- Minority report, Indian style by Inder Malhotra. This piece vividly portrays the dateline of preventive detention laws and judicial responses
- Laws without Accountability. A critical review of the new anti-terror law from EPW
- Cash for Votes Sham . Another blot on Indian democracy. EPW on the skewed investigation on the cash for vote scam
- The Competition (Amendment) Bill 2007: A Review and Critique by Subhadip Ghosh , Thomas W Ross in EPW
-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.
Friday, December 26, 2008
Wednesday, December 24, 2008
Tuesday, December 23, 2008
- THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (RESERVATION IN POSTS AND SERVICES) BILL, 2008 introduced
- THE APPROPRIATION (No.4) BILL, 2008 "to authorize payment and appropriation of certain further sums from and out of the Consolidated Fund of India for the services of the financial year 2008-2009, as passed by Lok Sabha, be taken into consideration.
- THE SOUTH ASIAN UNIVERSITY BILL, 2008
- On the comments of AR Antulay in relation to the killing of ATS Chief.
Monday, December 22, 2008
On deciplinary enquiry
ROOP SINGH NEGI v. PUNJAB NATIONAL BANK & ORS. Civil Appeal No. 7431 of 2008. Date of Judgment 19-12-08
On proving a will
Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors. Civil Appeal No. 7434 of 2008. Date of Judgment 19-12-08
M/s. B.S.N. Joshi & Sons Ltd. v. Ajoy Mehta & Anr. Contempt Petition No. 245 of 2007 in Civil Appeal No. 613 of 2006. Date of Judgment 19-12-08
The court finds contempt, accepts the apology and grants substantive relief while disposing of contempt petition.
Awarding sentence below the statutory minimum
HARENDRA NATH CHAKRABORTY v. STATE OF WEST BENGAL. Criminal Appeal No. 2086 of 2008. Date of Judgment 19-12-08
The case arose under Essential Commodities Act and the appeal was admitted on sentence. The court held that India do not have any statutory sentencing policy (State of Punjab vs. Prem Sagar & Ors. 2008 (9) SCALE 590). The legislative scheme of sentence laid out in certain Acts, where legislative intent is clear should be applied though sentence less than the prescribed minimum may be imposed in exceptional circumstances.
CJI on More Courts for Speedier Justice.
The Hindu Leaderpage Article by Joseph Stiglitz on the Future of Capitalism.
Amendments to Indian Insurance Law.
Friday, December 19, 2008
Judge, Chief Justice of the High Court is not required to consult the collegium of the High Court. Additionally, there is no requirement of enquiry by the Intelligence Bureau. The Chief Justice while sending his recommendation has to furnish statistics of month-wise disposal of cases and judgments rendered by a Judge concerned as well as the number of cases reported in the Law Journals duly certified by him. Further information required to be furnished regarding the total number of working days, the number of days the concerned Judge attended the Court and the days of his absence from Court during the period for which the disposal statistics are sent.
also undesirable to continue him as an Additional Judge.
Thursday, December 18, 2008
to encourage settlement of the dispute and, with the agreement of the parties; the arbitrat tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.
(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
(3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitral award.
(4) An arbitral award on agreed terms shall have the same status and effect as any other arbitral award on the substance of the dispute.
Wednesday, December 17, 2008
NIKITAS E. HATZIMIHAIL, THE MANY LIVES—AND FACES—OF LEX MERCATORIA: HISTORY AS GENEALOGY IN INTERNATIONAL BUSINESS LAW
Tuesday, December 16, 2008
Friday, December 12, 2008
(i) to make an uniform single cadre of District Judges by merging theposts of District Judges, Addl. District Judges, City Civil Court Judges, 2
Chief Judge and Addl. Chief Judges of Small Cause Court, with effect from13.11.1991 or alternatively with effect from 31.3.1994 (or furtheralternatively from 1.7.1996) with inter-se seniority being determined withreference to the date of entry into service in the said posts.
(ii) to withdraw the Maharashtra Judicial Service (Seniority) Rules 2007(for short the `Rules') and make rules in regard to seniority, in conformitywith the decision of this Court, by having a single uniform cadre of DistrictJudges (by merging the aforesaid multiple categories of posts) with effectfrom 13.11.1991 or 31.3.1994 or 1.7.1996; or in the alternative, to quash thesaid Rules in particular the proviso to Rule 4(1) of the said Rules.
(iii) to withdraw the draft gradation list of District Judges circulated on30.3.2007 and make the said list as on 13.11.1991, or 31.3.1994 or 1.7.1996on the basis of entry of the Judicial Officers in the cadre as DistrictJudges/Addl. District Judges/City Civil Court Judges/Chief Judge and Addl.Chief Judges of Small Court."
Chantal Thomas, Re-Reading Weber in Law and Development: A Critical Intellectual History of 'Good Governance' Reform
Wednesday, December 10, 2008
Monday, December 8, 2008
State of Goa v. Pandurang Mohite, Criminal Appeal Nos. 598-599 of 2002 . Date of Judgment 8-12-08
Sunday, December 7, 2008
Farhd K. Wadia v. Union of India & Ors., Civil Appeal No. 7131 of 2008. Date of Judgment 5-12-08
Dismissing an appeal against the rejection of a petition for certiorari, seeking direction to the Maharashtra Government to grant permission for music concert in “silence zone” (as per Rules 2 (e) and 2(f) The Noise Pollution (Regulation and Control) Rules, 2000,) the SC reminds us about the value of silence.
"(a) There will be complete ban on the use of horn type loud-speakers within city residential areas and also prohibit the use of play back of pre-recorded music etc. through such horn type loud- speakers unless used with sound-limiter.
(b) In cultural functions which are live functions, use of such pre-recorded music should not be used excepting for the purpose of announcement and/ or actual performance and placement of speaker boxes should be restricted within the area of performance facing the audience. No sound generating devise should be placed outside the main area of performance.
(c) Cultural programmes in open air may be held excepting at least before three days of holding Board/ Council Examinations to till examinations are completed in residential areas or areas where educational institutions are situated.
(d) The distance of holding such functions from the silence zones should be 100 meters and in so far as Schools, Colleges, Universities, Courts are concerned, it will be treated as silence zones till the end of the office hours and/ or the teaching hours. Hospitals and some renowned and important Nursing Homes will be treated as silence zones round the clock."
Saturday, December 6, 2008
From accounts to accountability - A pathological examination of shifting the payment of wages under NREGA through banks, by Jean Drèze and Reetika Khera
Kandahar hijack: passengers to get compensation - The compensation is awarded under the Consumer Protection Act
Friday, December 5, 2008
The order (by the Labour Court under under Section 10 of the Industrial Disputes Act, 1947) appealed against was filed under both Articles 226 and 227.
Clause 15 prescribes as follows
“… [A]n appeal shall lie to the said High Court … from the judgment (not being ajudgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction …) of one Judge of the said High Court or one Judge of any Division Court …"
‘1. The pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Court has to be treated all the time for all purposes to be under Article 227 of the Constitution of India
2. It cannot be put in a state jacket formula that any order of the learned judge that deals with an order arising from an inferior tribunal or the subordinate court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution.
3. An order in a writ petition can fit into the subtle contours of Articles 226 and 227 of the Constitution in a composite manner and they can coincide, co-exit, overlap imbricate.
5. The broad general difference between the two jurisdictions are
a. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction.
b. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made.
c. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.’
- When a cheque was dishonoured "separate liability arose in terms of Section 138" of the Negotiable Instruments Act and the arbitration proceedings and the proceedings under Section 138 arise from separate causes of action.
- The Supreme Court in Trisuns Chemical Industry vs. Rajesh Agarwal and Ors., (1999) 8 SCC 686 has held:
We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for acriminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to anoffence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down thecomplaint at the threshold itself. [The Court also held that quashment of FIR or a complaint in exercise of inherentpowers of the High Court should be limited to very extreme exceptions ]
Thursday, December 4, 2008
Guidelines for the use of inherent power of the court under section 482 of Cr. P.C
Mahindra & Mahindra Financial ServicesLtd. and Anr. v. Rajiv Dubey, Criminal Appeal No. 1966 of 2008. Date of Judgment 4-12-08
The power under the section is designed to prevent abuse of the process of courts and also to secure the ends of justice. Though it is impossible and unadvisable to lay down comprehensive guidelines or formulae, offering illustrative contingencies would be of help. In this judgement the SC offers certain guiding principles, quoting from an earlier determined case. [State of Haryana v. Bhajan Lal (AIR 1992 SC 604)]
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Technicality and incompetents wins at the cost of environment
Gujarat Pollution Control Board v. M/s Nicosulf Industries & Export Pvt. Ltd. and Ors. Criminal Appeal No. 9 of 2002. Date of Judgment 4-12-08
An interesting case which portray the hair splitting arguments on technicality (as to who is competent to file a complaint) and the difference between the “power to sanction a complaint” and “power to authorise the complaint” under sections 49 and 11-A of the Water (Prevention and Control of Pollution) Act, 1974.
The incompetent way in which the Gujarat Pollution Control Board collected and processed the sample opened up an easy route of escape to the allegedly polluting firm.
Was thinking about the accountability of the officers of the Board, who has acted carelessly (or deliberately carelessly).
Designing a remedy
Kashiben Chhaganbhai Koli v. State of Gujarat, Criminal Appeal No. 1967 of 2008. Date of Judgment 4-12-08
The SC in this appeal found a way to design a remedy which is legally correct at the same time not oblivious of reality.
The court rejected the appeal and affirmed the conviction order of the lower court but ingeniously devised a method to show compassion towards the accused who, according to her counsel, is unable to walk due to recent paralytic attack.
Court granted the appellant three months time to surrender herself, as the counsel proposed the plan of approaching the Governor for reduction of sentence under Article 161 of the Constitution.
[The decision which the authors referred to can be found here]
Wednesday, December 3, 2008
Tuesday, December 2, 2008
6.1 Issuing a cheque which is dishonoured is crime in India. But we hardly see any people being punished for bouncing of cheques. People are dissuaded to trust bank cheques. This all because courts in India are awefully overburdened with dishonoured cheque cases.
6.2 Legal experts are unanimous in their opinion that the present system of criminal jurisprudence is destined to fail if the backlog of cases is not substantially reduced. Recently, the Law Commission of India mooted the concept of “plea-bargaining” – pre-trial negotiations between the accused and the prosecution in which if the accused agrees to plead guilty for the
charges leveled against him he would get in exchange certain concessions as a quid pro quo, by taking a lenient view by the courts, particularly in cases of lesser gravity. Actually, the courts have been practically following such a practice, for several years, now.
6.3 A speedy trial is not only required to give quick justice but it is also an integral part of the fundamental right of life and liberty, as envisaged in Article 21 of the Constitution of India.
6.4 The Law Commission of India is of the firm opinion that considering the alarming situation of the pendency of cases and the constitutional rights of a litigant for a speedy and fair trial, the Government of India should direct the State authorities for setting up of Fast Track Courts in the country, which alone, in the opinion of the Law Commission, will solve the perennial problem of pendency of cases, which are even summary in nature.
6.5 The Law Commission is of the view that the backlog of cheque bouncing cases need to be speedily disposed of through this measure lest litigants may lose faith in the judicial system. The commercial circles should have confidence that we have quite faster judicial system.
(a) Fast Track Courts of Magistrates should be created to dispose of the dishonoured cheque cases under section 138 of the Negotiable Instruments Act, 1881;
(b) The Central Government and State Governments must provide necessary funds to meet the expenditure involved in the creation of Fast Track Courts, supporting staff and other infrastructure.
Two alternatives are available to the Government of the day. One is to seek a reconsideration of the three judgments aforesaid before the Hon’ble Supreme Court. Otherwise a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments.
Monday, December 1, 2008
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Power of appellate court while determining an appeal agaist the order of acquittal in a nutshell.
Batcu Venkateshwarlu and Ors. v. Public Prosecutor High Court of A.P. Criminal Appeal No. 1159 of 2001. Date of Judgment 1-12-08
"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
Case relates to payment of interest due to delay in payment of compensation for acquisition of requisitioned property. The Court held:
The petitioner Company entered into an employment contract between with the Respondent. Petition was filed for seeking interim relief against the Respondent thereby preventing him from joining any other employment or engaging directly or indirectly in any business similar to that of the petitioner for the remaining period of his employment. [The agreement in question contained a peculiar termination clause: "As committed above, Mr. Ramakar Jha shall work with the company for 5 years with 3 years as minimum compulsory period, but in case of some extra ordinary situation, if Mr. Jha decides to quit his job after the completion of the compulsory period, then he can do so by serving a prior notice of at least 6 months in writing to the company."]
(a) a negative covenant restraining the right of the employee, during the subsistence of his service contract, to engage in any business similar to, or competitive with that of the employer, cannot be said to be a covenant in restraint of trade and, therefore, hit by Section 27 of the Contract Act.
(b) Even de hors the law, in equity jurisdiction, it is not open for the respondent to state that the relief prayed for by the petitioner of restraining the respondent from joining any other employment or engaging directly or indirectly in any business similar to that of the petitioner for the remaining period of his employment, is unjustified.(c) A contract of service is essentially a contract of trust and faith and the material resources, infrastructure, etc. of the employer cannot be allowed to be used by a rival, through the conduit of an employee divulging the confidential systems developed and used by the petitioner, and that too during the subsistence of the employee's service agreement with the employer.
(b) The consequences for the breach of the negative covenant are not contained in the contract and, as such, the said covenant cannot be enforced.
(c) The negative covenant relied upon by the petitioner is in restraint of trade and, therefore, hit by Section 27 of the Contract Act.