WORLD LEGAL SCENARIO

#020 A QUIZ ON PROVERBS OF LAW

2009-12-01T00:33:00.001-08:00

1: The safety of the ___ is the highest law . ANSWER

2: It _____ no one to be wiser than the laws . ANSWER

3: Give me the making of the ____ of the people ; I care not who makes their laws . ANSWER

4: Where the law forbids any thing, and hath not determined a punishment, the punishment is in the discretion of the ___ . ANSWER

5: New ____, new laws . ANSWER

6: The ___ of the kingdom of England, is the law of England . ANSWER

7: The exposition of _____ is the best, and the strongest in law . ANSWER

8: Any thing in law is _____, in the same way in which it was found . ANSWER

9: The offspring of a lawful marriage does not more certainly know its ___ than its father . ANSWER

10: Bondage is miserable where the law is ___ or uncertain . ANSWER

#019 WIFE'S MENTAL CRUELTY TOWARDS HER HUSBAND

2008-12-31T00:18:00.000-08:00

QUESTIONS
* Does a wife's not attending on or enquiring over telephone, about the well-being of her husband who has undergone byepass surgery - tantamounts to mental cruelty? Does it entitle an aggrieved husband for a divorce?

* Wife cooking separately for herself and going to Office, compelling the husband to dine in a hotel.

* Does the social status of a witness matter? Can a court treat the deposition of a servant as unreliable because of his low social status?

STATUTE
* Special Marriage Act 1954.
* Section 13 (1) and (1-a) of Hindu Marriage Act.

American Jurisprudence
The term "mental cruelty" has been defined as under:
"Mental Cruelty as a course of unprovoked
conduct toward one's spouse which causes
embarrassment, humiliation, and anguish so
as to render the spouse's life miserable and
unendurable. The plaintiff must show a
course of conduct on the part of the defendant
which so endangers the physical or mental
health of the plaintiff as to render continued
cohabitation unsafe or improper, although the
plaintiff need not establish actual instances of
physical abuse."

CASE NO.: Appeal (civil) 151 of 2004
PETITIONER: Samar Ghosh
RESPONDENT: Jaya Ghosh
DATE OF JUDGMENT: 26/03/2007
BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari

To see the full text of this judgement, please visit: http://www.judis.nic.in/supremecourt/chejudis.asp.

BRIEF OUTLINE OF EVENTS/FACTS
* 1984 - One female divorced I.A.S. Officer (divorced from her I.A.S. husband) and another I.A.S. Officer marry.
* Wife had a daughter from her first relationship. Her daughter lives with her.
* Wife took a unilateral decision not to conceive any child for two years from her second relationship.
* Rationing of love and affection administered to the second husband.
* Wife cooked food only for herself and went to office. Husband had to dine in a hotel.
* Husband felt like a stranger in his own family.
* Husband and wife virtually lived separately from 1985. Admitted separate living 1990.
* Wife told her daughter that her (second) husband was not her father and not to call him father.
* Wife told the second husband not to speak to her daughter.
* Wife told her daughter that she (wife) was divorcing her second husband.
* 1990: Wife literally asked the second husband and his domestic servant to get out of her flat. Wife said that her second husband had no self respect.
* 1996: Trial Court divorce.
* 2003: High Court reversed.
* 2004: Second husband appealed to Supreme Court.
* 2007: Supreme Court restored the trial court's judgement (divorce allowed).

IMPORTANT
Judgements of different courts vary, depending on the circumstances of each case. Case law precedents will, therefore, only be indicative of how things are likely to be where similar facts/events recur.

SOME OBSERVATIONS of the Supreme Court
there cannot be any comprehensive
definition of the concept of 'mental cruelty' within which
all kinds of cases of mental cruelty can be covered. No
court in our considered view should even attempt to give
a comprehensive definition of mental cruelty.

The credibility of the witness does not depend upon his financial
standing or social status only. A witness which is natural and truthful should be
accepted irrespective of his/her financial standing or social status.

.

BLOGGER'S VIEWS
* I.A.S. Officers are also ordinary citizens in the eyes of law.
* The judgement contains a comparative discussion of the Fault theory and the Breakdown theory. This case is worth reading for aggrieve spouses and their lawyers.

CASES OF RELEVANCE
* N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para
30 observed as under :-
"The enquiry therefore has to be whether
the conduct charges as cruelty is of such a
character as to cause in the mind of the
petitioner a reasonable apprehension that it
will be harmful or injurious for him to live with
the respondent."

* Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105.
* Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619
* Janmohamadkhan v. Haizunnisa Yasinkhan, (1981) 4 SCC 250.
* Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706
* A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22
* Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778
* American Case: Jem v. Jem [(1937) 34 Haw. 312
* American case: Fleck v. Fleck 79 N.D. 561
* American case: Donaldson v. Donaldson [(1917) 31 Idaho 180,
170 P. 94]
* Canadian case: Chouinard v. Chouinard 10 D.L.R. (3d) 263].
* Canadian case: Knoll v. Knoll 10 D.L.R. (3d) 199, the Ontario
Court of Appeal
* Canadian case: Luther v. Luther [(1978) 5 R.F.L. (2d) 285, 26
N.S.R. (2d) 232, 40 A.P.R. 232], the Supreme Court of
Nova Scotia.
* Canadian case: Zalesky v. Zalesky 1 D.L.R. (3d)
471, the Manitoba Court of Queen's Bench.
* Australian case: Dunkley v. Dunkley (1938) SASR 325.
* Australian case: La Rovere v. La Rovere [4 FLR 1], the Supreme
Court of Tasmania.

#018 CASE OF HUSBAND REMARRYING AS WIFE DIDN'T RESPOND TO CALLS FOR COHABITATION

2008-12-30T00:04:00.000-08:00

QUESTIONS
* Can a Hindu husband remarry, if wife does not respond for several years to husband's calls for cohabitation?
* Is he liable to pay maintenance to wife U/S 125 of Criminal Procedure Code?

STATUTE
1. Section 125 (3) of Criminal Procedure Code.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is a just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

CASE NO.: Appeal (crl.) 179 of 2008
CASE NO.: Appeal (crl.) 126 of 2008
PETITIONER: Ahilyabai
RESPONDENT: Meharwan Singh
DATE OF JUDGMENT: 15/01/2008
BENCH: S.B. SINHA & V.S.SIRPURKAR
Judgement: somewhat in favour of wife.

To see the full text of this judgement, please visit: http://www.judis.nic.in/supremecourt/chejudis.asp.

BRIEF OUTLINE OF EVENTS/FACTS
* 1978-79: Married.
* 1982: Gauna ceremony.
* Husband wrote three letters calling upon the wife to join her matrimonial home.
* 1997: Husband remarried on the plea that wife didn't join her marrital home.
* 2002: Wife sought maintenance u/s 125 of Cr. P.C.
* Magistrate of the trial court ordered payment to the wife of a maintenance of Rs. 1,000 p.m.,
* Revisional Court didn't allow the maintenance.
* High Court refused to intervene.
* Supreme Court restored the order made by the Magistrate; (i.e. allowed the maintenance of Rs. 1,000/-.)

IMPORTANT
Judgements of different courts vary, depending on the circumstances of each case. Case law precedents will, therefore, only be indicative of how things are likely to be where similar facts/events recur.

SOME OBSERVATIONS
--

BLOGGER'S VIEWS
*The Supreme Court has relied on the provisions of Sec. 125(3).
*I also feel that husband's contracting a second marriage is adequate for attracting the provisions of Sec. 125(3).

CASES OF RELEVANCE
Kamlabai Vs.Gajanand 1984 MPWN 170.

#017 SEIZING AND IMPOUNDING PASSPORTS

2008-12-25T02:01:00.000-08:00

QUESTIONS
1. Whether a Police Officer can seize passports?
2. Whether a Police officer can impound passports?
3. Whether a Passport Authority can impound passports?
4. Whether courts can impound passports?
5. Whether the power of Courts to impound documents, applies to passports?

STATUTE
1. Section 102 of Cr.P.C. (Criminal Procedure Code).
2. Section 10 (3)(e) of Passport Act 1967.
3. Sec. 104 of Cr. P.C.
4. Art. 21 of Constitution - (includes freedom to travel).

CASE NO.: Appeal (crl.) 179 of 2008
PETITIONER: SURESH NANDA
RESPONDENT: C.B.I.
DATE OF JUDGMENT: 24/01/2008
BENCH: P.P. NAOLEKAR & MARKANDEY KATJU

To see the full text of this judgement, please visit: http://www.judis.nic.in/supremecourt/chejudis.asp.

BRIEF OUTLINE OF EVENTS/FACTS
An NRI on a visit to India. Police seize his passport, as a part of their investigation of the case pending against him. They submit the passport to the court along with other case documents.

Unable to travel abroad, the NRI approaches the trial court seeking an order to release his Passport. The trial court orders release, imposing some conditions on him. The NRI appeals to High Court, aggrieved by the conditions. The H/C refuses to order release of the Passport. The NRI appeals to the Supreme Court. The Supreme Court orders release of the Passport.

IMPORTANT
Judgements of different courts vary, depending on the circumstances of each case. Case law precedents will, therefore, only be indicative of how things are likely to be where similar facts/events recur.

SOME OBSERVATIONS
*Distinction between seizing and passport and impounding a passport is to be noted.
*Where provisions of a general law and special law overlap, the special law prevails.

BLOGGER'S VIEWS
*Court's powers to impound documents may not include passports. This is to be done by the Passport Authority.
*Police may seize passports for the purpose of investigation u/s 102 of Cr.P.C., but they cannot impound it (retain it for long). If they want impounding to be done, they should send the passport to the Passport Authority, with supporting reasons.
CASES OF RELEVANCE
Satwant Singh's case.
Maneka Gandhi's case.

#016 HINDU ADOPTION ACT UNJUST TO WOMEN

2008-12-19T23:02:00.000-08:00

CASE NO.: Appeal (civil) 7764 of 2001
PETITIONER: Brijendra Singh
RESPONDENT: State of M.P. & Anr.
DATE OF JUDGMENT: 11/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

STATUTE
Hindu Adoption and Maintenance Act 1956.
Section 8 of the Act reads as follows:
8. Capacity of a female Hindu to take in
adoption : Any female Hindu
(a) who is of sound mind,
(b) who is not minor, and
(c) who is not married, or if married,
whose marriage has been dissolved or whose
husband is dead or has completely and finally
renounced the world or has ceased to be a
Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind,
has capacity to take a son or daughter in
adoption.

BRIEF THEME OF THE CASE
1948.
Crippled girl, having practically no legs.
Given in marriage to a man.
Reason: Comply with a village custom that every virgin girl should be married.
The husband abandoned her without consummation (marriage maturing into sexual union).
She lived in her birth village with her parents.
Taking pity her parents gave her 32 acres of land for her maintenance.

1970.
The lady adopted a son. The adopted son was looking her welfare.

1974.
The useless husband died.

1981.
The land fell under Madhya Pradesh Land Ceiling. The Revenue Authorities wanted to take over her excess land.

She would have been entitled to hold upto 54 acres of land, some land for herself and some land for her son.

The Revenue Authorities disbelieved adoption and contested the fact, stating that she was not a divorced woman and she did not have the legal capacity to adopt a son.

Now, the legal battle between her and the Sub Divisional Officer started.

July 1989.
She executed a registered will in favour of her adopted son.

Dec. 1989.
She died.

The trial court upheld the adoption made by her. The High Court reversed it.

The Supreme Court in the judgement discussed in length about her capacity to adopt a son, mostly jurisprudential jargon.

BLOGGER'S VIEWS
The Hindu adoption law is pro-male. In the instant case, the property in question, the lady did not inherit from her husband. It is a property which her parents gave.

Courts in India make substantial distinction between divorced women, and women living like divorced women. This distinction seems to be purely technical. Are facts NOT more important than technicalities?

The Court, in this case, has also discussed the distinction between adoptiong children for religious reasons (offering annual 'pindams' to ancestors, doing karma kaand`as etc.) and adopting children for secular reasons (passing on property to sons, their looking after the adopted parents).

#015 WITHDRAWAL OF CRIMINAL CASE FILED AGAINST HUSBAND WHERE HUSBAND HAS WITHDRAWN HIS DIVORCE PETITION

2008-12-17T00:06:00.000-08:00

Transfer Petition (civil) 457 of 2006
PETITIONER: ARCHANA
RESPONDENT: VIMALENDRA PAL SINGH BHADAURIA
DATE OF JUDGMENT: 08/02/2008
BENCH: H.K. SEMA & MARKANDEY KATJU

STATUTES
Sec. 498A of I.P.C. (Harassment for dowry)
Sec. 482 of Cr.P.C. (High Court's powers to quash proceedings)
Sec. 320 of Cr.P.C. (Non-compoundability of crimes).

BRIEF DETAILS OF THIS CASE
Wife entering into settlement with husband.
Husband agreeing not to press on the divorce proceedings.
Wife praying for quashing for F.I.R. filed by her against husband and the criminal proceedings pending in a Session Court.

VERDICT
Supreme Court consented.

REASONS
Special nature of the case. Need for flexibility in case of marrital disputes.

IMPORTANT CASE WHERE GUIDELINES CAN BE FOUND

CASE NO.: Appeal (crl.) 383 of 2003
PETITIONER: B.S. Joshi & Ors.
RESPONDENT: State of Haryana & Anr.
DATE OF JUDGMENT: 13/03/2003.
BENCH: Y.K. Sabharwal & H.K. Sema.

URL WHERE THESE TWO CASES CAN BE SEEN
Click to go to: http://www.judis.nic.in/supremecourt/chejudis.asp

#014 ACQUITTAL WHERE CORPUS DELICTI HAS NOT BEEN PROVED

2008-12-15T04:08:00.000-08:00

CASE NO.: Appeal (civil) 1107 of 2005
PETITIONER: K.T. Palanisamy
RESPONDENT: State of Tamil Nadu
DATE OF JUDGMENT: 11/01/2008
BENCH: S.B. SINHA & DALVEER BHANDARI

TRIAL COURT: Life Imprisonment.
High Court: Confirmation.
Supreme Court: Acquittal.

BLOGGER'S VIEWS
Key elements which the Apex Court examined/observed:

1. Distinction between MAY BE and MUST BE/SHOULD BE

12. It is now well settled that in a case where an offence is said to
have been established on circumstantial evidence alone, indisputably all the links
in the chain must be found to be complete as has been held in Sharad
Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622] in the
following terms :
A close analysis of this decision would show that
the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned 'must or should' and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may
be proved' and 'must be or should be proved as was
held by this Court in Shivaji Sahebrao Bobade v.
State of Maharashtra where the following
observations were made:
certainly, it is a primary principle that the accused
must be and not merely may be guilty before a
Court can convict, and the mental distance
between 'may be' and 'must be' is long and divides
vague conjectures from sure conclusions.
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that the
accused is guilty.
(3) the circumstances should be of a conclusive
nature and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
153. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.

2. Need for proving "Corpus delicti" (material evidence such as dead body):

13. In this case, corpus delicti has not been proved. The same need
not be but the death as a fact must be proved. Even death has not been proved in
this case. No piece of mortal remains of the deceased was found. If the
prosecution witnesses are to be believed they had no reason to suspect the
appellant herein at the relevant point of time.

#013 RAPE CASE WHERE THE DEFENCE OF CONSENT FAILED

2008-12-15T03:29:00.000-08:00

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1279 OF 2001
Nehru @ Jawahar .........Appellant
Versus
State of Chhatisgarh ........
Respondent
Date of Judgement: 13th June 2008.
JUDGMENT
Dr. ARIJIT PASAYAT, J

You can see the full judgement by starting a case numberwise query as "Appeal (cr), No. 1279, and year 2001. URL: Click.

BLOGGER'S BRIEF REVIEW
This is a simple case of conviction for rape u/s 376 of I.P.C. The trial court awarded seven years R.I. The High Court reduced to five years R.I. The accused pushed it to Supreme Court. The defence of the accused: The raped girl (14 years) gave consent.

The Apex Court observed the following reply given by the victim during her cross-examination. :

"13. Having taken me inside the school accused
unloaded the wood stack I was carrying on my head and
told me to go inside the room but I didn't go into the
room. Thereupon accused caught hold me- when I
shouted accused gagged me and thereafter he took me
inside the room and made me to lie thereafter he lifted
my petticoat. When I hit him with the leg he caught hold
my leg. I had beaten him with the hand also thereupon
accused caught hold my hand, when accused released
my mouth, I tried to yet, he again gagged me.

14. The flooring of the room of the school is of stone
where accused had made me lie on the ground. I tried to
release myself from the grip of the accused with the
result my body waist had scratched."

The Supreme Court rightly observed:

8. Above being the position the plea of consent is without
substance.
9. The appeal lacks merit, deserves dismissal, which we
direct.

The accused has wasted seven years (2001 to 2008) in the Supreme Court.

#012 DOWRY HARASSMENT- DEATH OF MOTHER- CUSTODY OF CHILD WITH MATERNAL GRAND PARENTS

2008-12-09T01:57:00.000-08:00

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4960 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 1243 OF 2008

NIL RATAN KUNDU & ANR. ... APPELLANTS

VERSUS

ABHIJIT KUNDU ... RESPONDENT

IMPORTANCE
The Supreme Court reiterated that welfare of the child is important in deciding on the child's custody. In this case, the trial court and the High Court decided the custody of the child in favour of the natural guardian father, taking a legalistic view. The Supreme Court allowed the child custody in favour of the maternal grand parents.

#011, A case of dowry harrassment taking turns

2008-08-25T06:22:00.000-07:00

CASE NO.:
Appeal (crl.) 174 of 2008

PETITIONER:
SUNITA JAIN

RESPONDENT:
PAWAN KUMAR JAIN & ORS.

DATE OF JUDGMENT: 25/01/2008

BENCH:
C.K. THAKKER & D.K. JAIN.

SOME QUESTIONS EXAMINED BY THE SUPREME COURT
1. Whether a High Court could quash under Sec. 482 of Cr.P.C., the criminal proceedings pending in a lower court?

2. Whether a criminal court can revise its own judgements in criminal cases (S. 362 of Cr. P.C.?

BLOGGER'S VIEWS
This case is worth reading for:

1. Suffering wives, their relatives.
2. Harrassing husbands and their relatives.
3. Advocates of both the parties.

#001 INTEREST RATE OF 782% IN A LAND OF MILK AND HONEY

2008-03-21T00:26:00.000-07:00

To lay persons, US is a country of Milk and Honey, and a Nation which declares "In God We Trust!".

The Financial Journals globally blurt out everyday about the low rates of interest prevailing in the West. Here is an interesting case, tried by the United States Bankruptcy Court, Northern District of Georgia, Atlanta Division, Case No. 02-91845.
In the matter of Healing Touch Inc., Tamara Miles Ogier vs Synedra Smith Johnson.

Click: http://209.85.175.104/unclesam?q=cache:rDDQs1jfCUcJ:www.ganb.uscourts.gov/judges/opn/opn_view.php%3FId%3D222+flabbergast&hl=en&ct=clnk&cd=6.

The court's observation is worth noting:

"...Seven days after Defendant made the second loan of $30,000 to Debtor, it repaid the loan infull with interest in the amount of $4,500. That charge for the use of $30,000 for seven days worksout to an annual interest rate of 782%, which would flabbergast even the most avaricious loanshark. ..."

#004 DISCLOSURE OF REASONS IS CRUCIAL FOR ANY JUDGEMENT

2008-03-05T07:21:00.000-08:00

CASE NO.: Appeal (crl.) 222 of 2008
PETITIONER: Ran Singh and Anr.
RESPONDENT: State of Haryana and Anr.
DATE OF JUDGMENT: 30/01/2008

The Supreme Court of India corrected the Punjab and Hariyana High Court, its action of not giving reasons for its judgement.

Brief details: A dowry harrassment case filed by bride's father.

Statute under discussion: Definition of dowry u/s 2 of the Dowry Prohibition Act, 1961 (Dowry Act).

Section 2. Definition of 'dowry' In this Act,
'dowry' means any property or valuable
security given or agreed to be given either
directly or indirectly

(a) by one party to a marriage to the
other party to the marriage; or

(b) by the parents of either party to a
marriage or by any other person, to
either party to the marriage or to any
other person,

at or before or any time after the marriage in
connection with the marriage of the said
parties, but does not include dower or mehr
in the case of persons to whom the Muslim
personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is
hereby declared that any presents made at
the time of a marriage to either party to the
marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed
to be dowry within the meaning of this
section, unless they are made as
consideration for the marriage of the said
parties.

Explanation II- The expression 'valuable
security' has the same meaning in Section 30
of the Indian Penal Code (45 of 1860)."

The trial court held that no offenses could be made out against the father and mother. The High Court ordered added their names, without indicating reasons for its decision. The Supreme Court reversed the HIgh Court's decision. The Supreme Court's observations:

9. Reasons introduce clarity in an order. On plainest
consideration of justice, the High Court ought to have set forth
its reasons, howsoever brief, in its order indicative of an
application of its mind. The absence of reasons has rendered
the High Court's judgment not sustainable.

10. Even in respect of administrative orders Lord Denning
M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All
E.R. 1148) observed "The giving of reasons is one of the
fundamentals of good administration". In Alexander Machinery
(Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
"Failure to give reasons amounts to denial of justice". Reasons
are live links between the mind of the decision taker to the
controversy in question and the decision or conclusion arrived
at". Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals
the "inscrutable face of the sphinx", it can, by its silence,
render it virtually impossible for the Courts to perform their
appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least
sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons
for the order made, in other words, a speaking out. The
"inscrutable face of a sphinx" is ordinarily incongruous with a
judicial or quasi-judicial performance.

#006 SUPREME COURT CORRECTED A HIGH COURT NOT GIVING REASONS FOR ITS JUDGEMENT

2008-02-23T06:45:00.000-08:00

Supreme Court of India in its judgement dated 04/02/2008 corrected the omission of a High Court, in not giving reasons for its decision of dismissing an appeal.

Here are the observations of the Supreme Court, which are very reasonable:

6. The order of the High Court reads as follows:

"Heard. Dismissed".
It is absolutely non-reasoned. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application
of its mind. The absence of reasons has rendered the High Court's judgment unsustainable.

7. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery
(Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed:
"Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.

If you wish to see the full text of Supreme Court's judgement: Click here: Appeal (crl.) 257 of 2008 : Jagtamba Devi vs. Hemram and Others.

#007 GUIDELINES OF SUPREME COURT OF INDIA, FOR ENTERTAINING LETTERS/PETITIONS AS PIL

2008-02-23T06:21:00.000-08:00

GUIDELINES TO BE FOLLOWED FOR ENTERTAINING LETTERS/PETITIONS RECEIVED
IN SUPREME COURT OF INDIA, AS PUBLIC INTEREST LITIGATION (PIL):

These guidelines are available at Click to read.

These guidelines are clear, comprehensive and worth reading.

#008 SUPREME COURT OF INDIA ON PUBLIC INTEREST LITIGATION (PIL)

2007-12-29T21:41:00.000-08:00

The Supreme Court of India, in its Judgement dated Dec. 14, 2007, (Seema Dhamdhere, Secretary, M.P.S.C. vs. State of Maharashtra and Others) reiterated the guidelines given by it in Gurpal Singh vs. State of Punjab, (2005 (5) SCC 136).

"The scope of entertaining a petition
styled as a public interest litigation, locus
standi of the petitioner particularly in matters
involving service of an employee has been
examined by this court in various cases. The
Court has to be satisfied about (a) the
credentials of the applicant; (b) the prima facie
correctness or nature of information given by
him; (c) the information being not vague and
indefinite. The information should show
gravity and seriousness involved. Court has to
strike balance between two conflicting
interests; (i) nobody should be allowed to
indulge in wild and reckless allegations
besmirching the character of others; and (ii)
avoidance of public mischief and to avoid
mischievous petitions seeking to assail, for
oblique motives, justifiable executive actions.
In such case, however, the Court cannot afford
to be liberal. It has to be extremely careful to
see that under the guise of redressing a public
grievance, it does not encroach upon the
sphere reserved by the Constitution to the
Executive and the Legislature. The Court has
to act ruthlessly while dealing with imposters
and busy bodies or meddlesome interlopers
impersonating as public-spirited holy men.
They masquerade as crusaders of justice. They
pretend to act in the name of Pro Bono
Publico, though they have no interest of the
public or even of their own to protect.

As noted supra, a time has come to weed
out the petitions, which though titled as public
interest litigations are in essence something
else. It is shocking to note that Courts are
flooded with large number of so called public
interest litigations where even a minuscule
percentage can legitimately be called as public
interest litigations. Though the parameters of
public interest litigation have been indicated
by this Court in large number of cases, yet
unmindful of the real intentions and
objectives, High Courts are entertaining such
petitions and wasting valuable judicial time
which, as noted above, could be otherwise
utilized for disposal of genuine cases. Though
in Dr. Duryodhan Sahu and Ors. v. Jitendra
Kumar Mishra and Ors. (AIR 1999 SC 114),
this Court held that in service matters PILs
should not be entertained, the inflow of so-
called PILs involving service matters continues
unabated in the Courts and strangely are
entertained. The least the High Courts could
do is to throw them out on the basis of the
said decision. The other interesting aspect is
that in the PILs, official documents are being
annexed without even indicating as to how the
petitioner came to possess them. In one case,
it was noticed that an interesting answer was
given as to its possession. It was stated that a
packet was lying on the road and when out of
curiosity the petitioner opened it, he found
copies of the official documents. Whenever
such frivolous pleas are taken to explain
possession, the Court should do well not only
to dismiss the petitions but also to impose
exemplary costs. It would be desirable for the
Courts to filter out the frivolous petitions and
dismiss them with costs as afore-stated so that
the message goes in the right direction that
petitions filed with oblique motive do not have
the approval of the Courts."

#009 A DULL SPEECH TO JURISTS

2007-11-30T04:31:00.000-08:00

BLOGGER'S VIEW
Reproduced hereunder is the speech rendered by Ms. Pratibha Patil, the President of India, on Nov. 24, 2007, AT THE INTERNATIONAL CONFERENCE OF JURISTS ON THE RULE OF LAW, held in New Delhi.

The contents of the speech are rather dull. Though it may not be she herself, who might have prepared the speech, we have to presume that she might have perused it before reading it on the dais.

I am not referring to the lacklustre style. I am referring to the essential things which she has omitted.

1. The President not referring to the perils faced by Judges in Pakistan, is understandable in view of our delicate relations with our neighbor. It is also a custom not to raise inconvenient issues.

2. The President used cliches like "Justice delayed is justice denied" etc.

3. The President, in my humble view, ought to have referred to the following:

a) Language used in framing laws becoming complex and cumbersome and clumsy. Sentences (of language) are becoming circumlocuting (round-about).

b) Legislatures in some countries not consulting judiciary before framing laws, about the basic legality of the provisions they are going to make. This would obviate the need for Courts to strike down grossly illegal provisions and creating unnecessary CASE LAW., apart from the bitterness and unpleasantness it results.

c) Executives in some countries not implementing even reasonable decrees/orders/writs of even the highest courts in the respective countries.

d) Armies, Navies, Airforce and other military establishments thinking that they are beyond the purview of rule of law.

Not that the President should be too active instead of being ceremonial. At the sametime, the President (and her speechwriters) have to appreciate that international jurists assembled there for a session to hear what the President of the Largest Democracy in the world will say about the Rule of Law.

PRESIDENT'S SPEECH

"... I have great pleasure in participating at the International Conference of Jurists on the Rule of Law and am delighted to speak before this august gathering of legal luminaries and jurists. I would also like to congratulate the winners of the National Law Day Awards and the International Jurists' Awards.

Differing theories and the current ongoing debates do not permit a clear jurist's definition of what the "Rule of Law" means internationally. However, the concept in simple terms translates itself to mean not only the need to abide by the rulebook but also the need to guarantee that while the rule is being interpreted, the law should not be seen as unjust, inequitable, discriminatory and arbitrary. These principles have guided many democratic nations in their efforts to establish responsible and responsive governing systems.

Infact, a democratic form of government must have its foundations on a rule of law that advocates the absence of arbitrary power, equality before law and protection of individual liberties. The Constitution of India provides a powerful framework for the protection and enforcement of basic rights of the individual and rejects the arbitrary use of power; its provisions reflect a commitment to promote the rule of law. Article 14 of the Indian Constitution specifically provides for equality before law and the equal protection of the laws. Parliament and the State Legislatures are democratically elected on the basis of adult suffrage. There is independence of judiciary and the power of judicial review. All these provisions together constitute a firm commitment to the rule of law.

We recently celebrated the 60th year of our Independence. It marked a long journey in realizing our constitutional goals and democratic aspirations. We can be sufficiently proud of our unwavering commitment to function on the basis of the rule of law. We, as Indians, are also proud of our achievements in education, science and technology, agriculture, industry and commerce. However, there are still a large number of people living below the poverty line. What does social and economic justice mean to them? As Mahatma Gandhi wished, could we contribute to wiping a tear from every eye or an eye at a time? While, I am fully aware, of the service rendered by the higher judiciary in India in upholding the rule of law, I believe lawyers and jurists can contribute much more to helping the needy who knock on the doors of justice. Clearly, in a country with the size and magnitude of India, there remain many challenges in providing social justice as well as justice to the marginalized sections of our society. High cost of judicial remedy is a cause of concern that needs rectification. Alternative dispute settlement systems need to be encouraged.

We need to reinforce our efforts for the better implementation of the rule of law, particularly for the disadvantaged sections of society. People should be made aware of their substantive legal rights as well as legal courts that can be approached for the enforcement of their rights. Awareness campaigns will be important in educating people. Again, while awareness is the first step, it alone is not enough. People must believe that the enforcement of their rights is possible and that they will get remedies. Public perception of legal institutions is crucial in this regard. Courts should make procedures as simple as possible for persons to gain access to it. Even though free legal aid is guaranteed for the weaker sections of society, it should be remembered that the quality of legal aid plays a very important role. Creative solutions to this problem will have to be thought of. The basic postulate of the rule of law that "justice should not only be done but it must also be seen to be done", is a constant reminder of the high standards that must be maintained in delivering justice. In this context, sometimes justice delayed can become justice denied and hence the need to ensure speedier disposal of cases.

While it is seen that the concept of the rule of law at the domestic or national level excludes arbitrariness and calls for administrative accountability, at the international level it assumes different connotations. The United Nations is currently discussing the "Rule of Law at the National and International Levels". An understanding of the rule of law among States cannot simply mean "effectiveness of laws" as seen at the domestic levels. It would require adherence and respect for international law as well as undertaking obligations established by the Charter of the United Nations and other international instruments in good faith.

Some of the basic principles governing international relations that are enshrined in the UN Charter - such as sovereignty, equality of States, prohibition of the use of force and protection of basic human rights, have to be adhered to by all nations. In present times, challenges to the "Rule of Law" also include problems of international terrorism, a global economic order that does not have adequate representation in international financial institutions for developing countries, weapons of mass destruction, transnational crimes - drugs, trafficking of individuals, money laundering etc. to name a few. In international conflict situations, in many parts of the world, children and women who constitute the weaker section of society are subject to innumerable hardships. Many parts of Asia and Africa are still experiencing drought, famine, disease and malnutrition. In today's world, we need to focus on the real purpose of the rule of law and structures of governance which is to uphold human dignity, encourage broad-based growth and develop accountable systems.

I am sure this International Conference of Jurists will provide an excellent opportunity to debate and discuss better means and methods of upholding the rule of law and providing justice to the common man.

I wish you good luck and success in your deliberations and declare this Conference open. ..."

TAIL PIECE
BJP (Bharatiya Janata Party) raised a hue and cry about the allegations pending against Ms. Pratibha Patil, in Maharashtra before her election as the President and the Government's inaction in not registering Criminal Cases against her.

Now, the party is mum, why? Are the allegations false? Do the questions of RULE OF LAW arise only during elections?

#010 LEGAL REDRESSAL OF GRIEVANCES OF PRIVATE SECTOR EMPLOYEES/EXECUTIVES

2007-11-12T21:49:00.000-08:00

Employment in Private Sector is the order of the day in India. The employment may be in executive capacities or non-executive capacities.

Basically there is wide difference between employment in private sector and public sector. Where the Government or its organs are employers, an employee can approach the Supreme Court of India or the State High Courts seeking justice quoting various Articles of the Constitution, dealing with fundamental rights of citizens.

This is not the case with Private Sector employees and executives. They get hired and fired at the whims and fancies of the employers, particularly in IT firms. They slog for long work hours sometimes with due recognition and sometimes as unsung soldiers. The terms of employment between employees and employers are often reduced into a printed agreement in small fonts. Very rarely employees read the agreements they sign, but are bound by them.

Of course, even after reading, an employment-seeker cannot do anything about drastic terms and conditions they observe before signing, because employment opportunities are scarce. They, therefore, sign on dotted lines and may sometimes suffer. If there are some good Trade Unions working in the industry, to some extent they can neutralise the unilateral ways of employer.

Since wages and salaries in private sector are determined by contracts, they may vary from employee to employee and worker to worker. The basic principle "Equal pay for equal work" does not rule here. It is the manner in which Capitalism works.

In Public Sector, an employee can take up a plea of "Equal pay for equal work". This succeeds quote frequently.

#005 ARECA NUTS AND MONEY LENDING

2007-11-01T23:14:00.000-07:00

INTERESTING SUPREME COURT CASE

CASE NO.: Appeal (civil) 5540 of 2001
PETITIONER: M/s. P. Vaikunta Shenoy & Co
RESPONDENT: P. Hari Sharma
DATE OF JUDGMENT: 31/10/2007

A Commission Agent) lent advance money to an arecanut garden owner, for ensuring a regular supply of arecanuts, at an interest rate of 18% p.a. As the garden owner failed to supply the nuts, the Agent sued him to recover the loan. The garden owner claimed that the Commission Agent is engaged in money lending business without licence. Can the loan be recovered?

Ans. Yes. Pl. click this link to see the Supreme Court judgement: http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=29724

#003 CALLING SENIOR GOVT OFFICIALS TO COURT

2007-10-05T08:34:00.001-07:00

INTERESTING SUPREME COURT CASE

State of Gujarat vs. Turabali Gulamhussain Hirani & Another.
CRIMINAL APPEAL NO.1338 OF 2007 (Arising out of Special Leave Petition (Crl) No. 2252 of 2007.
Date of Judgement: Oct. 4, 2007.

Lower courts often call Senior Government officials to the court for various purposes. How far it is proper

The Supreme Court observed that it is not appropriate to call Senior officials of Govt. frequently to the Court.

Here is the link, to enable readers to look at the full text:

http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=29606

#100 JUDICIAL DISCIPLINARY AUTHORITY

2007-10-04T06:38:00.000-07:00

NEED FOR CENTRAL JUDICIAL DISCIPLINARY AUTHORITY
CONTEXT
1) comments of a Supreme Court Justice on the Chief Minister of a State

2) conviction of four scribes by a State High Court for Contempt of Court, in connection with a report of theirs which criticized the former Chief Justice of India.

Judicial activism and PIL (Public Interest Litigation) by and large helped the people's cause, particularly those causes which individuals or Corporates do not take up on their own owing to expensive lengthy litigation.

According to the Indian Constitution, all the three organs of the State 1) Legislature 2) Executive 3)Judiciary enjoy equal status. There is an unanimous agreement that one wing will not encroach into the jurisdiction of the other wing. This has, substantially, been respected during the last sixty years of independence.

In India judiciary acts with near perfect freedom. There are no shackles except serious shortage of judges and staff and some paucity of court premises. There are no major financial constraints. The judiciary has also functioned with great discretion, efficiency, honor and self-respect. However, owing to shortage of judges, legal ambiguities and tedious procedures, hundreds of thousands of cases piled up resulting in delays. Though a cliche due to excess use, the adage "Justice delayed is justice denied" continues to be highly relevant and valid.

Some instances of corruption among judges have also come out. One retired Supreme Court Chief Justice has also expressed his unhappiness about the corruption in Indian courts.

Though there may not be much corruption at higher level of judiciary, their occasional

obiter dicta

now and then resulted in some recentment.

In this context, the need for an Autonomous Central Judicial Disciplinary Authority (CJDA) becomes essential. There are also supporting circumstanes such as: 1. The Chief Justice of India and the Collegium of Supreme Court Judges are heavily burdened with their regular work. 2. They may have delicacies while dealing with complaints against their own present colleagues or their former colleagues at High Courts.

WHAT SORT OF CJDA WE MAY NEED? IF SO WHAT MODALITIES?

1. Should be a creation of a Special Act of Parliament.
2. Must be a Constitutional body, by inserting suitable Articles in the Constitution.
3. Must have powers to caution and punish the Judges of the Supreme Court and the High Court, except dismissal.
4. Must have powers to recommend dismissal of the judges. Actual dismissal should take place through the existing procedure of impeachment.

MEMBERSHIP AND ORGANISATIONAL STRUCTURE

1. Retired Presidents of India can be automatically admitted as members the moment they demit their office.
2. Retired Chief Justices and Justices of Supreme Court of India can be automatically admitted as members, the moment they retire.
3. -do- Retired Chief Justices of State High Courts.
4. The Seniormost former President of India can function as the Chair Person of the Authority.
5. The Seniormost retired Chief Justice of Supreme Court can function as the Secretary and Convenor.
6. Whenever the Secretary-Convenor is unable to or does not co-operate in convening the meeting of the Authority, the Chair-person may be empowered to convene.

7. The Authority should have good buildings matching its status, sufficient staff with appropriate seniority, vehicles, computers and other equipment. These are important because, the Authority must be able to investigate the complaints against judges independently.

8. It must have judicial powers over the Supreme Court, with regard to the service matters of the Judges of the High Court and the Supreme Court.

(To continue)