"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.

Friday, July 31, 2009


Professional politicians are the next genus

We have heard about politicians who are self made, dynastic and nurtured. Here is a new genus in the offing - professional politicians. An advertisement in the front page of today's The Hindu introduces "Asia's only Professional Training Program designed to motivate and activate Indian youth's entry into Politics and Government". The programme include courses on political processes, political communication, election management, campaign management, constituency management studies etc. Intership will be with 'renowned political leaders, political parties ... culminating into good career opportunities.' The degree awarded is Master's Program in Government.

Want a career in politics for your kids? Here is an institution that will train them for one of most lucrative positions,insulated even from economic recession. Did I hear somebody say that they only contribute to it...

Thursday, July 16, 2009

Recent Judgments

Culpable Homicide or Murder?

Raj Kumar v. State of Maharashtra. CRIMINAL APPEAL NO. 1233 OF 2009. date of Judgment 15-07-09

To decide whether an act is murder or culpable homicide, courts could take a three step approach.

Step 1

Ask the question whether the accused has done an act by doing which he has caused the death of another.

Proof of such causal connection between the act of the accused and the death leads to the second stage.

Step 2

Whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached.

This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC.

Step 3

If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder punishable under Part I or Part II of Section 304 IPC, depending, respectively, on whether second or third clause of Section 299 IPC is applicable.

If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300 IPC, the offence would still be culpable homicide not amounting to murder punishable under the First Part Section 304 IPC.

The above are only broad guidelines and not cast-iron imperatives.

Tuesday, July 14, 2009

Recent Judgments

Power of the HC to transfer a case to itself from Administrative Tribunal and Decide

State of West Bengal v. Samar Kumar Sarkar. CIVIL APPEAL NO. 4350 OF 2009. Date of Judgment 14.07.09

The court held that though the power of the HC under Art. 227 is wide enough to cover Tribunals, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.

The appeal is allowed observing that "the High Court could not, under the powers conferred by this Article, withdraw a case to itself from a Tribunal and dispose of the same, or determine merely the question of law as to the interpretation of the Constitution arising before the Tribunal."

Territorial Jurisdiction of the Magistrate's Court to take congnizance of an offence

Rajiv Modi v. Sanjay Jain. CRIMINAL APPEAL NO. 1214 OF 2009. Date of Judgment 14.07.09

1. To constitute the territorial jurisdiction, the whole or a part of the "cause of action" must have arisen within the territorial jurisdiction of the court.

2. The Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, can certainly take cognizance of the complaint.

3. There is no need to ascertain that the allegations made are true in fact.

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.

Sunday, July 12, 2009

Recent Judgments

Breach of contract of an agreement for sale would not attract Sections 406 or 420 of the Indian Penal Code

Dalip Kaur v. Jagnar Singh CRIMINAL APPEAL NO. 1135 of 2009. Date of Judgment 07.07.09

If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating.

Another appointment of Addl. Judge to HC under Challenge

Mahesh Chandra Gupta v. Union of India. TRANSFERRED CASE (C) NO. 6 OF 2009. Date of Judgment 06.07.09

SC found the appointment of the Additional Judge of Allahabad High Court under challenge not an infraction of Article 217(2) and Article 217(1) of the Constitution of India.

Friday, July 10, 2009


An enriching lunch at NUJS

It was a happenstance that we met in the canteen for lunch, but the discussion was inevitable, the Naz Foundation judgment. Either all were convinced about the end result of the judgment or none found it necessary to mention in the backdrop of a challenging technical legal issue that needed resolve, the territorial effect of the Delhi HC judgment.

This is not the first instance that a HC has held certain Central enactment as unconstitutional or has given an interpretation of this magnitude to a central statute. There have also been occasions when two different HC's have given conflicting interpretation of law. An impromptu case that comes to my mind is Entertainment Network (India) Ltd. v. Super Cassettes.(Date of Judgment 16-05-08), where the conflicting judgments of the Delhi and Bombay HCs got resolved in the SC. Yes this has been the practice, affected parties move the SC for a final resolution of the problem.

We were contemplating a situation where today if Karnataka police arrest two adults of the same sex from Cubbon Park and slap a charge under S.377, will it stand? Does the judgment of the Delhi HC have the reach to stop the Karnataka police?

With the conflicting views expressed by the SC itself on the territorial extent of the HC decision, the answer is difficult to come by. It seemed we were all in agreement on that too.

The Indian judicial system works on the principles of hierarchy wherein it is clear that HC have territorial jurisdiction and one HCs decision have only persuasive value over other HC's and not binding. Article 226 is clear as to the territorial limits of the operation of a judgment of HCs.

There were two interesting issues Pritam brought up. In the Naz foundation case, Union of India is a party. The interpretation given is that of a central law, wont it be then logical that it should be applicable to the whole of the nation. On the other hand, the effect of the judgment is that the state police is to refrain from certain actions. Incidentally, law and order is a matter in state list. Can the judgment of the HC of one state direct the actions of police of another state. He was quick to add that these are just thoughts not arguments.

Sandeep thought aloud about a previous such case, which incidentally has not caught media attention of the present magnitude for obvious reasons. The declaration of unconstitutionality of S. 309 by the Bombay HC. Conflicting opinions were rendered by certain others, which ultimately got settled by the judgment of SC.

My musings were at a fundamental level. This involves a technical issue of how there could be a unified law for the nation in matters relating to central law when judiciary intervens. Different rights in different states will definitely charge an action on equality. Are we going to face the same predicament repeatedly in similar situations till SC acts on each individual cases? In future too HCs definitely will create different sets of rights and interpretations in different states. Then wont it be good if we have a principle to untie such Gordian knots.

Pritam was very quick to put it in perspective, as a question of judicial federalism. He was apprehensive of loosing an opportunity to create a sound principle of law by the SC. This matter is also likely to be resolved by an SC judgment deciding whether S. 377 is constitutional or not. It is unlikely that the SC will declare the principle to be followed in future such issues unless attention is drawn.

The discussions continued, making us forget the unimaginative menu of Mrityunjay at the canteen (for no fault of his), as to what shall be the possible principles that could find an answer to this issue. Two solutions were on the table.

One, whenever a HC decides on the constitutional validity or renders an interpretation of a central enactment it shall be held good for the whole of the nation. Practical the solution seemed to be but it will cut at the root of jurisdiction of the HCs.

Daniel had alternatives; bring back Article 226A or enact a similar provision, create a dedicated constitutional court that shall have the sole jurisdiction to deal with the constitutional validity of central enactments.

The problems with the second suggestion are logistical, limitation of jurisdiction of the HC's and loosing one rung of appeal.

I am waiting for more lunches at NUJS canteen. You are invited.


Territoriality of a HC judgment

The recently decided Naz Foundation Case has raised an interesting debate about the terriorial limits of a HC judgment. See here, for an interesting dbate. Today's Indian Express carry an interesting read by Shivprasad Swaminathan. He has posted his views in Law and Other Things blogspace also.

Wednesday, July 8, 2009

Recent Judgments

The absence of injuries on the person of the prosecutrix does not lead to an inference that she consented for sexual intercourse with the accused.

Rajinder v. State of H.P. CRIMINAL APPEAL NO.670 OF 2003. Date of Judgment 7.7.09