Archives for the month of: March, 2016

faith and future

‘Faith & Future’  


– ‘Never unnerved by failures and Setbacks’ –
(-That way sound men were born like Dr.APJ Abdul Kalam since time  immemorial – Such kind lively men  built ‘India’ from the scratch, Could ever any deny!)

by Advocate Prof. G.Balachrishnan Pandipeddhi, (pen name)

‘Sensitive and informed minds  believe  the fundamental need of the world , far deeper than  the Social, Political, or Economic re-adjustment is Spiritual awakening’, said Dr. S. Radhakrishnan, great eastern philosopher and a President of India in mid 20th century.
How rightly reflected in the ‘Contemplation’ –
‘We create and destroy

And again  re-create

In forms of which  no one knows.’
said in ‘Contemplation’….AL- WAQUIAH, Qur’an 56: 61.
Lewis Carol similarly said…
in ‘Propitiation’ as follows:
‘Let craft, ambition, spite,

Till weakness  turn  to might,

Till  what is dark  ‘be Light’,

Till what is wrong ‘be Right’,
Carol added further,
‘You may charge me  with ‘murder’ –

‘Or want  of ‘sense’,
(‘We are all of us ‘weak at times’, quipped Dr.A.P.J.Abdul Kalam!)
‘But  the slightest  approach  to a  ‘false’ pretense,

Was never  among  my ‘Crimes’!

Why Dr.APJ Abdul Kalam  is happy?
He said..
‘I have acquired Nothing’ built nothing,

possess nothing –

no family,

( no ) sons,

(no) daughters’…!!!!!
‘I am  ‘a well’  in this great land,(India),

Looking  at its millions  of boys and girls

To draw  from me,

The ‘inexhaustible divinity’

And spread  His Grace  every where,

As does the ‘water’  drawn  from ‘a well’;

He says in his ‘My Story’

  • ‘the story of the son of Jainulabdeen, (who lived, for over a 100 years (died at 102nd year) on Mosque street in Rameswaram island (in Tamil Nadu, India) and ‘died’ there; the story of a lad (Kalam) who sold newspapers to help his brother ; the story  of a pupil (Kalam)  reared (brought up ) by Sivasubrahmania Iyer and Iyadurai  Soloman; the story of a student (Kalam)  taught by teachers like Pandalai, ; the story of an Engineer (Kalam) spotted by MGK Menon  and groomed by legendary Prof. Vikram Sarabhai, Industrialist cum Scientist,( a close friend of Pandit Jawaharlal Nehru, then P M of India) ; the story of a scientist  (Kalam) tested by ‘Failures and Setbacks’ (still unnerved him) – ‘a great strenghth of mind’ ;
  • (Thus  the story of a leader (Kalam) supported by a large team of ‘Brilliant’ and ‘dedicated’ professionals surfaced and made India also great by this one human.)
  • He said. ‘This story  will End with me’ (Kalam)…’

He again held:
‘My worthiness  is all my doubt –

His merit – all my fear –

Contrasting which my Quality

Does however – appear…’
when if one reads his (Kalam’s a simple autobiography in his presentation called ‘Wings of Fire’ – a worthy text for any higher Project Management studies.
or in Strategic Management studies,
Human Resources Management studies, why even in Marketing management studies .
..if all Indian universities prescribe his book as a Project Research assignment in their final MBA Programme; and as a research guide for students doing doctoral studies in any prestigious university or school of business management;
and also it could be prescribed for PG programmes in any faculty in any university for this would really provide one necessary WISDOM  tool to the participants, – for today no one is taught, anywhere in any level – ‘how to listen patiently?’;
if one could be meaningfully lead in ‘Listening’  anything, then probably he might be   a meaningful Leader…for today;
we do not have any leader worth the name;
for  we are always running short of Leaders in any area of specialization of studies …!).

“When we look at ‘Recovery of faith of Dr. Radhakrishnan;
In the ‘personal experiences’ of seers  of different  religions, we discern characteristics  which are unaffected  by differences  of race  and geography  and which illustrate an astonishing  similarity in regard to spiritual  life  in spite of slight variations’, said Dr. S. Radhakrishnan in his chapter VI on “Religious Truth and Symbolism’.
Direct spiritual experience is  a psychological state .
It is indeed ‘independent’ of the metaphysical doctrine inferred from  reality of experience.
Experience  has a cognitive value – a certain  ‘metaphysical conception, of Nature of the ‘ABSOLUTE’.
Absolute is  the ‘Human soul and the world’.

  • a certain way of ‘attaining Union with Absolute – God’;

–   Varieties of expressions, variations ‘even among those, profess the ‘same religion’;
One can see striking Similarities within the ‘Seers’ of Hindus, Buddhists teachers , Greek thinkers,  –  Socrates, Plato, Aristotle,     and Plotinus, Christian mystics  or the ‘Sufis’ saints.(133).
Question arises among all of us,
–  why then there are terrible conflicts among these men who profess to be followers of

these seers, thinkers and saints?
is indeed, the biggest thought provoking questions, is it not, any one asks ?
‘Human nature has  immeasurable potentialities;  and world process  has NO  pre-destined goal’ Kalam said. (95)

Brha-dranya Upanishad says in I , 3,  28…..
‘ Lead me from the unreal to the Real;
lead me  from Darkness to Light;
lead me  from death to immortality’.
Evans’ translation of Eckart:
‘ The soul’s perfection  consists in Liberation
from the Life that is ‘in part’ and in admission  to the Life  which is

Whole’;
‘We beseech thee , Lord God , to help us,

 

 

Escape from ‘the Life’,  that is

divided,  into the life,  that is United.’

Man’s ‘self consciousness ‘ knowledge of good and evil (bad), freedom from anxiety – symptoms of ‘Non-Being (Entity)” – these  make (force) him  yearn  for ‘spiritual emancipation’

(spiritual safety) and security , harmony and courage  –

the results of  ‘Conquest of Being’ over ‘Non-Being’ (94)
 

*Warren Hastings wrote to East India company directors when Christian reforms commission to bring in circumcision common to muslims and christians then, saying Hindus in India very cooperative Secular type citizens, ‘so it is better not to interfere except by volition conversions certainly not by forced conversions;
and that is wiser method in such a vast country with very many denominations of hindus and buddhists, muslims and others shows –
How the  British East India company behaved well with local communities, though he had some problems with the Begums of Oudh, which really ousted him, out of favor in Britain when *Edmund Burke impeached him in British Parliament , this could be noted in Dr.S.Radhakrishnan’s Recovery of faith in the last chapter.

This reminds me, how great was Frederick  Carl   von Savigny (1779-1861) rightly held.
‘Law grows with the growth and strengthens,  with the strength of people, and finally dies away  as the Nation repeat Nation ‘loses’ its individuality’ (Legislation & Jurisprudence, p.27; – Hayward translates ‘Eigentimlichkeit’  as ‘Nationality’.
Per his view endorsed by his famous disciple-student – Georg Fredrich  Puchta (1798-1846);
Savigny rightly  said ,
*‘Law was not something  that should be made arbitrarily,  and deliberately, by a lawmaker’ ‘’
that view was upheld by ‘Director of East India Company’, that guided Warren Hastings, then, ‘rejected the idea of ‘circumcision’ followed by christians, like Moslems, then for that only saved a first indian ‘religious revolution’, in British India.
That way christian religion could not rule India then even during East India company rule in the 17th century too.
How careful as rulers were they?,  one needs to know;
He said, ‘Law was a product of , ‘internal, silently – operating  forces’. ( On the Vocation of our age for legislation and jurisprudence , translated by Hayward (London, 1831), p.90.
He further held :
‘ In every people , certain  traditions and customs  grow up which by their continuous  exercise evolve  into Legal Rules. – ‘Law was aimed at  ’ serving as an institutional device’ , for substituting  ‘aggressive force’, by peaceful  forms of  human relations .
The past  history of Mankind ‘demonstrates’,  ‘clearly’,  that ‘thus  far’ the Law  has  been  More Successful in ‘Curbing’ fighting  within organised groups than  in  ‘controlling’, ‘warfare’ between such groups. (Gehlen, pp. 69-70)(308);

I would recommend the said book be read by every member of parliament as also every member of every State Legislative Assembly, to better appreciate… i would recommend relevant vernacular authentic translations of Dr.S.Radhakrishnan’s .

Indeed the language of his English work, which English is indeed very tough to assimilate, even to a well learned English professors; unless they had really had meaningful exposure to comparative religions and philosophies too,;
and that way i would say every Law student should read that work to enable him better follow the Indian legal authentic history. .

This clarifies how ‘Sanathana dharma’, need to be followed for Sanathana dharma is itself Secular;
(what we talk as Secular India is posing a sensible question to one ans all what we really understand?).
Secular, in its  prudent approaches’ sensitivitiesn what we appreciate?
But today, what India follows as a ‘dharma’, is a confounded confusion syndrome is very clear; just because ‘fanaticism’ in every religion is in direct serious conflict with each other, is apparent on record. – a misery syndrome we suffer from;

Crimes increases not only on account of Economic conditions;
though economic condition might enthuse professional one, that could be a public servant, wealthy man, or a politician and the like;
but not a non professional criminals;
many suffer ecological conditions ;
but today ‘fanatic approaches of religions and indoctrination enthuses many to get into crimes of all kinds;,
Political ideology enthuses crimes;
family background,  culture conflicts, mobility led by industrialization  and urbanization, competition, means of communication, travel travails ,propagation of views through press, media and relevant platforms like advertisements,  congestion in accommodation, overcrowding and the like enthuse one to different kinds of crimes;
under multiple factor approaches though fully not completely accepted;  but yet  incidences are definitely  recorded :

like, mostly like rapes in crowded life in idle – transports, housing colonies in slums ; white colar crimes, including cyber crimes; after all internet too contribute to crimes in various areas of activities, unlike in the past…or early stages;

Even family background contributed to crimes, under social process
Roscoe Pound an American jurist felt … ‘in his ‘theory of social interests’, ‘social interests (are) closely  related ‘crime- repression’ .
His basic  assumption principle ..
‘Legal Phenomenon’ is Nothing, BUT Social phenomenon, and as such he treated Jurisprudence is to be treated as a Social Engineering.’
(refer. Edgar. Bodenheimer: ‘Jurisprudence – The Philosophy   and Methods of the Law’.)

Pound  insisted  that the interests in Life, Liberty, Security, Religion, Social institutions, and General Progress prevailed as predominant considerations, with Every Individual .

Sociologically ,  these interests  are clearly conceived  by Society  and ‘Any act threatening ‘ their realization calls for  REPRESSIVE MEASURES.
‘SOCIAL INTERESTS’  are protected by Society ..(like Rajasthan Sati Society forces a wife of dead husband need to die on her husband’s pyre,
(however heinous is the idea in a modern societal norms as also under Human Rights’)
That such societies forcefully push the wife on her husband’s pyre, though it is a ‘punishable criminal  offence,  under Indian penal code…this law came by the social reform movements mooted by Rajaram Mohan Roy duly supported by Bentick reform Acts during in British India by causing social awareness (is) was being built up in the relevant such societies and that way sati was fully abolished;
(One needs to wonder how even today it takes place! in the so called Indan Republic) It seems the legislatures, parliament did not do right work is obvious when so judiciary must do its final work and remove such obnoxious practices and bring to justice such mad men , nothing wrong if they are sent to jails life time under concurrent sentences as is done USA, make then to be in prison for 100 years or so.. Then fookish ideas would die on its own.

See today (recently) ,  a so called  Minister of state in Home Affairs  Mr.  Harishbhai recommending that hindu women once married to a man cannot complaint of ‘rape’ (forceful sexual compulsions); (unacceptable ‘sexual’ intercourses) ; do you call PM Modi is right to have such kind of madsmen as minister, i do not approve of , why i may ask the PM better resign as you cannot govern a country sensibly, i some times wonder why our courts are so docile not to take a suo motu cognition and move judicial action, it is not v=concered with politics but social norms what should be in the 21st century of human rights. Incidentally, India is a signatory to humsn rights concention of UN.
(when the wife does not ask for;  but forced in, by the husband) by her own husband , is obvious rape, send him for justice);
and that way this ‘worthy’ Minister (none in parliament took him to task what it shoes  please) says better we go back to that old concept… if it happens it is attrocious ..
well known women’s advocate in Bombay Ms. Flavia Agnes rightly pointed out ‘barbarian idea’ ,in an article on 16th May 2015 in the Times of India, Bombay edn, pg…., ;
rightly highlighted the backwardness, as this minister’s idea is anti reformation idea brought by Raja ram Mohan Roy;
that way one can always see there are several ‘backward looking humans’, in every period of time; but if such people get political power they would obviously and definitely misuse…and cause choas in the society.
is the real thought Pound clearly evidenced in his theory of basic assumption in his theory of social interests but could be correctable ;
provided we have a modern Social Engineering called really evolved Criminal Jurisprudence, that way philosophy ;
and methods could be carved out through judicial intervention at appropriate time even by Suo Motu interventions by relevant constitutional courts in India;
where as in India, the ‘numbers of rapes’ are growing up, day by day, as the mindset of youth in India  clealy wants to have irregular  sexual encounters, by all kinds of means;
, why even the old engage in, thanks to sickly ideas are ever generated in social media too;
due to mental depravity;
, after social media too is a society  has to take on such ruthless humans.
But where in members engage in self promotions at all costs..;
.this shows how? how human minds are getting corrupted could be seen.very visibly thanks to profuse use of cameras in any space;
instead of finding methods to reduce such activities but promoted for various poverty reasons;
Self restraint  is, that you cannot promote such social unsober activities ; and yet, they be ever get generated;
Law of crimes awards by punitive punishments;
but by Awareness campaigns reins should control, in the same kind of social media, – that would  or might modify one day, faster, in due course of time, is the method; how long one could wait is also another question?;
What could really  assist much better?
Simply passing some sec 66A in indian Cyber Law is a falsity; a false hope  to the public; (rightly severed), by the court.
indeed thank God, the ‘very honorably and rightly deleted’ by ‘quashing’, by the hon Supreme court of India last year (2014 )or so.
Sociologically how well Pound proved his theory everyone knows.

======================

 

Theory of crimes Dr. walter Reckless by his ‘ Actuarial Approaches to the problem of crime causation observed ….. ‘ chances of the criminal  being DETECTED  or REPORTED  depend on , by and large, on one’s own position,in the society  as determined  by his Age, Sex, Race, Occupational and Social status and Residence  and so on.
(Clearly law is a misused mechanism by the very State itself as also by Society when in collusion…see Mandal commision (with most unreliable statistics, and shelved by then PM shri. Morarji desai)  for upgrading backward communities in India though mooted for good and yet’
misused by Creamy layer in that backward society clearly reflects the facts Reckless correctly pointed out…
Creamy Layer in backward community like Yadavs , Kurmies in Bihar want to retain at the very cost of their very poorly placed brothers in their own communities;
that attitude might sooner or later cause internecine civil  wars in the very backward communities;
if they creamy layer in those communities fail to rectify their own thinking;
one should note is thought process is the idea;
Reckless Actuarial Approach very well suggests,
Question  is whether backward Indians would oblige by correcting their own attitudes;
that is where there is a very serious need to build up ‘Social Awareness’ …;
‘if you as ‘creamy men’,  fail to reconcile to realities you might face serious revolts in your own communities’ that such ideas should be floated in the very social media in this internet world for better reach to all remote corners all over the world where this creamy layer is living,
see in Ms. Indra Sahani IAS case hon SC rightly struck down;
And SC rightly  issued contempt Notice to the chief secretary of Kerala government in 1980s:
but the local state government passed a law ‘Creamy Layer among backward classes‘ is also ‘Backward’:
and it has made it to be entitled for backward class Reservations;
though Mandal commission never ever said so..;
from this it is very clear, the  political’ wil’ obviouslyl failed, as ‘creamy layer’  backward lobby was so powerful even at Delhi central government;
that also approved the Kerala Act by presidential assent duly forced by then existing government
that way Reckless is not reckless in his Actuarial Approach is well known.

Problem is ‘fragile political will’,  in a democratic government in India;
that government forces force the constitutional judiciary  to go with it;
, but that way you do not see in USA where judiciary just quashes any irrational legislation;
unlike in India’s IRRATIONAL legislated laws;
that way Law fails to prevail per constitutional tenets;
however Indian constitutional basic tenets are very clear…sometimes , like ex CJI. Mr. Y.K. Sabharwal in a constitutional bench in 2007 january quashed Schedule IX in the First amendment to the Constitution of India, in Coelho  v ST of TN, , that way this bench made clear –  – ‘no Indian parliament could ever pass an Act which cannot be questionable under constitutional tenets’;
however much, the government in Power at parliament cannot bypass such of the constitutional rights dimunition any more;
We have founded, in Constitution of India, under Basic Tenets, right correction steps under judicial reviews..
Yet the parliaments tried to play havoc on the independence of judiciary in india, thank God,Indian Judiciary rightly fetters by its instrument of Judicial Review mechanism.

See recently in National Taxation Tribunal Act, hon SC struck down/Quashed the very Act in Madras Bar Association v Union of India in regard to the matter … ‘National Taxation Tribunal Act’  due several lacunae in the Act;
Similarly now in NJAC Act (National judges Appointments commission Act) there are several lacunaes it was before a 5 member bench at hon SC of India, though very vehemently argued by AG on behalf of government of India;
but very well countered by PIL respondents as also by Amicus Curie in Nariman, others like Mr. Jeet Malani and Mr. Prashant Bhushan and others….probability proved
– that the said irrational Act would be quashed(quashed indeed), as it tries to torpedo the very constitutional independence of judiciary….;
that mean ‘independence of judiciary ‘ from Executive and Parliament would get the judiciary obliterated;
then Executive would Boss over the judiciary … -that might mean obliterating the basic tenet of constitutional propriety;
that Judiciary is virtually ‘independent’, as conceived by the founders of the indian Constitution;

Obviously, parliament or Executive could never have any administrative control  on judiciay;
… that means ‘court decisions’ are always need to be final on all the institutions …. elected institutions;
Parliamentarians if unwise might behave the way the government wanted them to be just ‘yes men’, thanks to favor  lobbyists’ control in making public policies, as that was so…like in 2G Spectrum case, coalgate , against CWG…to name a few.

Therefore, NJAC Act is a most not viable proposition of the Parliament and Executive, virtually executive  has to have no ‘Locus Standi’ before the Constitution of India.
I would recommend that once you retire as judge of the hon SC you should reject any government positions like head of any commissions,;
that would make it clear to Executive you were  paid from Consolidated Fund of India only and you shall not accept any payments from Budgeted allocations by finance ministry;
that way you could save your status that means no CM or PM shall control you for getting their pet ideas to favor some one out of courts’ dispensations.
..Invariably under ‘Policy decisions’ lobbyists get their needs met but only courts can take care of general public interest.

That way Sociologists contend  like any other social behavior  the ‘criminal behavior’ also results  from certain ‘Environmental conditions’..;
..into which no judicial person ever fall into;
more especially the hon S C judges…
see how Madal had to bow to the parliamentary dispensation to upset the ‘Equilibrium’ (balance on all economically weaker sections);
that cannot be interpreted in whatever way you want to .. words in association of words mean differently but one has to read ;
the Article attributed definitions only, and not based upon some Stare Decis precedents…ratios there are attributable to similar kind of facts only, else not valid,…so care is a must in interpreting..;
.but if you make of one error stuble,  you would end up paying heavily;
that is the way today hon S C is taken for granted;
that has to be eschewed by judiciary… that way Roman laws or Hindu laws work under investigation = Mimamsa’.

Every education(drawing knowledge is based upon some veritable knowledge only;
so you cannot  take any and every thing in the way you want…
that way ‘interpretation of Statutes ‘ came into being.
Interpretation means, various methods of appreciation, under different propositions………..

Object of criminal trial –
(i) to secure the accused a ‘fair trial’ in terms of established( under)  principles of Natural Justice;

(ii) to eliminate delay in investigation and trial ;

(iii) to make  the procedure  less complicated and within the reach  of a common man;
What Cr.P.C stands for after 1973 amendment –
– committal proceedings are abolished with a view  to eliminating  DELAY involved in Preliminary  inquiry before  the commencement of trial of offences;
– Offences punishable  with Imprisonment not Exceeding by TWO years instead of Six months  as under the old Code are now triable Summarily;
– Provision for compulsory stoppage  of proceedings by a subordinate court  on  the mere INTIMATiON from the party  of his intention to move  to a Higher court for transfer  of the case  has been  Omitted.
(Code  of 1973 now  provides that the court  hearing the transfer application shall not stall  proceedings  unless  it is necessary to do so in the interest of Justice.)

– Code 1973 provides, the summons  can now be served by

REGISTERED Post as well (also) (sec 260(1) of code.)

(In petty cases, the accused can plead guilty by post  and remit  ‘fine’ specified in the summons)
– Facility  of part heard case being continued  by successors in

office  which was only in respect of  of Magistrates’ courts now EXTENDED to Sessions’ courts  (sec 69(1) n (2), per 1973b code;

– Provision  has been made for legal  aid to the Indigent accused

(sec.304) in the cases triable  by the court of sessions;
– scope  of payment of compensation (sec.357) by the accused

to the victim  of his crime  has been  considerably  widened  by the Code;
– Accused shall be heard  on the question  question of quantum

of sentence under sec 235(2).
Prosecution  shall also  be given  an opportunity  to make  representation against  insufficiency  of punishment quantum awarded to the convict under the same section;
– a new provision  relating to anticipatory bail  u/s 437 has been

inserted in the code.
Note ;

sec 25 A  in the code since 2005 amendment, , a

Directorate of Prosecutions  is established in every State

with a view to separating :
the prosecution work  from  the

police under a new sec 436-A -specifies  maximum

period  for which an undertrial  prisoner can be  detained.
This section provides  during the period of investigation (period ),  inquiry or trial  under code , for  an offence excluding  offences punishable by death , has undergone  detention for a period  upto one -half of the maximum punishment period leviable, specified for the offence , the accused shall be released by the court on his personal bond  with or without security.

Court of crimes function:

  • Redressal   for complainant who is wronged by by the accused criminal act of the offender;
  • Punishment to offender;
  • Fair and equitable (Impartial) trial with a view  to ensure justice in his case.
  • Major task  is to  make sure that innocent( persons ) are not  unnecessarily punished  while or offender do not go unpunished .

in order to  achieve  the  purpose  the courts are inclined  to point out  ‘the deficiencies  and  lacunae’, in the prosecution and  defence version; and  both of them  gradually try  to remove  those shortcomings;

  • Maintain law and order in society  by eliminating  offenders by punishments.

————-

 

Productivity = Psychological roots for Order:(sec.43)(p.178.                 e,Bodenheimer – Jurisprudence)
Productivity  for  ordered relations  among men  may be  traced chiefly  to two inclinations or Impulses that appear to be anchored deeply in the ‘Psyche’,  of human beings.
– Human predisposition  to ‘repeat experiences’ or

‘’arrangements’ (in the past have been ‘found’  to be

Satisfactory’;
– Human beings tend to react unfavorably  to conditions under

which their relations are controlled by ‘Whim’ , Caprice’,  are

arbitrary power, ‘rather than,  by a ‘reasonably stable

determination’ of ‘reciprocal rights and duties’;

Order element  in law (wherever there is a society , there is a law. = Ubi societas , ibi jus’ is the maxim right from days of yore),might also have an ‘aesthetic’ component, which finds  a’ related – ‘question of expression’ in the enjoyment  of Symmetry  in ‘art and rhythm’  in music’ ;

this hypothesis will not  be pursued however,further.
Finally, ‘for quest for  ‘Order’, has a ‘mental (noetic) ingredient which is not primarily  ‘psychological’ in Origin but ‘rooted’  in the structure  of ‘human thinking’ (‘the ‘human need  for thinking in   terms of  of ‘concepts’  and classification is ‘discussed’ in the ‘formation of concepts’(sec.79..pg.379)… ‘essential functions of the LAW, to reduce the multitude, variety, and ‘diversity’,  of actions to a reasonable degree of Order and to promulgate  ‘rules’ or ‘standards’ of Conduct applicable  to certain ‘circumscribed’ types of action or behavior.

To accomplish this task, ‘successfully’’, the ‘Legal Order’  must undertake  the ‘formation’, of ‘technical notions’ and ‘concepts’ designed to aid in ‘classifying’  the ‘multifarious phenomena  and events  of ‘social life’.
Thereby it lays down  the basis  – subjecting  ‘equal and essentially similar phenomena …. ‘to a  ‘unified’ and consistent regulation or treatment’.
Legal concepts  may thus be viewed as working tools used for the purpose of .. ‘identifying’ – by a short hand description – typical situations – (characterized by identical  or common elements)

 

Often recurring fact,  – ‘one person out of anger, spite,  or revenge, strikes another person or inflicts ‘bodily injury(harm)’ on him  is made by law  the ‘referent ‘  of the term ‘battery’,  and is subjected  to ‘certain legal consequences’
When one individual  promises  to  another an ‘act’ ‘in return’, for some commitment  on the part of the other individual , this ‘this s designated  legally  by the term ‘Contract’

—————————————————-

STATUTE imposes a duty in general terms,answer to the question:
_ ‘ as to what remedies are open , depends on the
Language in the Statute’;

  • On the nature of ‘duty’;
  • On the Object of the duty;
  • {other circumstances -if the statute is silent about –  REMEDIES AVAILABLE};

ENGLISH LAW  as to public authorities:

  • ‘Wilful neglect  of a public duty – is a INDICTABLE OFFENCE , PUNISHABLE BY FINE,  OR IMPRISONMENT – R V HALL,(1861) QB.747, HALSBURY, 3RD EDN. VOL.19, PAGE 139;

IN A VERY early English case ,a Magistrate was tried  for failing to take PROPER  steps  to suppress a riot ( R V DAVIS, (1754) Sayer 163 – however he was acquitted on the facts.
In 1979, as alleged failure  by a police official  to stop fight was made  the SUBJECT MATTER, OF AN INDICTMENT.(R V  DAVIS(1979) QB 722;

APART from these public law remedies;
–   ORDINARY REMEDIES – private law – sometimes effective;

–   BREACH OF DUTY BY A PUBLIC AUTHORITY, ‘ACTIONS’ FOR damages – for breach of a statutory duty PLAY  an IMPORTANT PART, (REFER WADE, ADMINISTRATIVE LAW(1982) PAGES. 624 and 666)
ACTION FOR BREACH –

  • GENERAL RULE OF LAW- ;
  • ‘When administerial duty is imposed , an action lies  for breach of it without MALICE OR NEGLIGENCE, (Pickering v James, (1873) Law Reports 8, Common Pleas 489,503.)
  • In 1842,  the law was thus stated by the, House of Lords- ‘When a person has an important duty to PERFORM  , he is BOUND to perform that duty;
  • and if he neglects or refuses to do so and an individual sustains  INJURY, that lays the foundation  for an Action to recover damages by way of compensation for an action to recover damages by way of compensation for the injury that he has so sustained’.(Ferguson v Kinnoul.(Earl)(1842) CL & F 251, 280)

DAMAGES:
–  NOT IN EVERY CASE A LIABILITY WILL ARISE;
–  Court  will have to construe the ‘statutory provision to

decide

  • whether the duty  was intended for PUBLIC only;
  • whether  the ‘intention’ was to give remedy to a private person  also?
  • THEN IT WOULD seem to be an absolute liability;
  • Lord justice Mr. Farewell, held .. ‘ The breach of a statutory duty  created for the benefit of an individual  or a class  is a TORTIOUS ACT, ENTITLING ONE  who suffers  special damage therefrom  to recover such damage against Tortfeasor. ( DAWSON AND COMPANY  V BINGLEY   URBAN DISTRICT COUNCIL,(1911) 2  KB 149,156);
  • FURTHER,  adding, – ‘The breach of a statute  is sufficient cause of action, because the Tortious  act being alone in breach of the statute becomes , by legal intendment ,made MALICIOUSLY .
  • Act may apart from the Statute, be Innocent or its omission may be  not actionable, BUT  THE ENACTMENTS MAKES IT ACTIONABLE.’

CERTAIN ILLUSTRATIVE CASE LAW CITATIONS

  1. CUTLER V WANDSWORTH STADIUM  LTD (1949) A C 398 (HL) – failure to provide facilities  as per requirement  by the Betting &  Racing Act, 1934. (here dog racing issue involved);
  1. Lord Simonds said in the same above  case.. ‘if a statute has no scheme of its own  for penalties  and enforcement , the court  is sympathetic to an action  for damages,  ‘for if it  were  not so, THE STATUTE  WOULD BE  A (JUST) PIOUS  ASPIRATION,’cf in Booth v National Enterprise Board (1978) 3 All ER 624;
  1. For failing to mark the site for ‘fire plug’ accurately , so that delay  in finding  it caused  the loss  of plaintiff ‘s building (Negligence was also  found )  {DAWSON  & CO V BINGLEY UDC (1911)2 K B 149,156, 159 Distinguishing , Atkinson v Newcastle etc waterworks (1887)2 Ex.D.441(Negligence);

CIRCUMSTANCES LEADING TO FREQUENT INVOCATION OF  ’WRIT’ JURISDICTION:
1. CONSTITUTION OF INDIA  introduced the Concept of Fundamental Rights

UNDER PART III,for first  time ….State action can be challenged in law, if it

VIOLATES – FUNDAMENTAL RIGHTS;
{GOVERNMENT  OF INDIA ACT 1935 RECOGNISED ONLY ‘LIMITED

PROTECTION}’ now ENLARGED BY CONSTITUTION BY FULL FLEDGED

FUNDAMENTAL RIGHTS  IN PT III };

2. SCOPE OF JUDICIAL INTERPRETATION , ELABORATION, N

CLARIFICATION IS ‘PATENT’ – OBVIOUS  –  CAN BE SOUGHT

PRINCIPALLY (NOT EXCLUSIVELY) BY APPROACHING HIGHER

JUDICIARY – ART 14 -MOST  OUTSTANDING EXAMPLE  OF – ‘LINGUISTIC

ASPECT’ ………………….. ……………

3. WIDTH …..

—–

Philosophy is a hypothetical  interpretation of the ‘unknown’;(as in metaphysics) or of the ‘inexactly’ known (as in …political philosophy, it is the front trench , in the searches of ‘Truth’);
it is the captured formality , and  behind  it are those , secured region in which, ‘knowledge’ and  out  build one  important marvellous world.
Philosophy  seems to  ‘stand still’, ‘perplexed’ but  only because she leaves  ‘fruits of victory’ to    ‘her’ daughter s ‘the sciences’; and herself  passes on ,  ‘ divinely discontent’ to the – ‘uncertain and unexplained’;
Philosophy is not merely  to have ‘subtle thought’;- ‘not even to found a school’. but so to love  WISDOM as to live. – according to  dictates –  A LIFE OF – ‘ SIMPLICITY. INDEPENDENCE.  MAGNANIMITY and  TRUTH.’
BACON  says .. ‘Seek ye  first ‘the good things’ of the world  and the rest  will either be supplied  or lost  will not be felt’.
Science is indeed ‘analytical’ description;
Philosophy is on the contrary  is just SYNTHETIC interpretation .
Science  wishes  RESERVES  the  whole  ‘into parts’, Organise  into ‘Organs’ -observe into known;
Science  doesn’t  inquire  into ‘VALUES.’   (and indeed  into POSSIBILITIES of things;)
Nor  into  their ‘total or final’ SIGNIFICANCE;

Science  is ‘context to show  their  ‘present  ACTUALITY – and  OPERATION.
It  narrows  the Game RESOLUTELY  (Nash Equilibrium principle ) to the Nature and Process of CHANGE, as they are.
It is IMPARTIAL  on  ‘Nature’  – it  is interested  in the ‘Leg of Flies’ as in the  creative theories of a question.
Philosopher is not content  to  description of facts’; He just   wishes to ascertain its relation to ‘Experience  to general’. to get  at the  meaning  and the worth.
He combines  ‘things’ in ‘interpretative synthesis’;

  • tries to  put together . ‘ better  than before’,  – a great universe watch!

Inquisitive scientist –

– analytically takes part –
– how to gear? –  how to kill?

  • researches on death rates  in retail;
  • kills us ‘wholesale’ in war;
  • Only WISDOM  desires – coordinates in the light of  of all EXPERIENCE  and test –
      • when to heal?
      • when to kill?
        • to construct  meanings of science –
        • to criticize –
        • to coordinate – is end of Philosophy

Today –

science means  –  instruments multiplied, beyond our interpretation

– Synthesis of ideas and events of life;
– Life is full of  ‘Sound and Fury’ SIGNIFY

NOTHING;

  • Fact  is NOTHING  but in relation to DESIRE; – not complete  except  in relation to  Purpose  and a whole
  • Science without philosophy pays without perspective and valuation;
  • ‘cannot save  humans  from – ‘havoc or despair’
  • But Science  gives  us – knowledge’ but  ONLY  Philosophy   can give us WISDOM;

– PHILOSOPHY  means and includes – 5 fields

-LOGIC. -Aesthetics – ETHICS. POLITICS,  and  METAPHYSICS
LOGIC a study  of ideal  method  in thought and  research, observation and introspection. deduction and induction.  and hypothesis and experiment and analysis and synthesis;

  • form of human activity (Logic tries to explain  or understand and guide;
  • indeed  ‘dull  study for most of us’, a great event  in history of thought are  improvements men have made in their methods of think process  n research;
  • Aesthetics – ideal form of study of ideal conduct =

– Socrates  says – ‘ highest knowledge  is  – ‘the  knowledge of good and evil’  ie knowledge of WISDOM OF LIFE;
POLITICS  study of social organization – monarchy,  aristocracy,  democracy,  Secularism, Anarchism,  Feminism, ‘dramatis personae of political philosophy
-Metaphysics  study of ultimate  reality of all change  of the real  and final matter, contrology of mind (philosophy of psychology) of inter action of mind  in the process of  perception of knowledge  (epistemology)….
==========

‘Life and Law has not been Logic:

it has been  experience.  The felt necessities  of the time, the  prevalent moral  and moral theories , intuitions  of public policy , avowed  or unconscious , eve the prejudices which judges share  with their fellow men, have  had a good deal more to do  tan the syllogism in determining the rules  by which men should be governed.’ observed Oliver Wendel Holmes in his book , ‘ TheCommon Law’ (1881)
Yes, this statement might be susceptible to  more than one interpretation, Holmes can be construed  to make two points essentially sound and true possibly.

  • ‘Changes and development ( though viewed by social scientists that development is as elusive dynamics of changes) of legal rules ( though there is no valid  Divine Right Theory is in existence, but laws are made by half learned law makers as Legislators, though though could be unlettered in a democratic environment of 21st century too, however much these illiterage geniuses have been bestowed with human behavior to cheat and defraud their own voters by showing of saying that they are holding so called degrees of attainments in diverse fields from diverse famous schools, obviously fake indeed, yet they have mental satisfaction that they could cheat even the well really learned professors…),(a plenty of such legislators really flood all over, more so in India today and that help them behave as autorcratically as possible, like Bhasmasuras shown in Indian mythology!)  and principles cannot be fully explained and made intelligible, in terms of purely logical analysis of legal concepts, in the first place.
  • Such logical  analysis  is not sufficient tool to rationally conclude  legal controversies;
  • Let us look how the present Indian government  trying to ensure the earlier Indian predecessor government led by Congress party with a disjointed unholy alliances with completely controvertial perceptives of governance wanted to usurp the judicial powers of judiciary by following wolfish idea like convincing the sheep it would take care of welfare of sheep, and similar fashion these great governments run by divergent parties ideologically.
  • – Congress calling itself Secular, and BJP calling itself, Hinduist nationalism, but both really want to cheat the gullible voters in India,  by promissing them that they will for ever destroy the judicial anarchy of very judiciary – a constitutional contrivance of governance to ensure three wings of governing fully independent of each other – Judiciary, Executive and Legislature  but the great idea of National Judicial Advisory Council Act contrived by Legislature  with connaivance of Executive just to arbitrarily rule the indians in india tried to intrude the bulwark of  citizens wellwisher Judiciary for it could take on any illegal rules of legislature with its compatible Executive   to implement such nefarious policies if once Judiciary is controlled in its judicial appointments of judges of high courts or the honorable supreme court, oft considered to be the custodians of the  Constitution  of India.
  • That way, today the NJAC  Act , a constitutional amenment is being tried at the Apex court of India called the Supreme court of India, where the government advocates led by the government law officer – styled as Attorney General of India, while Advocate Generals are the law officers of the States participating in the Indian federation, vehemently argue as to why the Colegium system need to be bettered by the NJAC system which would batter the collegium system hithero functioning. What a ploy when you become the peoples’ representative by being voted in power as legislators, styled as Pariamentarians, in India!.
  • That way Holmes rightly and aptly described ..’ Life of the law has not been logic’!

 

  • One can see how your own Representives in a demcratic environment  could be a great menace, to you – the citizen!
  • When some power is given to rule your lives, how monstrous your own representative could be to you!
  • Logic and Experiece is ‘anti thetical’ to each other, is well projected by Oliver Wendel Holmes, shows he was a great constructive jurisprudential logician himself in late 19th century America.

Holmes in his ‘Agency” in the Collected Papers 50,(1920) says, ‘ the whole outline of law  is the RESULTANT of conflict  at every point (of time) between Logic and Good Sense;
Logic strives for to work fiction out to consistent results,
Good sense do restrain logic;  and at last try to overcome that effort of ‘fiction’ logic provides.
See today on 12.06.2015, AAP and BJP men sweep the Delhi streets just to show they are for the Delhi people whch city had been stinking as the municipal corporation road cleaning  staff went on strike some ten days ago as their salaries could not be paid due to AAP govt at Delhi failed to govern but just in fued with its own Lt Governor, saying governor is a stooge of the union government:
and also just blaming all india service officers do not work implementation of the policies of the Delhi govenment run by AAP party but with all kinds of fake degrees held by its own MLAs, it is alleged ,;
and as a fly in the oil, AAP law minister one Jitendra Kumar  Tomar is arrested and is facing trial for his holding fake degrees, whiell he was a college drop out it is stated..
.that means the politicians just protect all bad characters and grant them jobs with filthy remuneration with all kinds of powers over the very people who elected them,;
just by passing some statutes or resolutions which take the form of fiction of law!;
while good sense is at ransome.
How great Holmes views are ?, one can easily visualize.

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Financial Crises why we faced, why we could face?

By Adv. Prof. Dr.  Gurumurti Balakrishnan Pandipeddhi

 

Factors

 

Financial Economics history is forgotten

 

1930s

1960-1970 financial crisis –  when interest rates  (by  the standards  of the day) were relatively  low made a greater impression  on market participants  than  did  the crisis  that occurred  during that decade :

 

‘when the first time  in the post war period, institutions experienced  substantial  disintermediation  during the crisis  – credit crunch – of 1966, fears abounded – a kind of financial paralysis     came over (fell over)  the financial markets.’ even though the ‘prime  loan rate  at its peak reached only  6 %  and (high grade corporate bonds  moved to 6.3%) – when Penn central railway failed  in 1970, – the market  went  into a deep shock.       

p.8 (Henry Kauffman – Road to financial reformation @ 2000  -John Wiley & Sons Inc)

1966 – Post war period

 

Both crisis  caused financial  system was closer to  being ‘immobilized’ than  when prime  loan  rate  reached 21%.

 

1980s – financial system closer to being immobilized than  when the  prime  loan rate  reached 21 ½ %  early in the 1980s

 

Volitalitality of securities prices  and the currencies  had become deeply rooted   feature of the new financial world (emerging) – markedly different  from earlier times – fixed -income markets.

 

Dramatic increases in volatility  is readily apparent -high and low yields –  of high grade bonds (corporate) for each year  since 1920.

 

Difference averaged well under 50 basis points  from 1920  through 1969 , rose beyond to 98 basis points  in 1970s, and then just jumped  to 273  basis points by 1980s.  

 

Ref: professor  Benjamin  Cohen: ‘In  Whose Interest?  International  Banking  and American Foreign Policy’ (New Haven , CT , Yale Univ press  1986)

 

Credits jumped to finance Edward I and Edward II  and the King of Naples in the 14th century –

 

Lenders never could get  at the collaterals that  was extended to secure the loan , when Florence  was the world’s  key banking centre in 14th century.

 

“ instead of being repaid , the lender was willy-nilly  forced  to lend more and more and to throw good money after bad (debt) in the hope to save  what he had already  lent.’

 

When England pioneered  new horizons in international  finance in the 19th century, many  initial successes were followed  by debt  default problems during the numerous crisis  involving  countries and financial Institutions.

 

Eg. Bearing Brothers  bailed by (British) Bank of England and by other institutions , when Bearing.. over extended  itself to the weakening Argentina  in 1980

 

 

Adam Smith rightly diagnosed , ‘No part of  society can surely be flourishing  and happy of which  the ‘far greater part of its members are poor and miserable’.

 

It is very interesting to note  he did not  favor or advocate ‘a flat tax’.

 

He also said, ‘The subjects (today citizens)  of every state ought to contribute towards the support of government, as nearly as possible, in proportion to their respective abilities’.

 

In his ‘Theory of Moral Sentiments’ when he was just 36 years old, (work hardly remembered today) – an investigation of considerable  range and insight  that earned Smith  great renown in his day, indeed.

 

He expounded on such matters  as the proprietary of action, the objects of reward and punishment , the character  of virtue, and the  practice of philosophy.

 

These are hardly  the subjects economists would delve deep into today.

 

In his 53rd year he wrote Wealth of Nations, being a Scottish social philosopher in 1776 – written in grand style –  and completely ‘free  of the kind of mathematical apparatus common to today’s learned journals –

 

it endured the test of time -born the world’s greatest  capitalist Nation – America

 

–  it is one of the most perceptive and influential treatise (work)   of the Modern Age.

 

His eloquent argument

 

-it is part of human nature to strive for economic growth

 

– best be achieved  through ‘unfettered competition, the division of labor, and free trade’.

 

He believed the State should play a very limited role.

 

Governance should be properly confined to safeguarding society from violence and invasions, to protecting every member of society  from ‘injustice’ oppression.

 

It has  to provide certain  ‘public works and institutions’ only.

 

In his death in 1796(?)  , He made it clear , ‘he would no doubt applaud  the rise in ‘living standards;

 

and the rapid industrialization in many parts of the world – that has been;

 

–  driven  by the ‘kinds of innovations and divisions of labor , he advocated, (yet far beyond even his imaginings, one might say).

 

US industrial worker toiled 10 hours day, six days a week to help him bring home $.375 a  year.

 

Adam Smith studied mathematics, natural sciences , philosophy and classical  writings.

 

One can see his erudition of his reading reflected  clearly ‘ in his comprehensiveness of his economic thought’.

 

A professor in Glasgow university in moral philosophy.

 

Potential excesses of capitalism he warned could be potentially dangerous to society.

 

The individuals need to pursue  their ‘self interests’ ; society would benefit  as long as ‘self interest is restrained by competition.

 

He warned ‘competition could be compromised

 

   

 

There was a congressional testimony before US Congress( in the light of 2007-08 financial crisis) by  Dr. Henry Kaufman of what shall be financial reformation in the light of the crisis:

 

He said, he believed:

 

  1. ‘Many of the current regulatory bodies should be eliminated.  In our rapidly changing

           financial  system, in which  institutions perform  multiplicity of  services , is  it efficient  to

           have  so many regulators  on both federal and state levels?

 

These regulators are vestiges  of our past  financial  development.

 

At times, they  compete  with each other , and they do not  have an integrated (approach)        

view  of today’s financial world.

 

2 Centralised  monitoring and  regulation  of our financial system should be established.(I

           continue to urge as I  did in the Congressional testimony …2008 , a year ago),;

 

that the prudential (norms) responsibilities of the Fed Reserve should be enlarged  to encompass    institutions other than banks

 

;or the National  Board of Overseers should be  established that would monitor  and promulgate – codes of minimum  behavior for all major financial

          institutions.

 

  1. Financial  institutions  should be  required  to report  their assets, at the lower cost  or    

           market value.

 

Losses  would then be quickly recorded , including  managers of financial      

           institutions  (have ) to turn (around) toward  more conservative policies.

 

  1. There should be  much greater disclosure  by financial market  participants – including

           institutions and corporations  –  in their  fin statements.

 

Assets and liabilities  should not be netted out.

 

Contingent liabilities  should be reported  in detail , thus providing  creditors with the

opportunity  to improve  their ability  to assess  the credit  standing of debtors.

 

  1. If this type of disclosure  (assessment ) continues to be inadequate , then  the official  

           regulatory agencies  should be required  to rate  the creditworthiness  of the financial    

institution under their jurisdiction.

 

The ratings  should be made public after a (some)  delay , thereby  allowing  the institutions time  to remedy  any problems  before the public is appraised.

 

  1. We should    adopt  tax policies  that foster  the enlargement  of equity  capital rather

           than  the excessive  use of debt.

 

In this regard,  the double  taxation of dividends  and capital gains tax  on equity  shares  

should be eliminated (to encourage equity participation if investors are interested).

 

  1. The official regulatory  agencies should issue  regulations  that require  the gradual  

           enlargement of  capital base of the institutions under their supervision (review).

 

  1. To contain the debt problem , international  cooperation and coordination must be  

            strengthened (augmented) . A new  official international agency  consisting of  key

            central banks  and other officials , should be  established.

 

This organisation  should  work  toward achieving  uniform accounting , capital , and  

reporting  standards  of major  financial institutions.

 

It  should  monitor  more and more closely  international  capital flows  by

            promulgating better reporting  standards.

 

In the world with  a rapidly  growing web of financial linkages, such improvements are

essential not only to rein in debt  growth but also to achieve  monetary policies   

(balances).”

 

Designed to structure  world of finances of a  past few decades ago, might be conservative  but needed today to remedy the current problems as present standards are not adequate safeguards for fiduciary interests.  

 

Too big to fail standards being a promoter of very large institutions; that get bail out from

taxpayer’s exchequer funds – indeed most ‘unethical process’;

 

that need to be avoided, is the theme;

 

besides no institution would ‘not make merry go rounds’ with taxpayers’ funds.

 

If it is done, naturally another financial crisis might be forced on people.

 

Conclusion:

 

It is high time governments all over need be conservative least another financial crisis surfaces; one need to be warned under any calculations, if any more financial crisis with in 20 years from 2007-08 it would make whole world very poverty stricken as no one would accept another’s credibility, a great chaos that would be; besides end of ‘paper currency’ the great idea of Maynard Keynes would just abruptly end, back again to great Barter,
No economy could move any faster! (Ends)