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Rectification of an order thus stems from the fundamental principles that justice is
above all. It is exercised to remove the error and not for disturbing finality. Neither the rules
of procedure nor technicalities of law can stand in its way. The order of the court should not
be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as
inflexible in administrative law as in public law. Even the law bends before justice. Entire
concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness.
If the court finds that the order was passed under a mistake and it would not have exercised
the jurisdiction. The erroneous assumption that in fact did not exist and its perpetration shall
result in miscarriage of justice then it cannot on any principle be precluded from rectifying the
error. Mistake is accepted as valid to recall an order.
The foundation of the judiciary is the trust and the confidence of the people in its
ability to deliver fearless and impartial justice and as such no action can be permitted which
may shake the very foundation itself. The rule of law is the foundation of a democratic
society. The judiciary is the guardian of the rule of law and if the judiciary is to perform its
duties and functions effectively and remain true to the spirit with which it is sacredly
entrusted, the dignity and authority of the courts has to be respected and protected at all
costs.
Justice is supreme and justice ought to be beneficial for the society so that the
society is placed in a better-off situation. Law courts exist for the society and ought to rise up
to the occasion to do the needful in the matter, and as such ought to act in a manner so as to
sub serve the basic requirement of the society. It is a requirement of the society and the law
must respond to its need. Judicial discretion cannot be guided by expediency.
Courts are not free from statutory fetters. Justice is to be rendered in accordance with
law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion
and pass orders based solely on their personal predilections and peculiar dispositions.
Judicial discretion wherever it is required to be exercised has to be in accordance with law
and set legal principles. Judicial function cannot and should not be permitted to be
stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel.
Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics
of filibuster adopted by any member thereof.
Justice means justice between both the parties. The interests of justice equally
demand that the guilty should be punished and that technicalities and irregularities that do not
occasion failure of justice are not allowed defeating the ends of justice. Principles of natural
justice are but the means to achieve the ends of justice. They can not be perverted to
achieve the very opposite end. That would be a counter-productive exercise. Law is a living
organism and its utility depends on its vitality and ability to serve as sustaining pillar of
society. Contours of law in an evolving society must constantly keep changing as civilization
and culture advances. The customs and mores must undergo change with the march of time.
Justice to the individual is one of the highest interests of the democratic State. Judiciary can
not protect the interests of the common man unless it would redefine the protections of the
constitution and the common law. If law is to adapt itself to the needs of the changing society,
it must be flexible and adaptable. Law is a social engineering and an instrument of social
change evolved by a gradual and continuous process.
History and customs, utility and the accepted standards of right conduct are the
dorms which singly or is combination shall be the progress of law. Law is the manifestation of
principles of justice, equity and good conscience. Rule of law should establish a uniform
pattern for harmonious existence in a society where every individual would exercise his rights
to his best advantage to achieve excellence, subject to protective discrimination. The best
advantage of one person could be the worst disadvantage to another.
Law steps in-on to iron out such creases and ensures equality of protection to
individuals as well as group liberties. Man’s status is a creature of substantive as well as
procedural law to which legal incidents would attach. Justice, equality and fraternity are
trinity for social and economic equality. Law is the foundation on which the potential of the
society stands. Law is an instrument for social change as also defender for social change.
The power of judicial review of the executive and legislative action must be kept within the
bounds of constitutional scheme. There may not be any occasion to entertain misgivings
about the role of judiciary in outstripping its limit by unwarranted judicial activism being very
often talked of in these days.
The democratic set-up to which the policy is so deeply committed cannot
function properly unless each of the three organs appreciate the need for mutual respect and
supremacy in their respective fields. When the misuse is within tolerable limits, no uproar is
heard, no media publication is seen. But when the magnitude of misuse assumes a
menacing proportion, outburst of various types becomes noticeable and then a scam
surfaces. A lawyer owes a duty to be fair to his client, but also to the court as well as to the
opposite party in the conduct of the case. Administration of justice is a stream, which has to
be kept pure and clean. It has to be kept unpolluted. Administration of justice is not
something, which concerns the Bench only. It concerns the Bar as well. The Bar is the
principal ground for recruiting Judges. No one should be able to raise a finger about the
conduct of a lawyer. While conducting the case he functions as an officer of the court.
The legal profession is a solemn and serious occupation. It is a noble calling and
all those who belong to it are its honorable members. Although the entry to the profession
can be had by acquiring merely the qualification of technical competence, the honour as a
professional has to be maintained by its members by their exemplary conduct both in and
outside the court. The legal profession is different from other profession in that what the
lawyers do, affects not only an individual, but the administration of justice which is the
foundation of the civilized society. Both as a leading member of the intelligentsia of the
society and as a responsible citizen, the lawyer has to conduct himself as a model for others
both in his professional and in his private and public life. The society has a right to expect of
him such ideal behavior”….If the profession is to survive, the judicial system has to be
vitalized. No service will be too small in making the system efficient, effective and credible”.
It is fundamental that if rule of law is to have any meaning and content, the authority
of the court or a statutory authority and the confidence of the public in them should not be
allowed to be shaken, diluted or undermined. The courts of justice and all tribunals
exercising judicial functions from the highest to the lowest are by their Constitution entrusted
with functions directly connected with the administration of justice. It is that expectation and
confidence of all those, who have or are likely to have business in that court or tribunal, which
should be maintained so that the court/tribunal perform all their functions on a higher level of
rectitude without fear or favour, affection or ill-will.
The Judges are participants in the living stream of national life, steering the law
between the dangers of rigidity on the one and formlessness on the other hand in the
seamless web of life. The great tides and currents which engulf the rest of the men do not
turn aside in their course and pass the judges idly by law should sub serve social purpose.
Judge must be a jurist endowed with the legislator’s wisdom, historian’s search for truth,
prophet’s vision, capacity to
respond to the needs of the present, resilience to cope with the demands of the future and to
decide objectively disengaging himself/herself from every personal influence or predilections.
Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the
constitution and the Act with its interpretative armory to articulate the felt necessities of the
time.
The judge must also bear in mind that social legislation is not a document for
fastidious dialects but a means of ordering the life of the people. To construe law one must
enter into its spirit, its setting and history. Law should be capable of expanding freedom of
the people and the legal order can, weighed with utmost equal care, be made to provide the
underpinning of the highly inequitable social order. The power of judicial review must,
therefore, be exercised with insight into social values to supplement the changing social
needs.
The Judge can not retain his earlier passive judicial role, when he administers the law
under the Constitution to give effect to the constitutional ideals. The extraordinary complexity
of modern litigation requires him not merely to declare the rights to citizens but also to mould
the relief warranted under given
facts and circumstances and often command the executive and other agencies to enforce
and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In
this ongoing complex of adjudicator process, the role of the judge is not merely to interpret
the law but also to lay new norms of law and to mould the law to suit the changing social and
economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.
The society demands active judicial roles, which formerly were considered exceptional but
now a routine. The Judge must act independently, if he is to perform the functions as
expected of him and he must feel secure that such action of his will not lead to his own
downfall”.
Written by
YOGESH KUMAR SAXENA
ADVOCATE HIGH COURT
Vice- President Advocate’s Association, High Court Allahabad
Vice President Of All India Lawyer’s Union U. P. Unit At High Court Allahabad
CHAMBER NO.139, HIGH COURT,
ALLAHABAD
R/O-H.I.G.203, PREETAM NAGAR,
ALLAHABAD PHONE-637720/436451