"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.

Thursday, January 29, 2009


Recent Judgments

Principles of appreciation of dying declaration
Varikuppal Srinivas v. State of A.P. CRIMINAL APPEAL NO. 168 OF 2009. Date of Judgment 28-01-09
This case reiterates the principles used while appreciating a dying declaration.
"(i)There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]
(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [Kaka Singh v State of M.P. (AIR 1982 SC 1021)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion
cannot prevail. [Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].
(xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. [Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC 839) and Mohan Lal and Ors. v. State of Haryana (2007 (9) SCC 151)."
Had it been not dismissed on technical grounds, it could have been a landmark decision and a lead to the singur farmers claiming their land back
Yunus (Baboobhai) A Hamid Padvekar v. State of Maharashtra. CIVIL APPEAL NO. 486 OF 2009. Date of Judgment 28-01-09
The present appeal is against the dismissal order of the HC of a writ petition on the reason of delay.
The issue agitated in the writ petition is of phenomenal importance and especially for the Singur farmers. The question is, now that TATA is backed out what will happen to the land. Will the farmers get it back?
In 1972, 38 acres of land of the appellant were acquired by the state for BALCO. The company failed to set up the unit and the license was cancelled. The claim of the petitioner in the writ was for reversion of the property to him.
Regrettably there has been a delay which the HC found inordinate and dismissed the peitition. The appeal is dismissed endorsing the finding of the HC.
Wish it was decided on merits!

Wednesday, January 28, 2009

Recent Judgments

Exercise of jurisdiction under Article 136
Anurag Kumar v. Mohan Lal CIVIL APPEAL NO.446 Of 2009, Date of Judgment 27-01-09
1. When the litigants feels injustice is done by a court, there is an option to approach the superior court. It is then the discretion of that court to grant leave to appeal. This is the basic principle under Article 136 [ (1996) 1 SCJ 786, 803]
2. Article 136 is a discretionary power and it is not possible to define with precision how this discretion is to be exercised
3. "The limitations whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and over-riding power, naturally, it has to be exercised sparingly and with caution and in special and extraordinary situations"
4. The discretionary power remains with the court even after the special leave is granted. This discretionary power can be used at any stage in the appeal. [ (1999) 2 SCC 321]
Using this discretionary power the court dismissed the present appeal without going into the merits.
Relevant date for ascertaining whether an accused is a juvenile
Eerati Laxman v. State of A.P. Criminal Appeal No. 139 of 2009. Date of Judgment 23-01-09
"The date on which the offence had been committed and not the date when the accused was first produced before the court/competent authority would be the relevant date for the purpose of ascertaining as to whether the accused before it was a juvenile within the meaning of the provisions of the said Act or not."
There is an interesting observation in this case. Court says that, the Juvenile Justice Act is a beneficial legislation but it does not rule out literal interpretation.
Copy right and fair use
Academy of General Education v. B. Malini Mallya. CIVIL APPEAL NO. 389 of 2008. Date of Judgment 23-01-09
The case is based on the alleged violation of copyright by the appellant. Appellant staged a theatrical performance, which has been developed as Yaksha Ranga by the well known literati figure late Dr. Shivarama Karanth. The respondent claimed copyright in respect of the said form of performance by virtue of the Will of Dr. Karanth.
The Court in the judgment discussed the differentiation between 'literary work' and 'dramatic work' and held that the performance in issue comes within the purview of dramatic work.
The performance by the appellant, considering the fact situation, was held to be covered under Section 52 of the Act and therefore as not falling under the order of injunction.

Tuesday, January 27, 2009

Recent Judgments

SC invokes public trust doctrine
Fomento Resorts and Hotels Ltd. v. Minguel Martins, Civil Appeal No. 4154 of 2000. Date of Judgment 20-01-09
An interesting case where the attempt of the petitoner to secure a part of seashore as private beach is set naught by the SC. The court has discussed the 'doctrine of public trust' and found that the action of the petitioner is in violation of the doctrine.
Make sure your driver is having a valid license, or be ready to pay the compensation in case of accident
National Insurance Company Ltd. v. Meena Aggarwal, SLP(C ) No. 19513 of 2006. Date of Judgement 23-01-09
SC reversed the order of the State and National Consumer Disputes Redressal Commissions directing the insurance company to pay compensation to the victims of the accident. The undisputed facts reveal that the driver had no licence and he was plying the vehicle on commercial purpose, whereas it was registered as private vehicle. The holding of the commissions was based on the reasoning that there was no fundamental breach of the terms of the policy.
SC reversed the order highlighting an earlier decision of the court where it was held that "[t]he owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle."
Apprentice is not an employee in the common parlance of the term
New India Assurance Co. Ltd. v. M/S. Abhilash Jewellery, Civil Appeal No. 7972 OF 2002. Date of Judgment 22-01-09
The respondent had a policy called Jeweller's Block Policy for Rs.1,15,00,000/- with the appellant. During the pendency of the policy the repsondent lodged a claim for the loss of jewellery. The loss was occasioned from the custody of an apprentice . The relevant clause in the contract reads thus
S. 11(a) property insured whilst in the custody of the insured, his partner or his employees.
The decision of the case depended upon the interpretation of the expression 'employee', which was not defined in the contract. The National Commission determined the issue in favour of the respondent holding that an apprentice is an employee as per the Kerala Shops and Commercial Establishments Act and the Employees State Insurance Act.
The SC reversed this decision on the reasoning that "[t]he present case is covered solely by the contract of insurance.That contract of insurance no doubt uses the word 'employee', but it does not say that the word 'employee' in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act or any other enactment."
Since the contract has not defined the term, the term employee has to be understood in the common parlance. In common parlance, an apprentice is not considered as an employee. At the best he is only a trainee and there is no master - servant relationship even if stipend is paid.
Recall Petition
Asit Kumar v. State of W.B. Writ Petition (civil) No. 110 of 2008. Date of Judgment 21-01-09
The SC distinguished between petition under Article 32, review petition and recall petition in the following words
"There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party."
On the right of private defence
Ranveer Singh v. State of M.P., Arising out of SLP (Crl.) No.3905 of 2008. Date of Judgment 21-01-09
"Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression `right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 ... the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."
What amounts to be an extra judicial confession
Shiva Karam Payaswami Tewari v. State of Maharashtra. Arising out of SLP (Crl.) No.1700 of 2008. Date of Judgment 21-01-09


Book Review : Indispensable dissident. Collection of Noam Chomsky’s essays

Culture as a site of struggle by K.N Panicker

“Full support to Salwa Judum” - The Chhattisgarh CM in Republic day speech

Eclipse: Minister orders special poojas - (Thought India is a secular country !)

For the judges’ sakes - Pratap Bhanu Mehta on judiciary's position on declaration of assets

Gorkhas to get autonomous council in Assam

Saturday, January 17, 2009


Friday, January 16, 2009


By promoting Salwa Judum, the State government has outsourced law and order, escalated violence, and divided and very nearly destroyed tribal society- Read Ramachandra Guha

Someone to watch over you - Review of the amendment of the Information Technology Act

Issue national I-cards to citizens, SC tells Centre -In the background of the issue Bangladeshi migrants

‘In India, 78,000 women die in childbirth every year’ - UNICEF reports

Forum Selection Clauses

Rajasthan State Electricity Board v. M/s. Universal Petrol Chemicals Ltd. CIVIL APPEAL NOS. 5430-5431 OF 2002 decided by Dr. Mukundakam Sharma & Tarun Chatterjee, JJ. on January 12, 2009.

  • The dispute resolution clauses in the first contract in this case were:

    "30.....The contract shall for all purposes be construed according to the laws of India and subject to jurisdiction of only at Jaipur in Rajasthan Courts only..........."


(a) If at any time any question, dispute todifference whatsoever which may arise between the Purchaser and the Supplier upon or in relation to Contract, either party may forthwith to the order a notice in writing of the existence of such question(s)/dispute(s) differences and the sameshall be referred to the Chairman, RSEB, Jaipur or any person appointed by him for the purpose (herein referred to the `Arbitrator'). Such reference shall be deemed to be a submission to the arbitration within the meaning of the Indian Arbitration Act, 1940 and the statutory modifications made thereof.

(b) The award of the Arbitrator shall be final and binding on both the parties.

(c) Upon every or any such reference, the cost incidental to such reference and an award shall be in the discretion of the Arbitrator who may determine the amount thereof and direct the same to be borne and paid.

(d) Work under the Contract shall, if reasonably possible, continue during the arbitration proceedings and no payment due or payable by the Purchaser shall be withheld on account of such proceedings

  • The second contract provided for the following clauses:


    All disputes, differences or questions whatever which may arise between the Purchaser and the Supplier upon or in relation with or in connection with the contract shall be deemed to have arisen at Jaipur (Rajasthan) and no Court other than the Court at Jaipur (Rajasthan) shall have jurisdiction to entertain or try the same

  • The clause in the bank guarantee to be furnished provided:
    "All disputes arising in the said Bank Guarantee between the Bank and the Board or between the supplier or the Board pertaining to this guarantee shall be subject to the courts only at Jaipur in Rajasthan."

  • The case essentially involves the question as to territorial jurisdiction. The parties went through a round of litigation in the lower courts and also in the Calcutta High Court. The specific dispute between the parties was whether the forum was Jaipur or Calcutta. The court reiterated the well settled position of law on forum selection clauses:

  • Where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agree to vest jurisdiction in one such court to try the dispute which might arise as between themselves, such agreement would be valid and binding, and would not be contrary to public policy or Section 28 of the Indian Contract Act.
  • When ouster clause is clear, unambiguous and specific, accepted notions of contract would bind parties and unless absence of ad idem can be shown courts should avoid exercising jurisdiction.
  • There is thus an ouster clause used in the aforesaid stipulations stating that the courts at Jaipur alone would have jurisdiction to try and decide the said proceedings which could be initiated for adjudication and deciding the disputes arising between the parties with or in relation to the aforesaid agreements through the process of arbitration. In other words, even though otherwise the Courts at Calcutta would have territorial jurisdiction to try and decide such disputes, but in view of the ouster clause it is only the courts at Jaipur which would have jurisdiction to entertain such proceeding.
  • Section 31 of the 1940 Arbitration Act provided:

    (3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court.

    (4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference, and the arbitration proceedings shall be made in that Court and in no other Court

    The Calcutta High Court, from which the appeal arose, had held:

    It is clear from the language used therein that where in any application has been made in a court, competent to entertain, in that case that court alone shall have jurisdiction. The requirement is not that the application should be allowed. Since in the instant case admittedly an application under Section 20 has been made, which is an application in a reference, Calcutta High Court will have jurisdiction."
  • The Supreme Court disagreed with the view of the High Court. The SC held:

    Sub-section (3) precedes sub-Section (4) of Section 31 of the Act. The said sub-Section provides that all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the Award has been or may be filed and to no other court. Sub-Section (4) on the other hand states that where in any reference any application under the Arbitration Act has been made in a Court competent to entertain, then that Court alone would have jurisdiction over the arbitration proceedings and all subsequent applications arising from that matter and arbitration proceedings shall be made in that court and in no other court. An analytical look at the provisions of sub-Sections (3) and (4) will make it explicitly clear that any application in any reference, meaning thereby even an application under Section 20 of the Act could or should be filed in a court competent to entertain such proceeding and having jurisdiction to decide the subject of the reference.

  • Section 20 of the 1940 Act read:
    20. Application to file in Court arbitration agreement. (1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court.
    (2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants.
    (3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why the agreement should not be filed.
    (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court.
    (5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable

    Such jurisdiction would or could be restricted by the agreements entered into by and between the parties. The parties have clearly stipulated and agreed that no other court, but only the court at Jaipur will have jurisdiction to try and decide the proceedings arising out of the said agreements, and therefore, it is the Civil Court at Jaipur which would alone have jurisdiction to try and decide such issue and that is the court which is competent to entertain such proceedings. The said court being competent to entertain such proceedings, the said Court at Jaipur alone would have jurisdiction over the arbitration proceedings and all subsequent applications arising out of the reference. The arbitration proceedings have to be made at Jaipur Court and in no other court.

  • The above decision has reiterated the settled position of law on forum selection clauses, which is summarised herebelow:
  • The fundamental principle is that no one can confer jurisdiction on a court by contract when there was none in the first place.
  • However, where there are two courts having jurisdiction over the same subject matter, parties can agree by contract to have the dispute resolved exclusively in one jurisdiction.
    If there is an arbitration clause and a forum selection clause as below, the consequence would be that the forum selection clause would be subject to the arbitration clause provided it was the intent of the parties to resolve the dispute by arbitration.

    Dispute Resolution:
    Any dispute arising out of or in connection with the contract shall be referred to arbitration consisting of two arbitrators and the venue of the arbitration shall be in Mumbai.

    The courts in Delhi shall have the sole jurisdiction
  • It is not necessary that the ouster clause (forum selection clause) should have words like “only”, “alone” or “exclusively”. The fundamental test is that the intent of parties to go to courts in one jurisdiction and in no other must be reflected in the ouster clause.

Thursday, January 15, 2009


We, under the doctrine of `judicial review', would not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today. Wonder what might that be.
Citizens for Justice and Peace v. State of Gujarat & Others Writ Petition (C) No. 219 of 2006. Date of Judgment 13-01-09
The above statement is made by the SC while dismissing a writ petition challenging the appointment of Mr. P.C. Pandey to the post of Director General of Police, State of Gujarat. The petitioner a citizen's group challenged the appointment on the ground of involvment of Mr. pandey in the Gujarat carnage. They apprehend the misuse of position by Mr. pandey who was the Commissioner of Police, Ahmedabad while the riot happend and is under the shadow of doubt.
Court found the following
1. Appointment of a governmnet servant is a prerogative of the goernment, especially when it is to posts as sensitive as DG of police.
2. "We, under the doctrine of `judicial review', would not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today"
3. Mr. pandey is going to retire on March 2009. (Did they mean that less chance of committing more mischiefs!)
I can appreciate the position the court have taken on the non-extention of judicial review in the regular appointment, but could not figure out "the factual panorama" of the day, about which Justice Sirpurkar is (conspicuously) silent.
a) Is the court extending a clean chit to the Gujarat government
b) Is it the re-election of Mr. Modi, the factual panorama
c) Is it the retirement date;
or is it just that
d) The review comittee has already reviewed majority of the cases
May be I am reading too much into it !

Monday, January 12, 2009


Seniors rejoice! SC says you cannot be paid less than your juniors even if the difference is because of increments.

Er. Gurcharan Singh Grewal & Anr. v.Punjab State Electricity Board & Ors. Civil Appeal Nos. 65-67of 2009. Date of Judgment 09-01-09
Court finds it against accepted principles of law that a senior is paid less than his junior, "even if, there was a difference in the incremental benefits in the scale given". Any "such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the senior is also stepped up to that of the junior"

Saturday, January 10, 2009


Law & Economics Research Paper Series, by Sara K. Stadler, Emory University School of Law

Available at http://ssrn.com/abstract=742625

"If the laws of economics applied to law schools, one would expect that if students were increasingly interested in, say, intellectual property law, then faculties would “wise up” and seek to hire professors qualified to teach intellectual property law. That is, if student demand for intellectual property law exceeded faculty supply of intellectual property law, faculties would hire in the area until the gap between supply and demand had narrowed, if not disappeared. In Wall Street terms, there would be a bull market in intellectual property law. This would be useful information for people who thought they might wish to become law professors in the foreseeable future. If, for example, one knew that there were a bull market in intellectual property law, but a bear market in, say, admiralty law, she could direct her studies or her law practice accordingly, thus increasing her chances of being hired on the tenure track. She could, in Wall Street terminology, go “long” intellectual property while “shorting” admiralty."


Friday, January 9, 2009

SC Judgments

Interpretation of "soon before death" in S. 304 IPC

Deen Dayal & Ors. v. State of U.P. Criminal Appeal No. 67 of 2006. Date of Judgment 07-01-09
The argument of the appellants inter alia was that the ingredient 'soon before her death' in S.304 is not met in this case as the evidence of last demand of dowry was on July 1998 and she died on September 6, 1998. Therefore presumption under S. 113-A of the Evidence Act cannot also be raised against the appellant. The SC rejected the contention and held as follows:
"The words `soon before her death' occurring in section 304 B of the Penal Code are to be understood in a relative and flexible sense. Those words cannot be construed as laying down a rigid period of time to be mechanically applied in each case. Whether or not the cruelty or harassment meted out to the victim for or in connection with the demand of dowry was soon before her death and the proximate cause of her death, under abnormal circumstances, would depend upon the facts of each case. There can be no fixed period of time in this regard."

For reiteration of the position, see another judgement of the same day by a different bench.

Prem Kanwar v. State of Rajasthan. Criminal Appeal No. 58 of 2002. Date of Judgment 07-01-09

"The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."

Protection of public servant under S.197 C. P.C .

Choudhury Parveen Sultana v. West Bengal and Another. Criminal Appeal No. 8 of 2009. Date of Judgment 07-01-09

1. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C.

2. There can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him.

3. The underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment o the said official.

4. However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform.

5. Whether there is a misuse of authority is a question of fact