Article Reference

Intention and Interpretation by Daniel Austin Green. At SSRN

Questions of interpretation for the author are questions of intention. A theory of interpretation should ideally start from a theory of intention. This essay, the author repeatedly suggests that, do not endorse one method of interpretation over other but discuss all theories of interpretation. Fundamental questions about the very nature of intention are important to discuss to understand arguments about legislative intent and thereby interpretation. The work draws attention to the performative issued involved in interpretation. It is argued that, 'law does not simply exist; law takes its very meaning through the verbal and actual rendition of it by human actors' and 'law relies on its human exposition for its continued existence and relevance'. Reference to interpretation of music and literature is made to garner support for intentionalist methodologies.

News

• “Consider child’s prospects while awarding compensation”
  

Law Commission of India Reports

1. Irretrievable Breakdown of Marriage – Another Ground for Divorce (217th Report)
   
2. Need for Justice-dispensation through ADR etc. (222nd Report)
3. Need for Ameliorating the lot of the Have-nots -Supreme Court’s Judgments (223rd Report)
4. Need for Speedy Justice – Some Suggestions (221st Report)
5. Need for Family Law Legislations for Non-resident Indians (219th Report)
   

• The reports are available at http://lawcommissionofindia.nic.in/

Reflection

Was it necessary for the SC?

J. Venkesan in today's The Hindu has reported about a judgment by SC titled; Joint ventures will ease housing shortage, says Supreme Court. The court seems to have recommended the Ministry of Urban Development to adopt joint ventures - public private partnership - to address the housing problem. I am yet to read the full judgment and wonder was it necessary for the court to give its opinion/recommendation on a policy matter, which stands in the domain of other branches of the government.

Article Reference

THE CONSTITUTION OF INDIA: SYMBOL OF UNITY IN DIVERSITY . By M.P Singh and Surya Deva

This article available at SSRN is a primer on India Constitution and gives in a nutshell the goals, spirit, provisions and the working of the constitution in turf. It argues that the Indian Constitution is native in spirit and that essentially is the reason for its survival. The article was written 2005 and the reader may have to update the changes thereafter.

News

• Was this election really fair and free? - Yogendra Yadav in today's the hindu, taking stock of the general election (2009) in India
• Amendment to Divorce Act suggested
• SC issues guidelines to check ragging
• Towards a new paradigm in education

• When the Supreme Court rules - Soli Sorabjee on the Latest SC ruling on S.498A and the 'purposive interpretation' therein

Article Reference

The Real Case for Judicial Review: A Plea for Non-Instrumentalist Justification in Constitutional Theory

In this article, available at SSRN, the authors argue that an instrumentalist approach to justify judicial review is bound fail. The article serach for non-instrumental justification for judicial review

Secrecy and Arbitration

Kluwer Arbitration Blog contains a post on public access to arbitration proceedings, especially in the Permanent Court of Arbitration and the WTO. The post refers to an article in The Economist on secrecy in arbitration, which can be found here. The reasons for the need for secrecy in arbitration are interesting. But are those reasons legitimate?

News

• The attributes of the ‘third electoral system’- An analysis of India's electoral politics
• Polygraph relies on trickery, not science: Law Commission

• An independent prosecutor: Govt proposes, CBI opposes

Gujarat Riots Case before the SC

The Supreme Court of India passed the following directions in National Human Rights Commission v.State of Gujarat and Ors. WRIT PETITON (CRL.) NO. 109 of 2003 (Dr. ARIJIT PASAYAT, P.SATHASIVAM, AFTAB ALAM, JJ.)

• Supplementary charge sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought.

• the conduct of the trials has to be resumed on a day-to-day basis keeping in view the fact that the incidents are of January, 2002 andthe trials already stand delayed by seven years. The need for earlycompletion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated.
  

• the SIT has suggested that the six "Fast Track Courts" be designated by the High Court to conduct trial, on day-to-day basis, in the five districts as follows:
  

i) Ahmedabad (Naroda Patia, Naroda Gam); ii) Ahmedabad (Gulbarg); iii) Mehsana (for two cases); iv) Saabarkantha opened(British National case); v) Anand; vi) Godhra Train Case (at Sabarmati Jail, Ahmedabad);

• It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High, Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such "fast track courts", and has also suggested that this may be left to Hon'ble the Chief Justice of the High Court.
  

• Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such public prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should, and the Chairman of the SIT is satisfied that the situation calls for a change of the public prosecutor or the appointment of an additional public prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by the SIT.

• If necessary and so considered appropriate SIT may nominate officers of SIT to assist the public prosecutor in the course of the trial. Such officer shall act as the communication link between the SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor.
  

• The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this court in regard to the smooth and satisfactory progress of the trials.
  

• The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, the SIT can request the Public Prosecutor to seek cancellation of the bails already granted.
  

• For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court: In case of witnesses following steps shall be taken:
  

(a) Ensuring safe passage for the witnesses to and from the court precincts.

(b) Providing security to the witnesses in their place of residence wherever considered necessary, and

(c) Relocation of witnesses to another state wherever such a step is necessary.

• As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
  

• In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities.
  

• In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses.
  

• All the aforesaid directions are to be considered by SIT by looking into the threat perception if any.
  

• The SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would also discharge such functions as have been cast upon them by the present order.
  

• If there are any matters on which directions are considered necessary (including by way of change of public prosecutors orwitness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this Court for appropriate directions.
  

• It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area.
  

• Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers.
  

Judgments - SCI

Dr. C.P. Sreekumar, M.S. (Ortho) v. S. Ramanujam

• Nature of the case: Case concerning medical negligence
• Date: 01 May 2009
• Bench: DALVEER BHANDARI & HARJIT SINGH BEDI, JJ. )
• Highlights:"...too much suspicion about the negligence of attending Doctors and frequent interference by Courts would be a very dangerous proposition as it would prevent Doctors from taking decisions which could result in complications and in this situation the patient would be the ultimate sufferer."