Thursday, August 19, 2010


Equity … in its technical sense, may be defined as a portion of natural justice, which , though of such a nature as properly to admit of being judicially enforced, was, from circumstances hereafter to be noticed, omitted to be enforced by common law Courts – an omission which was supplied by the Court of Chancery. 
- Snell

In ancient Rome, the term jus civile (civil law) was used to distinguish the proper or ancient law of the city or state of Rome from the jus gentium, or the law thought to be common to all the people. 
In the Holy Roman Empire of German nations the reception was facilitated because its emperors cherished the idea of being the direct successors of the Roman Caesars. The Roman law, collected in the “Corpus Juris civilis” by the emperor Justinian I between 527 and 565, could be regarded as still being in effect simply because it was the imperial law.

The word epieikeia has both a philosophical and practical moral significance in ancient Greek. The former is captured by Aristotle in the Nicomachean Ethics while the latter is represented in several New Testament passages. 
Aristotle , Law is always a general statement, yet there are cases which it is not possible to cover in a general statement. In matters therefore where, while it is necessary to speak in general terms, it is not possible to do so correctly, the law takes into consideration the majority of cases, although it is not unaware of the error this involves. And this does not make it a wrong law; for the error is not in the law nor the lawgiver, but in the nature of the case: the material of conduct is essentially irregular. When such a situation arises, the lawgiver may “rectify” the problem.
On the one hand, according to the rectification theory, a judge will see himself trying to “correct” or “rectify” the inadequacy and error of the law by doing the “right thing” and making his decision. On the other hand is the interpretation theory, more popular in the late 19th-20th centuries, which argues that what the judge is really doing is applying the spirit of the law to the factual scenario that wasn't imagined by the law’s framers. 

Originally the King's Council carried out the three functions of state, namely legislative, executive and judicial.
Curia Regis gave way to Royal Courts
King's Council (Curia Regis) started of sending judges around the country to hold assizes (or sittings) to hear cases locally. Justices of the Peace (or magistrates) originated from a Royal Proclamation of 1195 creating 'Knights of the Peace' to assist the Sheriff in enforcing the law. They were later given judicial functions and dealt with minor crimes.

Writ system 
The judges developed the writ system. The rule was 'no writ, no remedy'. Writs were issued by the clerks in the Chancellor's Office and they began to issue new writs to overcome these difficulties, in effect creating new legal rights.
In 1285 the Statute of Westminster II authorised the clerks to issue new writs but only if claims were in 'like cases' to those before 1258. The Chancellor supervised the Chancery where clerks (who originally worked behind a wooden screen - cancelleria - hence Chancery) issued writs, commissions and other legal documents.
The Chancellor dealt with these petitions on the basis of what was morally right. The Chancellor would give or withhold relief, not according to any precedent, but according to the effect produced upon his own individual sense of right and wrong by the merits of the particular case before him. 

Independent authority of Lord Chancellor
In 1474 the Chancellor issued the first decree in his own name, which began the independence of the Court of Chancery from the King's Council....

Sunday, August 15, 2010

Maneka gandhi case _ Art 19(1)and (g), art 19(6)

Maneka gandhi case reported in AIR 1978 SC 597,arising under the passport act, is considered as one of the land mark judgement to constitutional courts' armoury tools for the judicial review of administrative and legislative action in india under the indian constitution for preservation of rule of law and protection of fundamental rights of citizens and other persons.

The following paras of the judgment from opinion of justice bhagwati speaking for the majority opinion is but one aspect of the several statements of law and its application to facts of the case:

"It is clear therefore that when section 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental rights granted by the Constitution of India." It would thus be clear that though the impugned Order may be within the terms of section 10(3) (c), ...

Wednesday, August 11, 2010

E-Legal Awareness and Education: Application of Principle of Separation of Powers i...

E-Legal Awareness and Education: Application of Principle of Separation of Powers i...: "Introduction I have tried to study the rise and fall of empires, nations as political entities through the study of rise and fall of public ..."

E-Legal Awareness and Education: Non sovereign UN to sovereign UN: A silent cry - S...

E-Legal Awareness and Education: Non sovereign UN to sovereign UN: A silent cry - S...: "Trade-politics- law in historyPolitics, economics and law are historically so integrally connected that they all go together. Every human be..."

Application of Principle of Separation of Powers in all walks of Public Life


I have tried to study the rise and fall of empires, nations as political entities through the study of rise and fall of public powers of the individuals or body of individuals occupying the offices or centers of sovereign public powers and have broadly categorised the powers exercised by such sovereign public persons or body of persons into three broad classes i.e. legislative, executive and judicial capable of affecting the rights and liberties of private individuals who constituted the subjects of such sovereign public power and found that the rise and fall of the political entities of the subject nations and the strength and weakness of its subjects varied with different permutations and combinations of these different class of powers in the same or different persons. The once produced tyranny the other produced private enterprise or otherwise one helped great empires and greater political entities, the other hindered or helped to divide the political entities. It is like energy acquiring the character of force with a magnitude and direction in one case, capable of doing a work in the desired direction, the other, for the loss of direction and destruction of the work. I have tried to analyse the effects of combination of two or more powers of the above three broad classes of powers in the one or same persons in the hierarchy and its affect on the rights and liberties of the citizens as well as on the public interest by analysing the historical precedents. I have broadly analysed historical events from Greek history, Roman history, Indian history, Islamic and Christian movements, British Empire, American model of government and different combinations of the powers like political power with economic power, legislative power with executive power etc. or all the powers in one or more persons in hierarchy in the history.

I have first analysed the combinations of different governmental powers and the sources of abuse of power, then public power with private enterprise and lastly religious power with public power and their likely impact on the rights and liberties of individual persons and finally I have suggested that the personal separation of powers should be affected in all walks of public life possessing the public powers which includes the corporate power as a part of public power and the model for effecting the personal separation of power at all levels of public powers. The reader is given to critically view the correctness or otherwise of such an idea and its usefulness and practicability in the modern social public life.


Combination of Different Governmental Powers - Sources of Abuse of Power

            It is axiomatic that all men are by nature endowed with certain inalienable rights including “right to life, liberty, pursuit of happiness”. When the men live in society, it is a social compact by which the whole people coordinate with each person and each person with whole people that all shall be govern by certain laws and principles for the common good.   These ideas are the two reflections of historical processes formulated by the great political thinkers, among which include Plato, Aristotle, Locke, Rousseau and Hobbes.

            It is axiomatic that institutions of Government are devised as a means to end and not an end in itself i.e. the Government is created by contract or otherwise to serve the welfare of the people. It is stated in the Massachusetts document “the end of Government is to secure the existence of body politics, to protect it and to furnish the individuals who compose it with the power of enjoying in safety and tranquility, their natural rights and blessings of life”. A Government which fails to serve the ends for which it was set up has breached express or implied contract under which it was established forfeiting the loyalty of it’s people and it is the right of the people to alter or to abolish it and to institute new Government, laying its foundations on such principles and organizing it’s powers in such ways as to them shall seem most not likely to affect their safety and happiness which is found in history and experience. There is always conflict between private interest and public interest when any person is vested with public power to dispense with or dispose off life, liberty and property of others. There is a tendency of that person to maximize his own self-interest in the expense of the public if there are no restrictions and checks and balances in exercise of such public power by that person. If all the public powers are vested in the same person, then the rights of the public are at peril as the person symbolizes the tyranny with no predictable rights and remedies to the public at large. The public powers have been broadly classified into three categories i.e. legislative, executive and judicial. If all such three powers vested in the same person, it is nothing but tyranny. If more than two powers combine in one person, it is still possible for abusing the public power for personal ends at the expense of the public unless there exist the clear checks and balances in system. The combining of two powers may be of either legislative and executive or legislative and judicial or executive and legislative or executive judicial or judicial legislative or judicial executive. Any one or more combination in one person may be either less or more productive of public mischief.

            The first person who has critically analyzed the functioning of various governmental powers in actual working in various systems of Government and the conflicts/governmental powers with the private powers, rights and liberties of it’s people was a Montesque. He has declared the doctrine of separation of powers to minimize the  abuse of governmental powers by persons vested with public powers. He has studied various constitutions and systems of government and found that the personal separation of powers is the best guarantee against the arbitrary powers and control over the life and liberty of its subject and the said doctrine was further expounded and adopted by the framers of the American Constitution and incorporated the same in their Constitution.

            The doctrine of separation of powers implying personal separation of powers, was stated by the Montisquo in the following words.

            “ When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers…

            The same was understood and expounded by the Madison in the pederlist No.47 as “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”.

            I totally agree with the said observations and findings and anything less than that is productive of abuse of public power and public mischief.

            All powers can be divided into two categories i.e. public power and private power. It can further be stated that public power includes all powers that is not purely private power. The sovereign power exercise by the state bodies is a part of the public power. This can also be stated in its converse i.e. public interest and private interest. The inter-relationship between these two powers is a continuing one. It is not static. It always remains in a dynamic disequilibria.

            A study of this dynamic disequilibria of the relevant historical period consists in the analysis of the various branches of social life. Time becomes an important variable in the study of these relationships. The science and technologies, material progress and the institutional arrangements in the social life affects the power, structures and equations and which in turn also affects the science and technology, material progress and social institutions. It can be said that there will be a dialectical relationship between these institutional and the power structures and material progress.

            For instance, you take the economic laws, an individual if acting as an entrepreneur as a producer, will try to maximize his economic interest and profit by using all powers at his disposal and when the same person acts as a consumer, will try to maximize his utility given the budget constraint. It is in tune with law of nature. But if the same person is holding the public power at his command, the conflict of his public duty with the tendency of an individual as a human being to maximize his self-interest either in the form of maximizing his own profit or maximizing his own utility is writ at large. Various devices have been suggested and practiced by people to minimize this conflict of interest.

            In the case of sovereign state powers and the offices created to exercise such powers, the powers and the offices have been broadly classified into three categories i.e. legislative, executive and judicial. Each of these state powers have the capacity to affect the rights and liberties of the private persons and citizens rights, liberties and properties. Therefore, every person desires that the said powers should be so exercised as to not to affect their rights, liberties and properties and even if they take any decision, which affects their interest, there should be reasonable safeguards and on certain principles of predictability. They always entertain an apprehension that if more power is concentrated in such persons holding the public offices, their rights and liberties are at peril. In the history, it is true that the person holding the public power always mixed it with his private interest and the same will become a threat to the interest of the public. When dictatorial powers are conferred or usurped by certain individuals or bodies of individuals, they always tended in the end as capable of being exercised for their private ends. Therefore, the people demanded for establishment of institutions which divides these powers into separate persons as a checks and balances system for due exercise of the public powers. The British legal history is an illustration of this process where judicial powers have been separated from the King and so also the legislative powers while the King was exercising royal prerogative as the State head of executive. But the British form of Government later times combined the executive though separate, but yet forming part of legislature and responsible to the legislature did not totally separate these two wings. The relationship between the executive and legislatures in British form of Government has become an embodiment of same person capable of exercising both legislative and executive powers making the crown titular head. If the leader of the majority party in the Legislature is elected as the Prime Minister as the executive head of the State, he is representing in a way the head of the executive i.e. combining two powers in one person. In case of American form of Government, the powers are separated, the mode of electing the heads of these three wings are separated and fine tune of checks and balances system has been evolved to check the powers and also to meet the emergency situations. A study of Roman, Greek and experience also indicates the evolution of separation of powers theory. But separation of powers theory in practice and during the end of the period before institution of the concept of emperor, the executive became too powerful with all the military powers at his command with all political rivals removed and the other institutions of legislative and judicial wings too weak to resist the persons occupying the office with dictatorial ambitions of subverting all the powers and institutions to their private ends.

Non sovereign UN to sovereign UN: A silent cry - S Lakshma Reddy

Trade-politics- law in history
Politics, economics and law are historically so integrally connected that they all go together. Every human being as an economic productive unit enters into contractual exchange relationships with other human beings to produce any useful products or services to satisfy their mutual wants or desires and when these relationships encompasses higher social levels they require organizational forms into which individual fit as tissues in an organic whole with special or general purposes bodies. These organizations encompassing social groups as a whole in a defined territories acquire political character with a power structure that determine the rights duties liabilities of its members for smooth and orderly development of social group as a whole under a legal structure what we know as law and order, and law and justice. But these social groups with political character have not remained static or fixed in history and they kept on changing with their relationships with other competing political groups either on the basis of mutual competition, consensus or conquest of the other groups and transformed like in the case of modern acquisition and merger of companies, the several clan groups into tribal groups and tribal groups into political groups some times absorbed by dominant cultures some time assimilated, some times subdued and subordinated and became smaller but greater and broader political groups and greater relations of trade and mixture of people took place under greater political units. We have seen several permutation and combinations of monarchies, and other forms of governments some times extending to greater political empires and some times spitted into smaller territorial groups depending upon the power and tenacity of political leaders. The trade and exchange of goods and services flowed along with elasticity of political groupings in the ever changing territorial units. Though the jurisprudential ideas on the rights, duties liabilities of persons as members of social groups remained as clear but the remedies always underwent changes depending upon the power structure at the helm. If the political power is concentrated in military grouping either in the person of king or dictator or some aristocratic group or mob of middle class or mob of lower classes there was corresponding emphasis on certain rights whether it be social, economic, or political but the substratum of legal concepts always maintained because they are integrally connected with human beings as producers, traders and consumers owning certain basic rights as sine qua non, constituting the political economy for satisfying individual and social wants and desires.

We see this historical social civilization process in the history of Greeks, Romans, Persians, Africans, Asiatic, European, Indian societies, all over the world. The present is the continuation of the past.


Propositions derived from history

The greater the political unity, the greater is the freedom of movement of people and trade.
The greater the freedom of movement of people and trade the greater is the division of labor and specialization of trades.
The greater the freedoms of movement of people and trade, the greater are the abridgement of gaps of inequalities and equalizations of opportunities and profits of trade.
The greater the political unity the greater is the threat to individual rights and freedoms of people from the political or other organized public powers that be
The greater the political disunity the greater the threat from other rival political groups or states that threaten the safety and security of individuals and states inviting greater outlays on defense of realms.
The greater the outlays on defense of realms the lesser the outlay on other useful social good and services that enhances the happiness of people.

For secure future

Like that finally we can deduce that the greater political unity, let us say the global political unity, with adequate legal safeguards against the concentration of great political power that threaten the rights and liberties of individual citizens the people will have greater benefits contributing optimum utilization of natural and human resources to the maximum happiness of maximum number of people without infringing the others rights.

Cost  - benefit of political unity

The cost benefits of these political economies organized into greater political units like confederation of various Greek states with provinces spread over Europe, Africa, Asia during Alexander the great period, similar and more enduring empire under the roman period with vast network of legal infrastructure under one sovereign, Napoleonic empire the more recent British empire under the responsible king and limited confederations like US, UK, USSR, INDIA, GERMANY, CANADA, etc enabled the people to freely move and trade throughout the extended territories with certain legal rights recognized by such political bodies under their sovereign legislative, executive, judicial powers.  The political units built upon force, fraud and not on the basis of voluntary union naturally disintegrated and formed into smaller ones in history like collapse of Alexandrian, Roman, British empires and new political national bodies were born based on certain common characteristics like language, cultural, racial similarities in defined territories on globe. These smaller political units reduced the freedom of movement of trade and people into their own units and limited the international movement by several restrictions. With restrictions on movement followed the truncation of creation of global division of labor that is not consistent with technology and available natural and human resources on earth. These truncated smaller political units out of scarcity of natural or other adequate capital resources to feed its people have grown feelings of jealousy, rapaciousness, envy are practicing fraudulent misrepresentations, like any other individual human behavior fraught with Hobbes state of nature society. Aggressive behavior, domination for gain on one side and submission and surrender of rights for survival of one’s life on other side is to be found in the behavior of nation states in their mutual intercourse in international affairs some time spilling over as world wars. We are in such a state of affairs now        

Global political unity - Globalization

But things are not static. The economy moves with science and technology and it some demands human and political reorganization of social life asserting its own power with people. We have seen in all earlier history it was leader led political history that determined the extent of trade and movements. Now it is technology empowered people through instantaneous communication and transport demanding freedom to move, contract with any persons any where in the globe irrespective of the political units they reside and any restrictions on this freedom is decried as unreasonable and anachronism. This is a new freedom movement for global people from the clutches of outgrown anachronism political bodies  and entities and want new order of  political structures that facilitate the movement of people through out globe, enter into any valid contracts with binding enforceability, and  for prevention of crime on global scale, for maintaining law and order and law and justice on global level for the safety and security to their lives, liberties, properties, to determine their own lives subject only to one ultimate valid general global law with equally valid subordinate  local laws.

WTO- Free trade goals

WTO is set up with the sole objective of promoting global free trade. Free trade on global level implies dismantling old local political restrictive trade practices and creation of uniform global rules and regulations for free flow of capital and labor and WTO is now on that job with all its `sincerity` within its jurisdiction.

Diagnosis of the global political disease

WTO  has in fact diagnosed the disease that that local political restrictive trade practices like imposition of trade tariffs through customs duties, discriminatory taxation policies, discriminatory subsidies, prohibition of imports and exports in the name of local public interest in retaliation or as protective measures in its own interest in the face of international jungle law or rag are impeding the natural free trade objectives and now embarked on the mission of bringing orderly development through near impossible task of consensus from multilateral, regional and bilateral trade negotiations.


I as silent spectator feel crying to the august office of WTO to willingly open its eyes and see that the better option to global people to tide over the present evils pestering the global political economy is to persuade its members for voluntary global political unity and to create global political sovereign bodies for sanctifying the global free contracting agreements over the internet shops and business houses and a legal enforcing machinery of such trans-border contracts by suppressing infringements and crimes. It should address that issue by inviting global debate over the costs and benefits to global population for such legal machinery and if necessary seek global impartial referendums to strengthen the UNO, to transform it into sovereign body as world government to preserve the planet earth from uncertain climatic changes due to human economic activity and for peace and good government of whole humanity which is also the silent cry of vast majority of global people.