"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, July 13, 2009

Recent Judgments

Legality of an Amendment Act allegedly brought to nullify a judicial decision

State of Himachal Pradesh v. Narain Singh. CIVIL APPEAL NO. 1678 OF 2002. Date of Judgment 08-07-09

"Where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation."

Besides this there were other issues raised but left unanswered as found unnecessary by the court;

1. Unconstitutionality of the Act for being arbitrary, malafide and being colourable legislation

2. The Amendment Act as violative of the basic structure of the prinicipal legislation

Reference No. 1/2006 U/A 317 (I) of the Constitution of India, CPSC

Date of Judgment 08-07-09

Under Clause (1) of Article 317, the President of India referred the matter to the Supreme Court of India for an inquiry and report as to whether Shri. Ashok Darbari, Chairman of the Chattisgarh Public Service Commission ought to be removed from the office of Chairman of the Commission on the grounds of misbehaviour.

Article 317 do not define 'misbehaviour'. The court construes misbehaviour in the context as "[t]he Chairman of the Public Service Commission is expected to show absolute integrity and impartiality in exercising the powers and duties as Chairman. His actions shall be transparent and he shall discharge his functions with utmost sincerity and integrity. If there is any failure on his part, or he commits any act which is not befitting the honour and prestige as a Chairman of the Public Service Commission, it would amount to misbehaviour as contemplated under the Constitution.

Four charges were levelled and the court found none. The reference is answered in the negative.

Rule of secrecy v. Purity of election in an election petition

. CIVIL APPEAL NO. 5891 OF 2008. Date of Judgment 10.07.09

The repsondent was successfull getting an order from the election tribunal to de-seal the marked electoral roll of 2005 Legislative Assembly election. The election petitioner (respondent herein) sought to prove that there has been malpractice in the line of (i) 96 voters had cast their votes twice during the process of polling; (ii) 29 votes had been cast in favour of the appellant by way of impersonation, on behalf of the persons who were not available in the constituency on the date of polling; (iii) 53 votes had been cast in favour of the appellant by way of impersonation on behalf of the persons who had died prior to the date of polling; and (iv) 10 votes had been cast in favour of the appellant by way of impersonation on behalf of two persons who were serving sentences in jail and on behalf of eight persons who were abroad on the date of polling. The election petitioner incidentally lost the election by a margin of 25 votes.

Against the order of de-sealing of the electoral roll this civil Appeal is preferred contending that de-sealing will affect the principle of secrecy

Court held that when two principles compete, the "purity of election" principle must have its way and that the "rule of secrecy", as contemplated in Section 94 of the R. P Act, cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.

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