamental Rights to property provided in Article 31.To prevent such eventualities, legislatures can request such of their acts that want protection to be included in the 9th schedule. The Legislatures by creating the 9th schedule were thus declaring their supreme power to pass laws. It was a warning to the Judiciary that they shall not overstep their limits and declare such laws in the 9th schedule as ultra vires because legislature represents the people and their will
Judiciary’s warning.
Judiciary swings the seesaw in their favour. In 1967 in the Golaknath case, Supreme Court by a razor- thin majority of 6:5 in an 11 member Full Bench Court declared that Parliament cannot pass any law that violate Fundamental rights stipulated in the constitution. This was an attempt to cut a few feathers of the Legislature to prevent super flights into absolute sovereignty in legislations.
Judiciary bends.
In 1973 in the Kesavanda Bharathy case Supreme Court by another razor-thin majority 7:6 in a 13 strong Full bench ruling said that Legislature could pass Laws that even amend Fundamental Rights, provided that such laws do not damage the basic Structure of the Constitution.
3 Issues arise.
1. What are Fundamental Rights?
2. What amounts to Violation of Fundamental rights?
3. What are the Basic features of the constitution that may get damaged?
The Fundamental Rights are stipulated in the Articles 14 to 35 of the Constitution. Article 14 to 18 prescribes the right to equality, 19 to 30 about secularism and freedom, 31 right o property and 32 to 35 about the right to constitutional remedies.
The separation of powers between Legislature, Judiciary and Executive; the clear-cut stipulation of subjects of Union, State and Concurrent list on which Union and States may pass laws; and the checks and balances that are provided in the constitution, compel all the participants of the Union to do a lot of tight-rope walking and balancing to remain within their realm and without over-stepping into the areas of others. Any act that violates any of these will be violating the Fundamental Rights.
Now let us see what are the damages that can happen to the basic character of the constitution. Any legislations or actions of anybody that violates the separation of powers between the legislature, Judiciary and the Executive, or abrogates any of the 3 lists --State, Union or concurrent -may change or damage the basic structure of the constitution. Supreme Court is the watchdog of all these possible violations.
I submit that this is the merit and the success of our written Constitution. Many of the States that got independence and self-government after the World War, sooner or later degenerated into other forms of Government. We have a number of examples around us. India was able to sustain a Pluralistic Democracy, all these years mainly because of our written Constitution and the watchdog, the Judiciary. The basic strength of the Indian Republic is this clear-cut separation of powers and areas of operation of the various parts of the state.
While our Constitution is very specific regarding the functions of the various parts of the Union and States, it is vague enough on the boarder areas of separation of powers to provide flexibility or malleability in law making, in the judicial review and execution of them. The units of the Union and the States are very vigilant about encroachment by other parts into these grey areas on the boarder lines. The present issue between the legislature and the judiciary is typical.
I would consider this as the most effective part of our written Constitution that enable us to sustain a Plural Democracy in such a vast nation of 103 crores of people of different cultures, customs, languages and religions. The credit is entirely with the framers of our Constitution.
Judiciary Claims Superiority.
On 11th January 2007 a 9 member Full bench of the Supreme Court unanimously ruled in the I.R.Coelho Vs. the State of Tamil Nadu case; that laws included in the 9th Schedule do not have protection of Article 31 B. Anybody can challenge any of them. Supreme Court’s interpretation will stand. Thus Judiciary is trying to claim superiority by asserting its watchdog function.
This latest judgment defeats the fundamental division of powers between the Legislature and Judiciary. It damages the basic feature of our constitution. It has disturbed a hornet nest. The Decree has opened a Pandora’s box. Any existing or new law that claim protection of Article 31 B and included in the 9th schedule can be challenged by any and Supreme Court Review will be final.
Comments.
284 Acts have been included in the 9th Schedule. Of them 66 were included before the Kesavananda Bharathi case in 1973. They were mostly Agrarian Land Reforms. Those Acts passed after the Kesavananda Bharathy case ruling in 1973 violate fundamental rights; but without damaging the Structure of the Constitution. So they got into the 9th schedule. Now Supreme Court asserts that it has the power to review all of them and declare them as valid or invalid.
This assumption of superiority is too much. Legislature alone has the power to pass laws. The people elect them. Legislature is “vox populi”. They alone represent the people. Hence their sole right to pass laws is unquestionable.
It is true that now-adays many laws are passed by the legislatures in a single sitting like cooking Iddalies in a pot. Many of these laws are ill conceived, ill-framed and with the least homework. Some of these laws are presented in the parliament and passed with a brute majority and against opposition from the non-treasury benches, only to hoodwink the masses that voted them up. They want to parade before the voters that the election manifesto items are being implemented. They want to show them that the party wants such legislation; but the opposition is against it; or the courts are declaring them unconstitutional. This is really abuse of legislative power. Typical example is the Kerala “Self Management Professional Educational Act 2006”. All the courts that heard it declared it and its parts as violating the constitution.
Despite this type of immaturity and partisanship of modern parliamentarians, may I submit that Supreme Court cannot declare itself to be superior to the Legislature. Legislature alone has the power to pass the Laws. No Judiciary or Judicial review can amend it, or add or delete it. At best it can only interpret legislations. While thus admitting the superiority of the legislature to pass laws, the merit of our constitution is the limitations to the power of each of the parts of the State tacitly provided in the constitution. They should not overstep those limitations.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Prof. Joseph K. Alexander
Chairman, Kerala IIPA Regional Branch.
Supremacy of Legislature.
What is the 9th Schedule? How it came into being? The Parliament passed the first amendment to the Indian Written Constitution in 1951 as Article 31B. Those were the days of land Reforms Acts. It was feared that some judges might pass an order that taking over of surplus lands or other parts of such legislations as violative of the fundamental Rights to property provided in Article 31.To prevent such eventualities, legislatures can request such of their acts that want protection to be included in the 9th schedule. The Legislatures by creating the 9th schedule were thus declaring their supreme power to pass laws. It was a warning to the Judiciary that they shall not overstep their limits and declare such laws in the 9th schedule as ultra vires because legislature represents the people and their will
Judiciary’s warning.
Judiciary swings the seesaw in their favour. In 1967 in the Golaknath case, Supreme Court by a razor- thin majority of 6:5 in an 11 member Full Bench Court declared that Parliament cannot pass any law that violate Fundamental rights stipulated in the constitution. This was an attempt to cut a few feathers of the Legislature to prevent super flights into absolute sovereignty in legislations.
Judiciary bends.
In 1973 in the Kesavanda Bharathy case Supreme Court by another razor-thin majority 7:6 in a 13 strong Full bench ruling said that Legislature could pass Laws that even amend Fundamental Rights, provided that such laws do not damage the basic Structure of the Constitution.
3 Issues arise.
1. What are Fundamental Rights?
2. What amounts to Violation of Fundamental rights?
3. What are the Basic features of the constitution that may get damaged?
The Fundamental Rights are stipulated in the Articles 14 to 35 of the Constitution. Article 14 to 18 prescribes the right to equality, 19 to 30 about secularism and freedom, 31 right o property and 32 to 35 about the right to constitutional remedies.
The separation of powers between Legislature, Judiciary and Executive; the clear-cut stipulation of subjects of Union, State and Concurrent list on which Union and States may pass laws; and the checks and balances that are provided in the constitution, compel all the participants of the Union to do a lot of tight-rope walking and balancing to remain within their realm and without over-stepping into the areas of others. Any act that violates any of these will be violating the Fundamental Rights.
Now let us see what are the damages that can happen to the basic character of the constitution. Any legislations or actions of anybody that violates the separation of powers between the legislature, Judiciary and the Executive, or abrogates any of the 3 lists --State, Union or concurrent -may change or damage the basic structure of the constitution. Supreme Court is the watchdog of all these possible violations.
I submit that this is the merit and the success of our written Constitution. Many of the States that got independence and self-government after the World War, sooner or later degenerated into other forms of Government. We have a number of examples around us. India was able to sustain a Pluralistic Democracy, all these years mainly because of our written Constitution and the watchdog, the Judiciary. The basic strength of the Indian Republic is this clear-cut separation of powers and areas of operation of the various parts of the state.
While our Constitution is very specific regarding the functions of the various parts of the Union and States, it is vague enough on the boarder areas of separation of powers to provide flexibility or malleability in law making, in the judicial review and execution of them. The units of the Union and the States are very vigilant about encroachment by other parts into these grey areas on the boarder lines. The present issue between the legislature and the judiciary is typical.
I would consider this as the most effective part of our written Constitution that enable us to sustain a Plural Democracy in such a vast nation of 103 crores of people of different cultures, customs, languages and religions. The credit is entirely with the framers of our Constitution.
Judiciary Claims Superiority.
On 11th January 2007 a 9 member Full bench of the Supreme Court unanimously ruled in the I.R.Coelho Vs. the State of Tamil Nadu case; that laws included in the 9th Schedule do not have protection of Article 31 B. Anybody can challenge any of them. Supreme Court’s interpretation will stand. Thus Judiciary is trying to claim superiority by asserting its watchdog function.
This latest judgment defeats the fundamental division of powers between the Legislature and Judiciary. It damages the basic feature of our constitution. It has disturbed a hornet nest. The Decree has opened a Pandora’s box. Any existing or new law that claim protection of Article 31 B and included in the 9th schedule can be challenged by any and Supreme Court Review will be final.
Comments.
284 Acts have been included in the 9th Schedule. Of them 66 were included before the Kesavananda Bharathi case in 1973. They were mostly Agrarian Land Reforms. Those Acts passed after the Kesavananda Bharathy case ruling in 1973 violate fundamental rights; but without damaging the Structure of the Constitution. So they got into the 9th schedule. Now Supreme Court asserts that it has the power to review all of them and declare them as valid or invalid.
This assumption of superiority is too much. Legislature alone has the power to pass laws. The people elect them. Legislature is “vox populi”. They alone represent the people. Hence their sole right to pass laws is unquestionable.
It is true that now-adays many laws are passed by the legislatures in a single sitting like cooking Iddalies in a pot. Many of these laws are ill conceived, ill-framed and with the least homework. Some of these laws are presented in the parliament and passed with a brute majority and against opposition from the non-treasury benches, only to hoodwink the masses that voted them up. They want to parade before the voters that the election manifesto items are being implemented. They want to show them that the party wants such legislation; but the opposition is against it; or the courts are declaring them unconstitutional. This is really abuse of legislative power. Typical example is the Kerala “Self Management Professional Educational Act 2006”. All the courts that heard it declared it and its parts as violating the constitution.
Despite this type of immaturity and partisanship of modern parliamentarians, may I submit that Supreme Court cannot declare itself to be superior to the Legislature. Legislature alone has the power to pass the Laws. No Judiciary or Judicial review can amend it, or add or delete it. At best it can only interpret legislations. While thus admitting the superiority of the legislature to pass laws, the merit of our constitution is the limitations to the power of each of the parts of the State tacitly provided in the constitution. They should not overstep those limitations.
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Wednesday, June 17, 2009
Evangelism
Evangelism
Evangelism and observance of the verse in St. Mathew 28:19 can be done in at least 4 or 5 different ways.
1.By preaching the good news
2. Mirroring Christ by one’s own life like the Judaic Christian sanyasis. They were silently christianizing the society
3. Proselytizing by persuasion.
4. Militant Proselytizing as Europeans, particularly the Portuguese, during the colonial period. Bishop Tutu of Africa complained:” They gave us the Bible and took away our land “.
5.The latest in the Western evangelism is the mass evangelism of great preachers likes Billy Graham and the creation of Electronic Church through television by Oral Roberts in 1954 and by Pat Robertson in 1960.
There is a basic difference between Western and Eastern Evangelism. West believe in Proselytizing and increasing the number of Christians and expanding the Church by hook or crook (example: Francis Xavier in the 1560s and Bishop Menses in Udayamperor Synod). Eastern Christianity believe in the second method of Christianizing the World by their life and preaching. Fr. Bijesh Philip, Professor of Nagpur Orthodox Seminary writes in "Theosis and Mission" a recently published book, "Mission is not a Christian commercial. It is a witnes and an act of love. It implies love for those whom it is directed, and love means self-giving, not simply giving something."
Malankara Christians.have imported during the last 4 centuries western evangelism. In our Orthodox Church H.G. Pathros Mar Ostathios started it in the 1940s followed by H.G Geevarghese Mar Osthathios. But let us remember that even now we do not believe in or practice militant evangelism. But Kerala Orthodox Christian expatriates in USA, Gulf, Europe, Malayasia, Australia and other parts of the World have globalised our church with parishes in different parts of the world. Kerala Christians have thus evolved a new type of evangelism that can be termed as “Global Evangelism”.
Evangelism and observance of the verse in St. Mathew 28:19 can be done in at least 4 or 5 different ways.
1.By preaching the good news
2. Mirroring Christ by one’s own life like the Judaic Christian sanyasis. They were silently christianizing the society
3. Proselytizing by persuasion.
4. Militant Proselytizing as Europeans, particularly the Portuguese, during the colonial period. Bishop Tutu of Africa complained:” They gave us the Bible and took away our land “.
5.The latest in the Western evangelism is the mass evangelism of great preachers likes Billy Graham and the creation of Electronic Church through television by Oral Roberts in 1954 and by Pat Robertson in 1960.
There is a basic difference between Western and Eastern Evangelism. West believe in Proselytizing and increasing the number of Christians and expanding the Church by hook or crook (example: Francis Xavier in the 1560s and Bishop Menses in Udayamperor Synod). Eastern Christianity believe in the second method of Christianizing the World by their life and preaching. Fr. Bijesh Philip, Professor of Nagpur Orthodox Seminary writes in "Theosis and Mission" a recently published book, "Mission is not a Christian commercial. It is a witnes and an act of love. It implies love for those whom it is directed, and love means self-giving, not simply giving something."
Malankara Christians.have imported during the last 4 centuries western evangelism. In our Orthodox Church H.G. Pathros Mar Ostathios started it in the 1940s followed by H.G Geevarghese Mar Osthathios. But let us remember that even now we do not believe in or practice militant evangelism. But Kerala Orthodox Christian expatriates in USA, Gulf, Europe, Malayasia, Australia and other parts of the World have globalised our church with parishes in different parts of the world. Kerala Christians have thus evolved a new type of evangelism that can be termed as “Global Evangelism”.
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