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Bharat Jurisprudence
DHARMA[1]
SHORT NOTES
- Concept of dharma.
- Bharat Jurisprudence.
I) Introduction –
‘Bharat jurisprudence[2]’ is the study of ancient religious jurisprudential notions existing at that time in India, i.e. Bharat, and the recent trend of Public Interest Litigation (PIL). Both these concepts are studied specifically in the Indian context and as developed in India. Therefore, the study of ‘Bharat Jurisprudence’ is the study of both concepts of ‘dharma’ and PIL. In other words, the study of Indian jurisprudence into two phases, i.e. study of the concept of Dharma and the study of the present concept of Public Interest Litigation (PIL), is collectively called ‘Bharat Jurisprudence’.
The development of jurisprudence and legal theory in India owes as much to the ancient Hindu legal thinkers as it was to the Western Jurists and legal philosophers. Among the great Indian jurists in ancient times were Narada, Jamini, Yagnawalakya, Manu, Kautilya etc. In modern times, great Indian Jurist is Dr B. R. Ambedkar, Justice Chagla, Ex-Chief Justice Dr P. V. Gajendragadkar, Justice P. N. Bhagawati, Justice Krishna Iyar, Nani Palkhiwala etc. The concept of Dharma, i.e. ancient legal philosophy, is studied here.
II) The Concept of Dharma –
The term ‘Dharma’ has different meanings according to the context in which it is used. According to English Writer, the term ‘Dharma’ includes religious, moral, social and legal duties and can only be defined in their context”. According to Hindu scriptures, Hi the term Dharma means “religious rights, fixed principles of rules of conduct and the whole body of religious duty.”
Jiminis View –
The concept of Dharma is a broader one. It includes the concept of law also. According to Jimini, Dharma is founded on revelation, which is conclusive to the welfare of society. According to him, Dharma is that which is ordained by the Vedas. The basis of dharma is conducted and not what you think.
In the ordinary sense, the concept of Dharma is taken to be synonymous with religion. However, the term Dharma has a wider meaning than religion. In fact, religion and law are different facets of Dharma. The concept of ‘dharma’ is used in various other senses also, such as conduct, right, duty etc.
The concept of Dharma generally includes three things viz – 1) religion, 2) duty, 3) the inseparable quality of a thing or an order.
In the first sense, it is abidance to the law of God. In the second sense, it is the duty, e.g. duty of the king to protect his subject etc. In the third sense, it includes essential features of a thing or an object, e.g. Dharma of fire is burning, the Dharma of water is to quench fire etc. Non-violence is the essence of dharma.
III) Sources of Dharma –
The sources of Dharma are Vedas (i.r. Srutis), Smritis, Puranas, Sadachar etc. Vedas are regarded as a prime source of all human knowledge. Manu, Brihaspati, Yagnawalkya and Narada were the sages who expounded Vedic texts. Some sages are described as profound (i.e. interpreters) of dharma sastras, namely Vishnu, Angirasa, Parasara, Vyas, Sankha, Gautama, Vasistha, etc. These sages have merely interpreted Vedas. They are not creators of Vedas. Their work of interpreting Veda is called ‘smritis’; therefore, they are called Smritikars. After smritis comes the Puranas. There are 18 Puranas. Puranas contain details about the creation of the world, the dynasties of Gods, sages and kings, etc. Sadachar, i.e. conduct of virtuous men, is also called an important source of law. Custom is also an important source in the Hindu religion. For interpretation purposes, there is a chronology of preferences, and in case of conflict, Vedas or srutis would prevail on smutis, smutis on purans and so on.
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PUBLIC INTEREST LITIGATIONS[3]
QUESTION BANK
Q.1. Define the concept of Public Interest Litigation.
Q.2. Explain new dimension by way of PIL in enforcement of fundamental
rights.
SHORT NOTES 1) PIL.
SYNOPSIS
I Introduction
II Rule of locus standi
III Public Interest Litigation
IV Instances of PIL
I. Introduction-
We know that to enforce his fundamental rights, one must approach either the Supreme Court under Art. 32 of the Constitution or to the High Court under Art. 226.
However, only persons whose fundamental right is violated can approach the concerned courts to get their rights enforced.
II. Rule of locus standi[4]:-
The traditional rule is that the right to move to the Supreme Court or to the High Court is only available to that person whose fundamental right is infringed. This rule is called the rule of “locus standi”. In other words, the right to file a petition by the aggrieved person is called the rule of locus standi.
III. Public Interest Litigation (PIL):-
Some persons or groups of persons, because of their poverty or socially or economically disadvantaged position, are unable to approach the Supreme Court or the High Court for relief. Therefore, the traditional rule of locus standi (i.e. only that person whose right has been violated can approach the court for relief) is relaxed by the court.
The court now permits public interest litigations or ‘social interest litigation’ from any other public-spirited citizen for the enforcement of constitutional and other legal rights of such socially, educationally or economically disadvantaged persons or groups of persons. This is a dynamic approach of recent days, adopted by the Supreme Court and High Courts; public interest litigation is the most helpful judicial device for the enforcement of fundamental rights of socially educationally or economically disadvantaged (backward) persons or groups of persons. Thus, it achieves the object of social justice enshrined in the preamble of the Indian Constitution. It is an example of judicial activism also.
“Public interest litigation” may be defined as ‘a legal action initiated in a court of law for the enforcement of a public interest or general interest in which the public or a class of the community have pecuniary interest or some interests by which their legal rights or liabilities are enforced”
IV. INSTANCES OF PUBLIC INTEREST LITIGATIONS:-
The following are some instances of public interest litigation.
1. Release of bonded labourers[5]:-
In Bandhu Mukti Morcha V/s Union of India[6]
Facts:- The Supreme Court treated an ordinary letter as ‘public interest litigation’, and when after inquiry, it was found that, in some quarries situated in the Faridabad district in the state of Haryana, there were large numbers of labourers working under ‘inhuman and intolerable conditions’ and many of them were bonded labourers.
Held: The court issued a writ to release bonded labourers and improve work conditions for stone queries.
2. Protection against inhuman treatment[7]:-
In Sunil Batra v Delhi Administration[8]
Supreme Court held that the writ of habeas corpus can be issued not only for releasing a person from illegal detention but also for protecting prisoners from inhuman and barbaric treatment from police.
3. Child welfare:-
Courts have issued various writs for the welfare of children. It has ordered that the child welfare Agencies must ensure the welfare of children; it is their constitutional obligation.[9] Child should not be employed in hazardous employment such as match factories[10]; released children below the age of 18 years who were detained in jails in different states[11] etc.
The following rights are read under Art. 21 through different PILs.
4. Right to get pollution-free water and air[12]:-
In Murli S. Deora V/s. Union of India[13]
Supreme Court ordered the prohibition of smoking in public places to protect the health of non-smokers.
Likewise, PILs’ were issued in various other spheres such as protection of ecology and environment from pollution, giving jobs to disabled, providing education to children of prostitutes etc.
5. Right to education[14].
6. Right to livelihood[15].
In Olga Tellis v. Bombay Municipal Corporation[16].
Supreme Court held– that the right to life under Art. 21 includes the right to livelihood because no person can live without a livelihood.
Therefore, the person has the right to get minimum wages for his work, equal pay for equal work etc.
7. Right of privacy[17].
In People’s Union for Civil Liberties v. Union of India.
Supreme Court Held that- Telephone tapping is a serious invasion of an individual’s right to privacy, which is part of the right to life and personal liberty enshrined in Art. 21 of the constitution.
It also includes the right to live with human dignity and not merely animal existence.
8. Right to get pollution-free water and air[18].
Protection of the environment and ecology from pollution comes under Art. 21. In Murli S. Deora v. Union of India, getting pollution-free water and air is a fundamental right.
Supreme Court ordered– the prohibition of smoking in public places to protect the health of non-smokers.
9. Right to shelter[19].
10. Right to health and medical assistance[20].
11. Right to die- not a fundamental right[21].
12. Right to free legal aid[22].
13. ‘Right to life’ cannot be suspended in an emergency by Presidential order[23].
14. Right to get minimum wages[24].
- Right against solitary confinement[25]
- Right against handcuffing[26]
- Right to travel abroad[27]
- Right against custodial harassment[28]
- Right against delayed execution[29]
- Right to live with human dignity[30]
- Right not to be driven out of state[31]
- Right to a fair trial[32]
Thus, in a number of cases, courts have tried to provide justice to the needy and thereby tried to achieve social justice through PIL.
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[1] धर्म [धर्म ]
[2] भारतीय न्यायशास्त्र [भारतीय न्यायशास्त्र ]
[3] जनहित याचिका /समाजहीत याचिका [जनहित याचिका ]
[4] अधिकृत हक्काचा नियम /ज्याचे हीत धोक्यात आहे फक्त त्यानेच कायदेषीर कारवाही करण्याचा अधिकार/ नियम [आधिकारिक अधिकार / कानूनी कार्रवाई करने का अधिकार केवल उसके द्वारा जिसका हित दांव पर है / नियम ]
[5] वेठबिगारांची मुक्तता [विकलांगों की मुक्ति]
[6] AIR 1983 SC 803
[7] अमानवी वागणूकीपासून संरक्षण [अमानवीय व्यवहार से सुरक्षा ]
[8] AIR 1980 SC 1759
[9] Lakshmi Kant Pandya V/s. Union of Indian (1984) 2 SCC 244
[10] Seela Barse V/s. Union of India (1986)3 SCC 596
[11] (1953) 2 Question Bank 18
[12] प्रदूशणमुक्त हवा, पाणी मिळविण्याचा अधिकार [प्रदूषण मुक्त हवा, पानी का अधिकार ]
[13] (2002) SC
[14] शिक्षणाचा अधिकार [शिक्षा का अधिकार ]
[15] उपजिवीकेचा अधिकार [आजीविका का अधिकार ]
[16] AIR 1986 SC 180.
[17] खाजगी जिवनाचा अधिकार [निजी जीवन का अधिकार ] AIR 1997 SC 568.
[18] प्रदूषणमुक्त हवा-पाणी मिळवण्याचा अधिकार [प्रदूषण मुक्त हवा और पानी का अधिकार ]
[19] आश्रय स्वातंत्र्य [शरण की स्वतंत्रता ] Chamali Singh v. State of U.P (AIR 1996 SC 1051). Supreme Court observed- “ Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually”.
[20] आरोग्य आणि वैदयकीय मदतीचा अधिकार [स्वास्थ्य और चिकित्सा सहायता का अधिकार] In Parmanand Katar v. Union of India. (AIR 1989 SC 2039).
Supreme Court Held– that it is the professional obligation of all doctors, whether governmental or private, to extend medical aid to the injured immediately to preserve life without waiting legal formalities to be complied with by police.
[21] स्वेच्छामरण हा मुलभूत अधिकार नाही [स्वैच्छिक मृत्यु मौलिक अधिकार नहीं है ] 12The question was, whether the Right to life guaranteed under Art.21 includes right to die?
The Bombay High Court in State of Maharashtra v. Maruti Sripati Dubal, (Suicide Case) 1987 Cr,LJ 549— held that, right to life under Art.21 also includes the right to die and struck down Sec. 309 of IPC, which prescribes punishment for attempt to suicide. The Court listed several instances in which a person may wish to end the life viz, unbearable pain from a disease, poverty etc. But in Gain Kaur v. State of Punjab (1996) 2 SCC 648. Supreme Court overruled the above decision and held- that ‘right to live under Art. 21 does not include’ ‘right to die’ or ‘right to be killed’ and therefore, S. 309 of the IPC is not violative of Art. 21 of the Constitution.
[22] मोफत कायदाशीर माहितीचा अधिकार In State of Maharashtra v. Manubhai Pragaji Vashi (1995) 5 SCC 730. the Court has considerably widened the scope of the right to free legal aid. The Court Held that in order to provide “the free legal aid” it is necessary to have well-trained lawyers in the country. This is only possible if there are adequate number of law colleges with necessary infrastructure, good teachers and staff. Since the Government is unable to establish adequate number of law colleges, it is the duty of the Government to permit establishments of duly recognised.
[23] आणीबाणीच्या वेळी जिवीत स्वातंत्र्याचा अधिकार तहकूब होणार नाही. [आपातकाल के दौरान जीवन और स्वतंत्रता का अधिकार निलंबित नहीं किया जाएगा। ]
In A.D.M Jabalpur v. S. Shukla, ( AIR 1976 Sc 1207) — Held– that Art.21 was the sole repository of the right to life and personal liberty and if the right to move to any court for the enforcement of that right was suspended by the Presidential Order under Art.359 the detenue had no locus standi to file a writ petition for challenging the legality of their detention.
44th Amendment and Art.21:— The 44th Amendment had amended Art.359 which now provides that the enforcement of the right to life and liberty under Art.21 cannot be suspended by the Presidential Order. In view of the 44th Amendment the A.D.M.Jabulpur is no longer a good law.
[24] कमीत कमी वेतनाचा अधिकार [न्यूनतम मजदूरी का अधिकार ] People’s Union for Democratic Rights vs. Union of India (AIR 1982 Sc 1473) (The Asiad Games Case)
Facts– For conducting The Asiad Games 1982 the Central Government started to construct several projects necessary for conducting the various games. It handed over the constructional works to various contractors, who paid very lowest wages, which were not sufficient even for food. People’s Union for Democratic Rights brought Public Interest Litigation under Article 32 against the Central Government alleging that it was exploiting the labour by paying the lesser wages and it also amounted the exploitation of personal liberty and life of the workers, “to live with human dignity”.
Held– Supreme Court held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.
[25] एकांतवासाच्या षिक्षेपासून मुक्तता [एकान्त कारावास की सजा से मुक्ति ]
[26] बेडयापासून मुक्तता [बंधनों से मुक्ति ]
[27] परदेषी प्रवासाचा अधिकार [विदेश यात्रा का अधिकार ]
[28] कैदेत छळाविरुध्द अधिकार [हिरासत में अत्याचार के खिलाफ अधिकार ]
[29] शिक्षेच्या उषिरा अंमलबजावणी विरुध्द अधिकार [ सजा के देर से निष्पादन के खिलाफ अधिकार ]
[30] मानवी प्रतिश्ठेने जगण्याचा अधिकार [मानवीय गरिमा के साथ जीने का अधिकार ]
[31] राश्ट्राबाहेर नहाकलणेचा अधिकार [देश के बाहर तैरने का अधिकार ]
[32] योग्य पद्धतीने खटला चालविणेचा अधिकार [निष्पक्ष सुनवाई का अधिकार ]