Change - a fact of human life. We may not be aware of it in our day to day experience but it continues to affect us in one way or the other. A hundred and thousand years might be a moment in the life of rocks and mountains but in human society, changes take place in the course of merely a generation or two. Dharma, law and justice; are constitutive of change and the self-identity in India. A situation which may be coined as a ‘pluralism of ideologies’. The focus is on the concept of law and justice with Dharma in Indian thought.
- Justice, like just about everything else in ancient India, has been a much debated topic since time immemorial. Justice is positive and its realization depends on law; however justice is not the same as law; and they have a means to end relationship.
- Dharma is the foundation of legal ordering in India. Often best be translated as 'justice,' though dharma also means law, rightness (as opposed to wrongness), religious ethics, and simply the way things ought to be or even the way things truly are. Dharma is different from mere traditional law which was a coexistence of justice largely isolated from each other.
- Legal ideologies which have brought a new sense of selfhood to all communities in India, determine the meaning-content and goals of life in society; a basic factor in justice.
Abortion is a thorny issue in the economically advanced western countries even today. In spite of scientific outlook and 'modernity' there is no consensus solution. Though I myself, in my own period and culture, violently oppose abortion. If I were a law-giver nowadays, and were to enter our contemporary debates about abortion, one can imagine the sort of stance I would take.
- Can every woman choose whether or not to have an abortion? This would be relativistic, at least to the degree that it acknowledged different ideals for different individuals.
- No woman can have an abortion? This would be univocal.
- Or both – ‘Every woman can choose whether or not to have an abortion’ and ‘No woman can have an abortion’. This would be contradictory.
A woman who already has three children and is over thirty can have an abortion, and a woman who has no children and is under thirty cannot have an abortion' (influenced by the infinite varieties of the human conditions). But what about, a woman over thirty with no children; or that of a woman under thirty with three children?
Despite the relativity of Dharma, its context is sensitively, however, paradoxically guards Indians from the dangers of true relativism. In any given circumstance, there is only one thing to do – Change.
Wednesday, November 25, 2009
Thursday, November 12, 2009
Judicial Activism as Judicial Creativity or Liberal Interpretation
Two sides of the same coin - The modern judge of the common law, in India, is controlled in any temptations to activism. The judge's boldest ambitions are held in check by opportunity, need, inclination and the judicial method. The community expects honesty, integrity and learning, of Judges. Increasingly, it also expects efficiency, timeliness and attention to case management. Prejudice and partiality have no place in the judicial function. The people have a right to expect the judge to be calm, objective and neutral.
Society is slowly and somewhat reluctantly coming to realize that the "fairytale" of the declaratory theory of the judicial function is false and always was. But there is no clear divide which marks off the limits of judicial creativity and activism and liberalism. Our communities have come to understand that some measure of "judicial activism" is not only permissible but is traditional in our system of law. Moreover, it is beneficial to the noble cause of justice under the law. The challenge for modern judges is to find where the line lies in a particular case, at a particular time and place. Each judge knows that limits exist.
A weak society leaves all or most of its hardest decisions to the courts. The burdens which society casts on its judges are greater today than ever before. The judges are the servants of the law and of the societies. They must continue to find the sources of our discipline in legal authority. But when new problems arise, when the common law has no exactly analogous decision or where (as it so often the case) the Constitution or the legislation is ambiguous, they must also look to legal principle and legal policy.
Judges do not usually have the privilege to decline the obligation of decision. Sometimes they will err, for that is inherent in the human condition. But if they search for the solution to the particular case with the illumination of legal authority, legal principle and legal policy and are sometimes called "judicial activists", one must accept that appellation with fortitude. Our activism has limits as every one of us knows. But in a real sense the common law itself is the product of "judicial activists". The most they can hope is that they are successors, worthy in their time, to the great spirits who have preceded them. It is not always possible to declare law in real life situations. Liberal Interpretation penetrate, slowly but steadily!
Therefore, there is a need for a midway to define the judge’s role. Judges may declare law by making it while discovering it within the domain of legal world. However, “Judges ought to remember that their office is ... to interpret law, and not to make law." "To know how ordinary people ... think and live.... You must have mixed with all kinds of people and got to know them.... If we are to remain a democratic people those who try to be guided by public opinion must go to the grass roots." To conclude I would like to conclude by stating,
Justice Stephen Breyer, was reported as saying that a "bright line" between permissible and impermissible judicial creativity did not exist not did liberal thinking. – Two sides of the same coin!!
Society is slowly and somewhat reluctantly coming to realize that the "fairytale" of the declaratory theory of the judicial function is false and always was. But there is no clear divide which marks off the limits of judicial creativity and activism and liberalism. Our communities have come to understand that some measure of "judicial activism" is not only permissible but is traditional in our system of law. Moreover, it is beneficial to the noble cause of justice under the law. The challenge for modern judges is to find where the line lies in a particular case, at a particular time and place. Each judge knows that limits exist.
A weak society leaves all or most of its hardest decisions to the courts. The burdens which society casts on its judges are greater today than ever before. The judges are the servants of the law and of the societies. They must continue to find the sources of our discipline in legal authority. But when new problems arise, when the common law has no exactly analogous decision or where (as it so often the case) the Constitution or the legislation is ambiguous, they must also look to legal principle and legal policy.
Judges do not usually have the privilege to decline the obligation of decision. Sometimes they will err, for that is inherent in the human condition. But if they search for the solution to the particular case with the illumination of legal authority, legal principle and legal policy and are sometimes called "judicial activists", one must accept that appellation with fortitude. Our activism has limits as every one of us knows. But in a real sense the common law itself is the product of "judicial activists". The most they can hope is that they are successors, worthy in their time, to the great spirits who have preceded them. It is not always possible to declare law in real life situations. Liberal Interpretation penetrate, slowly but steadily!
Therefore, there is a need for a midway to define the judge’s role. Judges may declare law by making it while discovering it within the domain of legal world. However, “Judges ought to remember that their office is ... to interpret law, and not to make law." "To know how ordinary people ... think and live.... You must have mixed with all kinds of people and got to know them.... If we are to remain a democratic people those who try to be guided by public opinion must go to the grass roots." To conclude I would like to conclude by stating,
Justice Stephen Breyer, was reported as saying that a "bright line" between permissible and impermissible judicial creativity did not exist not did liberal thinking. – Two sides of the same coin!!
Friday, November 6, 2009
Compatibility - Reason for Marriage or Divorce?
It’s simple – if compatibility is one of the reasons why people commit themselves into marriage, then why can’t incompatibility be a reason (ground) to seek a divorce (in India). No, I am not discussing about the various reasons for the failures of marriages today and nor am I giving my opinion about why is the divorce rate increasing or how to save on to your marriage. Does one need a degree in psychology, counseling, or social work to understand the compatibility ratio or does one need a marriage counselor?
In several western countries there are more than 15 reasons (incompatibility being one of them) considered sufficient grounds for divorce. Adultery, cruelty, desertion, impotency and chronic disease (5 reasons) are the categories for initiating divorce proceedings in
Marriage as a closure should be enabling, not constricting. Marriage, for various reasons seems it cuts out of our lives than for what it makes possible within our lives. The central secret seems to be in choosing well. There is something to the claim of fundamental compatibility. Good people can create a bad relationship, even though they both dearly want the relationship to succeed. It is important to find someone with whom you can create a good relationship from the outset. Unfortunately, it is hard to see clearly in the early stages. Smita and Jay were childhood friends. They grew up together, went to the same college, same friends, parents were happy, etc, etc. They married each other. Reasons could be - social acceptability, or sexual favors or the logical or “right” thing to do at that time. But - people change because they grow up. They grow up because times change.
Smita changed. She is not the same person Jay knew in college. She does not want the same things from life that she thought she wanted at 21. Now she is 28. But Jay has beliefs that he has ever since he remembers and will probably have it for the rest of his life. Does this put either of them on the wrong or bad side of life? Now, they are embittered and petty in their dealings with each other. At best, they have mutual toleration of each other. They are growing apart and living in separate worlds where one shares the business of life, without touching the heart. Why subject oneself to a lifetime of loveless nights and bickering days.
Smita decided to seek a divorce. She kept the lawyers at bay by refusing to initiate the divorce proceedings and seeking false allegations on one of the 5 reasons of the Indian Law. Her say – Jay is a great guy and a good human being…just not compatible with her. It is simple!!
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