"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, June 22, 2009

Digest of Recent SC Decisions - May 20th to June 20th

Observation of Natural Justice in Departmental Enquiry

Union of India v. Bishamber Das Dogra. CIVIL APPEAL NO. 7087 OF 2002. Date of Judgment 26-05-09

Two interesting questions dealt were

1. Whether non furnishing of the copy of the enquiry report was not furnished and the respondent employee and not giving opportunity to file objections is violation of natural justice
2. Whether taking into consideration the past conduct while imposing the punishment vitiate the departmental proceedings
The court answered both questions in the negative. The reasons are given below

• Principles of natural justice cannot be put into a strait-jacket formulate and its observance would depend upon the fact situation of each case. Therefore, the application of the principles of natural justice has to be understood with reference to the relevant facts and circumstances of a particular case.
• natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.
• To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.
• It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside
• It is desirable that delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.

Testing the constitutionality of a statute

COMMISSION. CIVIL APPEAL NOS. 3457-3458 OF 2009. Date of Judgment 11-05-09.

The court was called to test the constitutionality of clauses (b) and (f) of Regulation 6A of the Central Electricity Regulatory Commission (Procedure, Terms and conditions for Grant of Trading License and other related matters) (Amendment), Regulation 2006 (hereinafter referred to and called for the sake of brevity as "Amended Regulation") is the question involved

• The standard for determining reasonableness of a statute so as to satisfy the constitutional scheme as adumbrated in Article 14 of the Constitution of India must receive a higher level of scrutiny than an ordinary statute. Such a higher level of scrutiny is necessary not for the purpose of determining the Constitutionality of the statute alone vis-`-vis the field of legislative power as envisaged under Article 245 of the Constitution of India but also having regard to the object and purpose, the statute seeks to achieve.
• For understanding the above, the appropriate doctrine would be that of purposive interpretation
• To evaluate the reasonableness of conditions, doctrine of proportionality may be employed

The grounds on which a subordinate legislation can be challenged

(a) Lack of legislative competence to make the subordinate legislation.

(b) Violation of fundamental rights guaranteed under the Constitution of India.

(c) Violation of any provision of the Constitution of India.

(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

(e) Repugnancy to the laws of the land, that is, any enactment.

(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules)
• It is now a well settled principle of law that essential legislative functions cannot be delegated. The delegatee must be furnished with adequate guidelines so that arbitrariness is eschewed.

Clauses (b) and (f) of Regulation 6A are declared ultra vires the Constitution of India as also the Act.

Marriage is not a mere "reciprocal possession" of the sexual organs nor can it be romanticized as "made in Heaven"

Smruti Pahariya V. Sanjay Pahariya. CIVIL APPEAL NO. 3465 OF 2009. Date of Judgment 11-05-09

A good read on the developments in divorce law.

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