-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.
Saturday, February 27, 2010
Tuesday, February 23, 2010
Sunday, February 21, 2010
Angad Das v. Union of India CIVIL APPEAL NOS. 1429-1430 OF 2010 (Arising out of SLP (C) Nos.6975-6976/2009). Date of Judgment 18-02-10
Supreme Court chided the DIG of Police, CRPF, Avadi, for treating a request for re-employment to Additional District Inspector General as an appeal against an order and consequently enhancing punishment. Perusing the letter sent by the appellant the SC found that the prayer “made with folded hands and touching his [Addl.DIG] feet” could never be treated as an appeal. Considering this request letter as an appeal against the order of punishment of "compulsory retirement" as awarded by the Commandant, 51 BN, CRPF punishment was enhanced to “removal from service" w.e.f. 31.5.1996.
The treatment meted out to such a letter astonishes the court and expressed in the following words “[w]e fail to comprehend how such an innocuous and polite letter of request seeking re- employment on compassionate ground can ever receive such an unwarranted and arrogant reaction. The order is wholly arbitrary and illegal.”
Consequently, the order of compulsory retirement is restored, which will enable the appellant to receive all benefits including the pensionary benefits. The benefits are awarded with an interest of 9% per annum to be paid within two months, along with Rs. 50,000/- as cost.
Restoring justice to the appellant, the court reminded the outlook people in power and authority ought to have, in the following words:
“People in power and authority should not easily lose equanimity, composure and appreciation for the problems of the lesser mortals. They are always expected to remember that power and authority must be judiciously exercised according to the laws and human compassion. Arrogance and vanity have no place in discharge of their official functions and duties.”
Saturday, February 20, 2010
Court: Supreme Court of India
Date of Judgement: 17.02.2010
Parties: Dolphin Drilling Limited (based in Norway) & ONGC (India)
Application: Section 11(6) for the appointment of arbitrator:
Section 11(6) reads:
"Where, under an appointment procedure agreed upon by the parties, -
(a) A party fails to act as required under that procedure; or
(b) The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) A person, including an institution, fails to perform any function entrusted to him or it under that procedure,
A party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the
Judge: Aftab Alam, J.
- a per sitting fee (one sitting is roughly equivalent to three hours) ranges between Rs. one lakh to two lakhs per arbitrator (that makes it 3-6 lakhs for three), plus
- a one time reading fee of one to three lakhs, plus
- fee paid to the senior advocate (which ranges anywhere between one lakh to four lakhs per appearance/ hearing/ hour- this might be a conservative estimate in arbitrations involving very large claims) plus
- fee ranging between ten thousand to fifty thousand for the junior counsel (per hour) plus,
- six-twelve thousand (again, per hour) if you are hiring a law firm to conduct all the drafting and briefing work, plus
- a few thousands for the representative of the party litigating plus
- the stay in a five star hotel for the three arbitrators (if the arbitrator is not from the city where arbitration takes place plus
- 10,000-50,000 per day for the venue of arbitration
- 1,000-2,000 for the typist/ administrative costs
"The issue of financial burden caused by the arbitration proceedings is indeed a legitimate concern but the problem can only be remedied by suitably amending the arbitration clause. In future agreements, the arbitration clause can be recast making it clear that the remedy of arbitration can be taken recourse to only once at the conclusion of the work under the agreement or at the termination/cancellation of the agreement and at the same time expressly saving any disputes/claims from becoming stale or time -barred etc. and for that reason alone being rendered non-arbitrable."
Monday, February 15, 2010
Friday, February 12, 2010
Mulla v. State of U.P. CRIMINAL APPEAL NO. 396 OF 2008, Date of Judgment 08-02-10
Appreciation of Mitigating Factors
The SC in this case reiterates the rule that "life imprisonment is the rule and death penalty an exception". The court commuted death penalty awarded by the lower court to life imprisonment.
The criteria to determine whether the case falls in rarest of rare category is laid out as follows;
"(1) the gruesome nature of the crime
(2) the mitigating and aggravating circumstances in the case
(3) whether any other punishment would be completely inadequate.
The Court must satisfy itself that death penalty would be the only punishment which can be meted out to the convict."
Explaining the mitigating circumstance, the court enlarged the points of consideration adding socio-economic factors that might have led to the commission of the crime. Having said this, Justice Sathasivam was quick to add that "[w]e at no stage suggest that economic depravity justify moral depravity ... [though] socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances"
Length of Life Sentence
Life sentence though convey the idea that it for the rest of life, do not stretch beyond 14 years. (See, Sections 45 and 47 of the I. P. C and Sections 432, 433 and 433A Cr. P. C).
The court but asserts that the sentencing court has the authority to prescribe the length of the incarceration. "This is especially true in cases where death sentence has been replaced by life imprisonment"
Remitting death penalty, the court hand out the punishment of life sentence in this case must extend to their full life, subject to any remission by the Government for good reasons.
Thursday, February 11, 2010
Kusum Sharma v. Batra Hospital & Medical Research Centre, CIVIL APPEAL NO.1385 OF 2001, Date of Judgment 10/02/10
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence.The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of the illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
Saturday, February 6, 2010
Political scientists and law professors have lately taken to asserting that quantitative studies of judging reveal worrisome findings about the rule of law in the
This brief essay was presented at a two-day colloquium at
Dr. Bonham’s Case, decided by Edward Coke as Chief Justice of the British Court of Common Pleas in 1610, remains - to this day - the case acknowledging the supremacy of the fundamental (or natural) law interpreted and enforced as such by the judiciary and not a legislative body - here, Parliament. Coke’s idea of a law of nature superior to man-made law was not new. What was original - and even radical for the times - was the notion that the courts of law should be given the power and the right to interpret and enforce that law. This theory of judicial review was embraced first in the Massachusetts Colony in the case of Giddings v. Brown in 1657 and in subsequent challenges by the colonies to the supremacy of Parliamentary rule over them. Subsequently, Coke’s holding in Bonham’s Case became the very lynchpin for the American theory of the judicial review of legislation.
Tuesday, February 2, 2010
This article discusses the use of colleges of regulators to supervise global banks. The article briefly discusses the past ineffective use of colleges of regulators and then analyzes the use of colleges of regulators under European Union law. The article concludes by reviewing the recommendations for the expanded use of colleges of regulators by the G-20 and the Larosière Report.
Over the past two decades, the European Commission (“the Commission”) has adopted a stance whereby the implementation of ex ante, structural merger rules is deemed more appropriate when seeking to challenge tacit collusion than ex post, behavioural instruments (e.g. on the basis of Article 102 of the Treaty on the Functioning of the EU (“TFEU”). As a result, the EU merger regulation (“EUMR”) is the preferred, if not sole, legal instrument deployed by the Commission in order to avert any potential risk of tacit collusion. Since the entry into force of the EUMR, the number of Commission decisions in which the future emergence of risks of collective dominance was examined lies in the region of 130. In stark contrast, and despite pronouncements of the General Court (“GC”, or the Court) that Article 102 TFEU may apply to tacit collusion, the Commission has not yet taken a single decision enforcing Article 102 TFEU against tacitly collusive oligopolies. Similarly, the stillness of the 2009 Guidance Communication on Enforcement Priorities in applying Article 102 TFEU in this context implicitly confirms the Commission’s reluctance to use the abuse of dominance rules in order to address the phenomenon of tacit collusion.
Section 18 - Publicity of applications
Section 19 - Grant of authorisation
The relevant portions of the decision are below:
"39. We are of the opinion that Section 16 is the source of power as it gives statutory mandate to the Board to issue authorizations. Section 16 also confers monopoly on the Board to issue authorizations. Without notification of Section 16, Board does not have the power to issue authorizations, inasmuch as there would be no ban on other entities from laying, building, operating or expanding CGD Networks.
40. We are further of the view that Sections 17, 18 and 19 of the PNGRB Act are all procedural Sections in aid of Section 16. In fact, Sections 17 to 19 lay down the procedure to be adopted by the Board for inviting applications from entities and selecting the best amongst them. These Sections do not give the Board the power to grant authorisation to an entity which has applied to it. This power is specifically provided under Section 16 of the Act and in absence of non-notification of the same, the Board cannot issue LOI‟s to any of the entities selected by it..."
Monday, February 1, 2010
This paper develops and tests a model of self-interested judicial behavior to explore the pheno-menon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.
This is a full English translation of the Commercial Code of the Macau Special Administrative Region of the People's Republic of
This article addresses the issues related to specialized courts, specifically focusing on business courts, and provides a comprehensive overview of the evolution of non-Delaware business courts. After addressing the theoretical assumptions of and civil justice goals served by business courts, the article proposes a framework to evaluate and measure the success of business courts by focusing on efficiency, quality of decision-making, and the perception of due process. The article surveys existing business courts and undertakes a comparative analysis of their structural elements: case subject matter, jurisdiction, minimum damages thresholds, and transfer procedures. The article then analyzes the existing programs under the proposed framework by comparing program elements that demonstrate efficiency, such as case management programs, demonstrate quality, such as low reversal rates, and demonstrate due process, such as publication of opinions.
English Contract Law has long struggled to understand the effect of a fundamental common mistake in contract formation.
This article deals with the traditional conception of purchase of a conforming tender of documents under a negotiation letter of credit and the extent to which that understanding has evolved in the courts in recent years to meet the changing needs of bankers involved in credit operations. In particular, it provides a thorough analysis of the conventional view of negotiation as the purchase of complying presentation by a nominated bank. Along the way it tackles thorny problems involving a nominated bank’s promise to pay upon receipt of funds from the issuing bank; the legal nature and effect of the bank’s discounted payment of the amount of a credit after having been advised by the issuing bank that the documents are complying; the question of ascertaining the conformity of a negotiation with the negotiation period stipulated in a credit; and finally the vexed issue of what amounts to good faith purchase by a nominated bank.