legal cell

Second FIR for the same offence?

2010-11-26T11:39:00.000-08:00

In the matter of Chirra Shivraj v. State of Andhra Pradesh decided on 26-11-2010 the Hon’ble Supreme Court held that “First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report”. In the case of Babubhai v. State of Gujarat & Others on 26th August, 2010, in Criminal Appeal No.1599 of 2010 (arising out of SLP(Crl.) No.2077 of 2010 this Court observed in para 13 as under: 13. ".......the investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973, (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 of the Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the nvestigating Officer has to file one or more reports under Section 173 of the Cr.P.C. Even after submission of the report under Section 173(2) of the Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, ..........". In the matter of Chirra Shivraj v. State of Andhra Pradesh it was further held that “In our opinion, it was not necessary to record another FIR as the death was result of septicemia which was due to the burn injuries. Looking to the facts of the present case, in our opinion, in fact the second FIR was nothing but a consequence of the event..... In the circumstances, the contents of the so called second FIR ...... could have been incorporated in the police diary as a result of further information or event which had been taken place in pursuance of the first offence.... It is true that the second FIR .... had been lodged .....when the report with regard to the death of the deceased was reported. As a mater of fact, in our opinion, it was not necessary to note the same as a new FIR but simply because the S.H.O made a mistake by recording it as a fresh FIR, it would not make the case of the prosecution weak especially when no prejudice had been caused to the appellant or any other person because of the aforestated further information with regard to the death being recorded as a new FIR”.

Whether a dying declaration can be the sole basis for conviction?

2010-11-26T11:30:00.000-08:00

In Puran Chand v. State of Haryana, 2010 (6) SCC 566, it was held that: "15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration......... 18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubt can be the sole basis for convicting the accused. ......... " In the matter of Chirra Shivraj v. State of Andhra Pradesh dated 26-11-2010 the Hon’ble Supreme Court relied upon the above said decision of this court and held that “ it cannot be said that on the sole basis of dying declaration the order of conviction could not have been passed”.

Independence of constitutional functionaries v. Right to Information

2010-11-26T10:42:00.001-08:00

In the matter of Central Public Information Officer,Supreme Court of India v. Subhash Chandra Agrawal dated 26-11-10 the Hon’ble Supreme Court of India made the following observation under the scope of the Right to Information Act: It is in the public interest to keep the appointment and transfer of Supreme Court and High Court Judges from "needless intrusions by strangers and busybodies in the functioning of the judiciary". In the matter of (1981) Supp SCC 87 and (1993) 4 SCC 441 this court held that "This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation..." It was further submitted that the appointment of Judges is essentially a discharge of constitutional trust as laid down by this Court in Subhash Sharms Vs. Union of India. The submission was that the information made available to the Chief Justice of India in respect of appointment of Judges of the High Court and as well as the Supreme Court is held by him in trust and in fiduciary capacity. In S.P.Gupta (1991) Supp. 1 SCC 574 it was further observed that on a holistic reading of the said judgment, it appears that the Court was mainly dealing with the question as to whether any immunity could be claimed from production of the records in respect of the correspondence between the Law Minister and the Chief Justice of India and the relevant notings made by them in regard to the transfer of a High Court Judge including the Chief Justices of the High Court which were extremely material for deciding whether there was full and effective consultation? It is observed at more than one place that the non- disclosure of the said documents would seriously handicap the petitioner therein in showing that there was no full and effective consultation with the Chief Justice of India or that the transfer was by way of punishment and not in public interest. It is observed: “It would become almost impossible for the petitioner, without the aid of these documents, to establish his case, even if it be true." The Court felt that "all relevant documents should be produced before the court so that the full facts may come before the people, who in a democracy are the ultimate arbiters". The Court further observed : "We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them, in regard to discontinuance of an Additional Judge are relevant to the issues arising in a judicial proceeding, they should not be disclosed. ... Where it becomes relevant in a judicial proceeding, why should the Court and the opposite party and through them, the people not know what are the reasons for which a particular appointment is made or a particular Additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding". The court further observed that Whether the said decision would be applicable when such information is sought under the provisions of the Right to Information Act is an important question that is required to be gone into. It stated that “we are of the considered opinion that a substantial question of law as to the interpretation of the Constitution is involved in the present case which is required to be heard by a Constitution Bench. The case on hand raises important questions of constitutional importance relating to the position of Hon'ble the Chief Justice of India under the Constitution and the independence of the Judiciary in the scheme of the Constitution on the one hand and on the other,fundamental right to freedom of speech and expression. Right to information is an integral part of thefundamental right to freedom of speech and expression guaranteed by the Constitution. Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of Judiciary forms part of basic structure of the Constitution of India. The independence of Judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced. The Constitution is fundamentally a public text—the monumental character of a Government and the people-- and Supreme Court is required to apply it to resolve public controversies. For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the Indian habit, extraordinary to other democracies, of casting social, economic, philosophical and political questions in the form of public law remedies, in an attempt to secure ultimate resolution by the Supreme Court. In this way, important aspects of the most fundamental issues confronting our democracy finally arrive in the Supreme Court for judicial determination. Not infrequently, these are the issues upon which contemporary society is most deeply divided. They arouse deepest emotions. This is one such controversy. William J. Bennan, Jr. in one of his public discourse observed: "We current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. This realization is not, I assure you, a novel one of my own creation. Permit me to quote from one of the opinions of our Court, Weems V. United States, 217 U.S. 349, written nearly a century ago: "Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice John Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care and provision for events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be." The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issues. Most of the times we reel under the pressure of precedents. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? Following substantial questions of law as to the interpretation of the Constitution arise for consideration:
1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?
2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision? 3.Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act? “
the court held that “the above questions involve the interpretation of the Constitution raise great and fundamental issues”. For the aforesaid reasons, the court directed the Registry to place this matter before Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength.

Related Person under the Central Excise Tariff Act, 1985

2010-11-26T09:51:00.000-08:00

In the matter of Commissioner, Central Excise,Chandigarh v. M/s. Kwality Ice Cream Co. dated 26/11/2010 the Hon’ble Supreme Court of India discussed in the detail about who can be called as related person under the Central Excise Tariff Act, 1985(for short `the Act'). It observed that under Section 4 of the Act provides as under: "SECTION 4. VALUATION OF EXCISABLE GOODS FOR PURPOSES OF CHARGING OF DUTY OF EXCISE. (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other pro visions of this section, be deemed to be-(a) The normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: Provided that - (i) Where, in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers; (ia) where the price at which such goods are ordinarily sold by the assessee is different for different places of removal, each such price shall, subject to the existence of other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such place of removal; (ii) Where such goods are sold by the assessee in the course of wholesale trade for delivery at the time and place of removal at a price fixed under any law for the time being in force or at a price, being the maximum, fixed under any such law, then, notwithstanding anything contained in clause (iii) of this proviso, the price or the maximum price, as the case may be, so fixed, shall, in relation to the goods so sold, be deemed to be the normal price thereof; (iii) Where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons), who sell such goods in retail; (b) Where the normal price of such goods is not ascertainable for the reason, that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2)........... (3)........... (4) For the purposes of this section,- (a) "Assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent;(b).............(c) "Related person" means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee, and any sub- distributor of such distributor. Explanation : In this clause "holding company", "subsidiary company" and "relative" have the same meanings as in the Companies Act, 1956." According to clause (c) of sub-section (4) of Section 4 of the Act, `related person' means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company etc. The explanation to Section 4 (4) (c) further provides that in this clause `holding company', `subsidiary company' and ` relative' have the same meanings as in the Companies Act, 1956. It is in this background that the validity or otherwise of the Tribunal's order is required to be analyzed and judged. In Union of India vs. Bombay Tyre International Ltd.1, this Court examined the scheme of Section 4 (1) (a) before the Amendment Act, 1973 and also the position after the amendment. It was contended in that case before this Court that the definition of the expression "related person" was arbitrary and it included within its ambit a distributor of the assessee. This Court, however, held that in the definition of `related person' being a relative and a distributor could be legitimately read down and its validity upheld. The definition of `related person' should be so read, this Court emphasised, that the words "a relative and a distributor of the assessee" should be understood to mean a distributor who was a relative of the assessee. The Explanation to Section 4(4)(c) provides that the expression "relative" has the same meaning as in the Companies Act, 1956. The definition of "related person", as being "a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company ...", shows a sufficiently restricted basis for employing the legal fiction. It was reiterated that it is well settled that in a suitable case the Court could lift the corporate veil where the companies share the relationship of a holding company and a subsidiary company and also pay regard to the economic realities behind the legal facade. This aspect was further examined by this Court in Union of India Vs. ATIC Industries Ltd.This Court referred to the decision of Bombay Tyre International Ltd. (supra) and also referred to the first part of the definition `related person' in clause (c) of Section 4 [ 1984 (17) ELT 323 SC = 1984 (3) SCR 930]. (4) which defines `related person'. This Court observed that if the transactions between the manufacturer and his customers were on principal to principal basis and the whole sale price charged by the assessee to the customers was the sole consideration for the same and no extra commercial considerations entered in the determination ofsuch a price, the customer cannot be held to be a `related person' merely because he holds 50% share in the manufacturing company. It is held: "It is not enough that the assessee has an interest, direct or indirect, in the business of the person alleged to be a related person nor is it enough that the person alleged to be a related person has an interest, direct or indirect, in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest, direct or indirect, in the business of each other. Each of them must have a direct or indirect interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other" In Union of India vs. Playworld Electronics Pvt.Ltd., this Court took the view that merely because goods are produced with customer brand name and the entire production sold to the owner of the brand name, cannot be treated as a sale between `related persons'. The case was that Playworld Electronics Pvt.Ltd. manufactured its products in the brand name of `Bush' from the very beginning and was selling the same exclusively to M/s. Bush India Limited or its authorized dealers only. This Court took the view that the market value of the goods of Playworld Electronics Pvt. Ltd. was the price charged from M/s. Bush India Ltd. and not the market value at which price M/s. Bush India Ltd. sold to its wholesalers for the purpose of payment of excise duty. In Calcutta Chromotype Ltd. vs.Collector of Central Excise, Calcutta4 . The said decision refers the decision of this court in Atic Industries Ltd. (supra). The Court in the said decision also noticed the view expressed by this Court in Collector of Central Excise, Madras vs. T.I. Millers Ltd., Madras and T.I. Diamond Chain, Madras [ 1988 (35) E.L.T. 8 (SC)], Snow White Industrial Corporation vs. Collector of Central Excise [ 1989 (41) E.L.T. 360 (SC)]. After the analysis of all the said decisions this Court held: "If we examine the thrust of all the decisions, there is no bar on the authorities to lift the veil of a company, whether a manufacturer or a buyer, to see it was not wearing that mask of not being treated as related person when, in fact, both, the manufacturer and the buyer, are in fact the same persons. Under sub-section (1) of Section 4 of the Act, value of the excisable goods shall not be deemed to be normal price thereof, i.e., the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, if the buyer is a related person and price is not the sole consideration for sale. As to who is a related person, we have to see its definition in Section 4(4)(c) of the Act. It is not only that both the manufacturer and the buyer are associated with each other for which corporate veil may be lifted to see who is behind it but also that they should have interest, directly or indirectly, in the business of each other. But once it is found that persons behind the manufacturer and the buyer are same, it is apparent that the buyer is associated with the manufacturer, i.e., the assessee and then regard being had to the common course of natural events, human conduct and public and private business it can be presumed that they have interest, directly or indirectly, in the business of each other (refer Section 114 of the Evidence Act). It is, however, difficult to lay down any broad principle to hold as to when the corporate veil should be lifted or if on doing that, it could be said that the assessee and the buyer are related persons. That will depend upon the facts and circumstances of each case and it will have to be seen who is calling the shots in both the assessee and the buyer. When it is the same person the authorities can certainly fall back on the third proviso to clause (a) of Section 4(1) of the Act, to arrive at the value of the excisable goods. It cannot be that when the same person incorporates two companies of which one is the manufacturer of excisable goods and the other is the buyer of those goods, the two companies being separate legal entities, the Excise authorities are barred from probing anything further to find out who is the person behind these two companies. It is difficult to accept such a narrow interpretation. True that shareholdings in a company can change but that is the very purpose to lift the veil to find out if the two companies are associated with each other. Law is specific that when duty of excise is chargeable on the goods with reference to its value then the normal price on which the goods are sold shall be deemed to be the value provided (1) the buyer is not a related person and (2) the price is the sole consideration. It is a deeming provision and the two conditions have to be satisfied for the case to fall under clause (a) of Section 4(1) keeping in view as to who is the related person within the meaning of clause (c) of Section 4(4) of the Act. Again if the price is not the sole consideration, then again clause (a) of Section 4(1) will not be applicable to arrive at the value of the excisable goods for the purpose of levy of duty of excise." In Flash Laboratories Ltd. vs. Collector of Central Excise, New Delhi the appellant-Company was a manufacturer of toothpaste ("Prudent") falling under Sub-Heading 3306.00 of the Schedule to the Act. It had been selling its products to its holding Company, PP Ltd. as well as to PB Ltd. which was also a subsidiary Company of PP Ltd. The appellant had been paying duty at the price at which the goods were sold to the holding Company. Having regard to the fact that both appellant as well as PB Ltd. were subsidiary Companies of PP Ltd., this Court took the view that though the relationship between the appellant and PB Ltd. is indirect, they had mutual interest in the business of each other. The facts and circumstances of the case reveal that there is a mutuality of interest between the three Companies as 60% of the products of the appellants was sold to PP Ltd. And remaining 40% of the total products of toothpaste was being sold to PB Ltd. Moreover, it was found that PP Ltd. Was incurring expenses for sales promotion and advertisement for the sale of the appellants' products namely "Prudent Toothpaste". It was under those circumstances it was held that the parties to the transactions were `related persons'. In CCE vs.Xerographic Ltd., this Court reiterated the well settled principle and laid down the three conditions that are required to be satisfied before invoking the third proviso, namely, firstly, there should be mutuality of interest; secondly, that the alleged `related person' should be related to the assessee as per definition of Section 4 (4) (c) given in the Act and thirdly, and importantly, that the price charged from the `related persons' was not the normal price but the price lower than the normal price and because of extra-commercial considerations the price charged was less than the normal value. On analysis of the decisions referred to herein above, it appears what is important is that each of the parties involved should have an interest, whether direct or indirect in the business of each other.In Supreme Washers Pvt. Ltd. vs. Commissioner of Central Excise, Pune7, the Court had to consider and analyse the concept of mutual interest and it was found that there was common procurement of raw material, parties had common stock accounting and planning and interdependence in manufacturing operations. It was held that having common stock of raw material and semi finished goods, having common use of machinery between the three units, having common marketing arrangements and free flow of finance between the three units cumulatively indicates interdependence of the three units with each other as also inter-relationship, cumulatively establishes the appellants inter relationships and interdependence with each other.

Prevention of Corruption Act, 1988 and its difficulty

2010-11-25T11:21:00.000-08:00

Prevention of Corruption Act was enacted to prevent corruption. But its misuse and preventive interpretation has created many difficulties. Courts has to look in every aspect whether the person has actually done an offece under the said Act or it is mere an act to trouble him. the very first question comes in my mind is if i have not asked money and the work has been done promptly by me(if there is no legal bar) how can i be booked for the same? the same attempt was made in the matter of C.M. Sharma v. State of A.P. Th. I.P. decided on 25/11/2010 by the Hon'ble Supreme Court of India. in this case the appellant(who was posted as Deputy Chief Engineer, Railway Electrification, South Central Railway, Vijaywada.) was arrested and sentenced for taking illegal money from one Venka Reddy (hereinafter referred to as the `contractor'). During the years 1992-1994contractor,was awarded the contracts of railway electrification between railway stations Bhongir and Sanathnagar and Maulali and Sanathnagar bypass under agreement No. 29 dated 3.4.1992 and agreement No. 41 dated 20.11.1992 respectively. Further by agreement No. 3 dated 18th October, 1994 work to provide height gauges at railway crossing between Vijayawada and Gannavaran was awarded to him. The contractor completed the works to the satisfaction of the railway authorities and in respect of the works covered by aforesaid agreement nos. 29 and 41 he received the payment. The contractor also completed the work covered under agreement No. 3 dated 18.10.1994 aforesaid in the month of March, 1995. The appellant was the competent authority to pass the bills and accordingly the contractor met him on 19.4.1995 and requested to finalise the bill. The appellant denied to issue and demanded Rs. 3,000/- as illegal gratification. The contractor expressed his inability to pay the illegal gratification but the appellant insisted and asked him to bring the money on 20th April, 1995.He then met the officials of the Central Bureau of Investigation and gave a written report. Being satisfied with the bonafide of the allegation, a pre-trap exercise was undertaken on the instruction of office Superintendent.The contractor alongwith the shadow-witness to the office of the appellant. The witness was asked to leave the chamber and he went out. Thereafter appellant demanded the money and the contractor handed over the tainted money to him, which he received from his right hand and kept in right side pocket of the trouser. A signal was given, whereupon the Inspector along with his team entered in the chamber, apprehended the appellant and conducted sodium carbonate test on the fingers of both the hands and right trouser pocket of the appellant, which turned pink. The tainted notes were lying on the floor of the office, which were recovered. After usual investigation, the Investigating Agency submitted the charge-sheet and the appellant was put on trial, where he abjured his guilt and claimed to be tried. The appellant in his statement under Section 313 of the Code of Criminal Procedure made a plea of false implication of him due to enmity with the contractor. The same was rejected by the trial court and accordingly the appellant was convicted and sentenced , which was further affirmed in appeal by the High Court. The same plea was also made by the accused before Supreme Court that he has been falsely implicated as there being strained relationship between the appellant and the contractor it is highly improbable that he would demand the illegal gratification from him.it was stated that In the case of Panalal Damodar Rathi v. State of Maharashtra, 1987 Supp. SCC 266 this court held that “26. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion." Further in the case of Panalal Damodar Rathi vs. State of Maharasthra, (1979) 4 SCC 526 and which attention has been drawn to paragraph 9 thereof which reads as follows: "9. It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to by the panch witness PW 3. According to panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that PW 3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by PW 3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on." Another decision on which reliance is placed is the decision of this Court in the case of Meena (Smt) W/O Balwant Hemke v. State of Maharashtra, (2000) 5 SCC 21 in which it held as follows: "The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW 5 categorically admitted that even as the Inspector of Police, PW 6 arrived, the appellant gave the same version that PW 1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW 1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW 3, the Head Copyist, seems to be the brain behind all this and that PW 1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW 3, his closeness to PW 1 and Jagdish Bokade stands well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below."Reference was also made to a decision of this Court in the case of Dalpat Singh and another v. State of Rajasthan, AIR 1969 SC 17, in which it has been held as follows: "We are unable to accept the contention of the learned counsel for the appellants that PWs 1,2,3,4 and 17 and other prosecution witnesses to whose evidence we shall presently refer, should be considered as accomplices and therefore their evidence is required to be corroborated in material particulars before being accepted. On the proved facts, even those who gave illegal gratification to the appellants cannot be considered as accomplices as the same was extorted from them. Though PWs 1,2,4 and 17 can be considered as interested witnesses as regards their evidence relating to trap, as a matter of law, it is not correct to say that their evidence cannot be accepted without corroboration, see State of Bihar v. Basawan Singh 1959 SCR 195 = (AIR 1958 SC500) . In the present case after considering all the relevant submission made by the respected counsels of the parties the Court held that “We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the act within the mischief of Sections 7 and 13 (1) (d) (ii) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the contractor as he had passed his bills. There is further evidence that when the contractor went along with the shadow-witness on the date told by the appellant for payment of the bribe, appellant asked the shadow-witness to leave the chamber and thereafter the demand for payment of illegal gratification was made and paid. The positive sodium carbonate test vis-`-vis the fingers and right trousers pocket of the appellant go to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof.” According Court dismisses the appeal and upheld the order of trail court and the High Court.

High Court can not override its own order which has become final in absent of any appeal or review under Sections 151 and 152 of C.P.C

2010-11-25T09:33:00.000-08:00

Hon'ble Supreme Court in the matter of Sarup Singh v. Union of India dated 25/11/2010 held that a High Court can not override its own judgment which has become finality in absence of any appeal or review aginst such order. it further held that the executing court can rightly ignore such decision as being nullity. in this case the Hon'ble High Court enhanced the compensation amount under Land Acquisation (amendmenat) Act,1984 which was previously decided by the same High Court. the Hon'ble Supreme Court discussed this matter in length and observed as follows:
It is true that the executing court cannot go behind the decree and grant interest not granted in the decree as in the light of the decision rendered by this Court in State of Punjab & Others v. Krishan Dayal Sharma reported in AIR 1990 SC 2177. But, if a decree is found to be nullity, the same could be challenged and interfered with at any subsequent stage, say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction and the same is non-est and void ab initio. The aforesaid position is well-settled and not open for any dispute as the defect of jurisdiction strikes at the very root and authority of the Court to pass decree which cannot be cured by consent or waiver of the parties. This Court in several decisions has specifically laid down that validity of any such decree or order could be challenged at any stage. In Union of India v. Sube Ram & Others reported in (1997) 9 SCC 69 this court held thus:"5. [...] here is the case of entertaining the application itself; in other words, the question of jurisdiction of the court. Since the appellate court has no power to amend the decree and grant the enhanced compensation by way of solatium and interest under Section 23(2) and proviso to Section 28 of the Act, as amended by Act 68 of 1984, it is a question of jurisdiction of the court. Since courts have no jurisdiction, it is the settled legal position that it is a nullity and it can be raised at any stage." In yet another case of Amrit Bhikaji Kale & Others v. Kashinath Janardhan Trade & Anothers reported in (1983) 3 SCC 437 this Court has held that when a Tribunal of limited jurisdiction erroneously assumes jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision are wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and its validity can be raised in collateral proceeding. In Balvant N. Viswamitra & Others v. Yadav Sadashiv Mule (Dead) Through Lrs. & Others reported in (2004) 8 SCC 706 this Court stated thus: "9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, and irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks herent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings." In Chiranjilal Shrilal Goenka (deceased) Through Lrs. v. Jasjit Singh & Others reported in (1993) 2 SCC 507 this Court stated thus: "18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. ............." In the present cases the judgment and order passed by the High Court before the amendment Act of 68 of 1984 became final and binding as no appeal was brought to this Court thereafter. However, consequent to the Amendment in the Land Acquisition Act, the appellants had filed civil miscellaneous applications for the grant of 30 per cent solatium and 9 per cent interest for first year and 15 per cent interest thereafter. This Court has also held in a catena of decisions that a decree once passed and which has become final and binding cannot be sought to be amended by filing petition under Sections 151 and 152, C.P.C. In the case of Union of India v. Swaran Singh & Others reported in (1996) 5 SCC 501 this Court held thus:- "8. The question then is whether the High Court has power to entertain independent applications under Sections 151 and 152 and enhance solatium and interest as amended under Act 68 of 1984. This controversy is no longer res integra. In State of Punjab v. Jagir Singh and also in a catena of decisions following thereafter in Union of India v. Pratap Kaur; State of Maharashtra v. Maharau Srawan Hatkar; State of Punjab v. Babu Singh; Union of India v.Raghubir Singh and K.S. Paripoornan v. State of Kerala, this Court has held that the Reference Court or the High Court has no power or jurisdiction to entertain any applications under Sections 151 and 152 to correct any decree which has become final or to independently pass an award enhancing the solatium and interest as amended by Act 68 of 1984.Consequently, the award by the High Court granting enhanced solatium at 30% under Section 23(2) and interest at the rate of 9% for one year from the date of taking possession and thereafter at the rate of 15% till date of deposit under Section 28 as amended under Act 68 of 1984 is clearly without jurisdiction and, therefore, a nullity. The order being a nullity, it can be challenged at any stage. Rightly the question was raised in execution. The executing court allowed the petition and dismissed the execution petition. The High Court, therefore, was clearly in error in allowing the revision and setting aside the order of the executing court." In the case of Union of India v. Rangila Ram (dead) by Lrs. Reported in (1995) 5 SCC 585 held as follows: - "4. The point is no longer res integra. This Court has considered the scope of the power of the High Court under Sections 151 and 152, CPC and also under Section 13-A of the Act. This Court has held that once the civil court made an award as per law then in force which became final and that there is no error of law as on that date. Subsequent amendment does not give power to the court to amend the decree under Sections 151 and 152, CPC. This was held in State of Maharashtra v. Maharau Srawan Hatkar and Union of India v. Pratap Kaur. In Maharau Srawan Hatkar case this Court held that the civil court lacked inherent jurisdiction and was devoid of the power to entertain an application to award additional benefits under the Amendment Act 68 of 1984. The facts therein were that the award had become final and the Amendment Act 68 of 1984 had come into force on 24-9-1984. The respondents made an application under Sections 151 and 152, CPC to award enhanced solatium and additional benefits etc. and the civil court allowed and granted the same. In that context, considering the civil court's power under Sections 151 and 152, CPC, this Court laid the above law." In the case of Dwaraka Das v. State of M.P. & Another reported in (1999) 3 SCC 500 this Court described the scope of Section 152, C.P.C. thus: "6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order.

Free legal opinion/advice

2010-11-24T21:04:00.001-08:00

who says law is only for rich. who says the best legal advices can be accessed by only high society people. who says that we have to approach a lawyer for all kind of legal advice and kill our time with them by paying huge sum of money. now the time has come to have your legal advice and pay as per your satisfaction. this blog provides you all type of legal advice and opinion based on any kind of legal or para legal problems. so avil this great opportunity and be a lawyer of yourself by having access to the legal advice pertianing to any legal matter on the payment of your choice.
mail your problems on legalwall.ravi@gmail.com for all kind of legal opinion for good cause.

E- Filing in India- dream come true

2010-11-24T07:46:00.000-08:00

In India now no one has to follow the same traditional method of filing the case. the new approach adopted by the Hon'ble Supreme Court of India sounds really impressive. this step of the Apex court will give the court a new dimention. it will also advance the use of technology and its adaptability in India. the court has provided some guidelines for the same. the guidelines regarding E-filing of the case i.e. who can file and other important informations are available in the official website of the Supreme Copurt of India. povisions relating to E-filing have been mentioned hereunder for easy referance of common man

INSTRUCTIONS FOR E-FILING REGISTRATION

1. First time users of Supreme Court E-filing have to register him/her through the "Sign Up" option.

2. Through "e-FILING" only Advocate-on Record and petitioners-in-person can file cases in the Supreme Court of India.

3. Advocate option is to be chosen if you are an "Advocate-on-Record", otherwise choose "In-person" option in case you are petitioner-in-person.

4. For registering first time personal details such as Address, contact details, E-mail Id etc., which are mandatory, need to be entered.

5. For Advocate-on-record, his/her code (Advocate-on-record code) will be "Login-ID", while "In-person" will create his/her Login-Id through "Sign Up" option. Password needs to be entered thereafter. Login Id and password will be created once the mandatory requirements are filled properly.

6. After successful login the "Disclaimer screen" appears on the screen.

7. Clicking of "I agree" button on Disclaimer allows the user to proceed further, while "I decline" button sends the control back to the Login screen.

8. After successful login, the user can file the case electronically.

9. "New Case" option allows the user to file a new case.

10."Modify" option allows a user to carryout changes to the already e-filed case, provided the court fee payment option is not invoked.

11. Court fee can be paid only through credit card.

12. Defects associated with the e-filed case will be e-mailed to the advocate/petitioner by the Supreme Court Registry.

13. Petitions filed through E-MAIL are not entertained. For Electronic filing of case in Supreme Court. Use E-Filing facility only. Payment of Fee for E-Filed case are accepted only through Credit Cards and Debit Cards of the following banks mentioned below:

Andhra Bank, Axis Bank Limited, Barclays Bank Plc, Canara Bank, City Union Bank Ltd. Corporation Bank Deutsche Bank AG GE Money Financial Services Ltd. HDFC Bank Ltd. ICICI Bank Ltd. Also for Mastercard debit cards (Only on ICICI PG) Indian Overseas Bank Kotak Bank-Virtual card Standard Chartered Bank State Bank of India Syndicate Bank The Federal Bank Ltd.The Karur Vysys Bank Ltd.

14. For further assistance, "Help" option is available.

INSTRUCTIONS FOR AVAILING ORDER / DOCUMENTS

Note dated 25-06-07 of Ld. Registrar regarding providing of certified copy of order through post and charges thereof.

Whenever any person /party concerned sends application by post or through e-mail for issuance of certified copy of order/document etc. first of all charges are calculated as the details given below

1. Folio(per page) - Rs.1/-

2. Certification charges - Rs.10/-

3. Urgency charges - Rs.5/-

4. Postal charges(minimum)by Regd. Post - Rs.22/-

5. Third party - Rs.5/-

After the calculation of amount according to the number of pages of particular order plus other charges as mentioned above, the party concerned is informed by post or e-mail(if e-mail id is mentioned in his application)to send the charges by the way of "Money Order" in favour of Assistant Registrar(Copying). On receipt of amount, Court fee is purchased and affixed at the application and certified copy of order, as requested, is dispatched by Regd. Post only at the address mentioned in the application.

Are the Hard Discs documents?

2010-11-24T06:53:00.000-08:00

In the matter of Dharambir vs Central Bureau Of Investigation decided on 11 March, 2008 the Hon’ble Supreme Court of india took the reference of Section 173(5)(a) and Section 207 CrPC, which read thus:
173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) The names of the parties;
(b) The nature of the information;
(c) The names of the persons who appear to be acquainted with the circumstances of the case;
(d) Whether any offence appears to have been committed and, if so, by whom;
(e) Whether the accused has been arrested;
(f) Whether he has been released on his bond and, if so, whether with or without sureties;
(g) Whether he has been forwarded in custody under Section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) All documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) The statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of' Sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)
207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.
(i) the police report;
(ii) the first information report recorded under Section 154:
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173.
(iv) The confessions and statements, if any, recorded under Section 164;
(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall, instead of furnishing the accused with
a copy thereof', direct that he will only be allowed to inspect it either personally or through pleader in Court.
And observed that the scheme of the above two Sections indicates that the Legislature has intended to differentiate between documents forwarded to a court by the police along with the charge sheet or sent to it earlier during the course of investigation on the one hand and the statements of prospective witnesses recorded by the police during investigation under Section 161 CrPC, copies of which are also forwarded to the Court along with the charge sheet, on the other. This is plain from the language of Section 173(5)(a) when compared with that of Section 173(5)(b) read with Section 173(6) and the first and second provisos to Section 207(v) CrPC. For instance, the reference in Section 173(6) to 'any such statement' is to the statement of witnesses referred to in Section 173(5)(b) CrPC, i.e statements recorded of prospective witnesses under Section 161 CrPC. In relation to these statements the police office has a discretion under Section 173(6) CrPC to withhold a part thereof if he forms an opinion that it is inexpedient in public interest to do so and inform the Magistrate accordingly. Further, the first proviso to Section 207(v) gives a discretion to the Magistrate to provide to the accused even those statements which 'the Magistrate thinks appropriate' shall be furnished. This is in contrast to the position regarding documents. Section 173(5)(a) CrPC refers to documents 'on which the prosecution proposes to rely' other than 'those already sent to the Magistrate during the investigation'. These documents are to be forwarded to the Magistrate along with report. Therefore at the stage when the supply of documents has to be made in terms of Section 207(v) CrPC what the Magistrate has with him are those documents which have already been sent to the Magistrate during the course of investigation and those documents that are forwarded by the police officer along with the charge sheet. Under Section 207(v), the Magistrate has no discretion in the matter of not supplying such documents. The only limited discretion that the Magistrate has in terms of the second proviso to Section 207(v) CrPC is if the documents are so voluminous he can direct that the accused will be permitted only an inspection of the documents. Since considerable importance is attached, on a reading of the aforementioned two provisions of the CrPC, to the supply to the accused of all the 'documents' proposed to be relied upon by the prosecution, the question that arises is whether the HDs are documents of which copies can be asked for by the accused. The meaning of the word 'document' used in Section 173(5)(a) as well as Section 207(v) has to be appreciated in the present case in the context of the nature of document the copy of which is being sought. Here we are concerned with digital copies, in the form of voice executable. WAV (sound format) files, of the intercepted telephone conversations which were directly recorded on to an electronic device viz., the hard disc. This can be better understood by referring to the meaning of the words 'document' and 'evidence' occurring in Section 3 of the EA. The said definitions read as under:
3 - Interpretation clause. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:
"Document" - 'Document'` means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
"Evidence" - 'Evidence' 'means' and includes--(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
Such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court];
such documents are called documentary evidence.
Section 3 EA states that the expression 'electronic record' has the same meaning as attributed to it in the IT Act. Section 2(t) of the IT Act defines
'electronic record' to mean:
(t) ``electronic record'` means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
The word 'data' has been defined in Section 2(o) IT Act to mean:
(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer
A collective reading of the above definitions shows that an electronic record is not confined to data alone but it also means the record or data generated received or sent in an electronic form. The word 'data' includes 'a representation of information, knowledge and facts' which is either intended to be processed, is being processed 'or has been processed in a computer system or computer network'' or stored initially in the memory of computer.' The word 'data' therefore includes not only the active memory of the computer, in this case the hard disc, but even the subcutaneous memory. There are six levels of memory in the hard discs and therefore information which was written and then rewritten upon more than 5 times could still be retrieved from the subcutaneous memory of the hard disc. Even if there is a doubt whether that entire information can be reconstructed, certainly the information to the effect that the memory in the hard disc has been written and rewritten upon for over six times would be available. It is possible to analyze a hard disc with the help of a software programme; to find out on what date the information was first written with the exact time of such change. It is possible to retrieve such information in respect of each of the occasions when such information is removed and reinserted or changed on the hard disc. While there can be no doubt that a hard disc is an electronic device used for storing information, once a blank hard disc is written upon it is subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any purpose will contain some information and will therefore be an electronic record. This is of course peculiar to electronic devices like hard discs. Therefore, when Section 65B EA talks of an electronic record produced by a computer (referred to as the computer output) it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. There are two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software programme. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image. The conclusions that can be drawn from the above discussion are:
(a) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer;
(b) Once the hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose;
(c) Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not at present contain any accessible information
(d) In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.
(e) Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, there can be no doubt that an electronic record is a document.
(f) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics.

The right to grant recognition to the training colleges under National Council for Teacher Education Act, 1995

2010-11-23T14:20:00.000-08:00

The Supreme Court of India, on 23-11-2010, in the matter of Bhagwan Budha Prathmik Technical Training College Nirmali Versus Union of India & Others held that in 17 August 1995 the National Council for Education Teachers education bill 93 was passed. Under the act, the right to grant approval to the training colleges is now given to the National Council for Teachers Education. Thus in the aforesaid circumstances the concerned college has to make an application for permission before the NationalCouncil for Teachers Education. The matter pertaining to approval/recognition is not within the power of the State Govt. But the college can be considered to be recognized one with effect from 1987-89 to 1995, because the approval ought to have been granted in view of the inspection report." under Section 14 of the Act, the institute which is giving teachers training has to apply for its recognition to NCTE within six months of the Act coming into force. The students of an institution recognized by NCTE alone can appear for the qualifying examination as per Section 16 of the Act. It becomes clear that after the application of the National teachers training council (N.C.T.E.) Act 1993, the right to grant recognition to the training colleges is the authority of the regional council, National council for Teacher education and not of the State Government or of any other authority. Section 16 (b) lays down thereafter that after the appointed day no examining body shall hold examination for a course or training conducted by an institution, unless it has obtained recognition from the Regional Committee of NCTE. Sections 14 (1) and 16 read as follows:- "14. Recognition of institutions offering course or training in teacher education - (1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations: Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee." "16. Affiliating body to grant affiliation after recognition of permission by the Council - Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day,- (a)grant affiliation, whether provisional or otherwise, to any institution; or (b)hold examination, whether provisional or otherwise, for a course or training conducted by a recognized institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under section 14 or permission for a course or training under section 15." Appointed day' has been defined under Section 2 (a) of the Act as the date of establishment of National Council for Teacher Education. Section 3 (1) of the Act lays down that with effect from a date as the Central Government may by notification in the official gazette appoint, there shall be established a council to be called the National Council for Teacher Education. Prior to 1995, the NCTE had existed since about 1973 as a government advisory body (and not as a separate institution) to look after development and progress of "teacher education". The NCTE was then only a department of the National Council of Educational Research and Training. The National Council for Teacher Education, in its previous status since 1973, was an advisory body for the Central and State Governments on all matters pertaining to teacher education, with its Secretariat in the Department of Teacher Education of the National Council of Educational Research and Training (NCERT). Despite its commendable work in the academic fields, it could not perform essential regulatory functions, to ensure maintenance of standards in teacher education and preventing proliferation of substandard teacher education institutions. The National Policy on Education (NPE) 1986, and the Programme of Action thereunder, envisaged a National Council for Teacher Education with statutory status and necessary resources as a first step for overhauling the system of teacher education. The NCTE Act came into force on 1.7.1995, vide S.O. 620(E), dated 1.7.1995, published in the Gazettee of India, Ext. Pt. II, S.3(ii), dated 10.7.1995 by exercising the power under Section 1 (3) of the NCTE Act. The National Council for Teacher Education as a statutory body came into existence in pursuance of the NCTE Act, 1993 (No. 73 of 1993) on 17.8.1995.

An non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly.

2010-11-23T13:27:00.000-08:00

The Supreme Court of India on 23-11-2010, in the matter of Gian Singh v. State of Punjab & Another held that the Court must maintain the judicial restrain and should not do indirectly such thing which can not be done directly.
While deciding the matter the Apex Court observed the three decisions of this Court, all by two Judge Benches.They are B.S.Joshi vs. State of Haryana (2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of Investigation and Another (2008) 9 SCC 677; and Manoj Sharma vs. State and Others (2008) 16 SCC 1. In these decisions, this Court has indirectly permitted compounding of non-compoundable offences. Section 320, Cr.P.C. mentions certain offences as compoundable, certain other offences as compoundable with the permission of the Court, and the other offences as non-compoundable vide Section 320(7). Section 420, IPC is a compoundable offence with permission of the Court in view of Section 320, Cr.P.C. but Section 120B IPC is a non-compoundable offence. Section 120B(criminal conspiracy) is a separate offence and since it is a non-compoundable offence, the court cannot permit it to be compounded. The Court cannot amend the statute and must maintain judicial restraint in this connection. The Courts should not try to take over the function of the Parliament or executive. It is the legislature alone which can amend Section 320 Cr.P.C. The Court opined that something which cannot be done directly cannot be done indirectly. An non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly.

STATES AMENDMENT OF THE SECTION 125(1) OF THE CRIMINAL PROCEDURE CODE – Constitutional validity

2010-11-23T12:55:00.000-08:00

The Hon’ble Supreme Court of India under Criminal Appellate Jurisdiction between Manoj Yadav and Pushpa @ Kiran Yadav on 23-11-2010 decided that in the original Code Criminal Procedure of 1973 the maximum maintenance which could be granted by the Magistrate under Section 125 (1) Cr.PC was Rs.500/- per month. Subsequently by the Code Criminal Procedure (Amendment) Act of 2001 enacted by Parliament the words "not exceeding five hundred rupees in the whole" in Section 125(1) were deleted w.e.f. 24.9.2001. In the Statement of Objects to the Act of 2001 it was stated : "The ceiling of rupees five hundred per month for maintenance allowance was prescribed in the year 1955 in Section 488 of the Code of Criminal Procedure, 1898. A ceiling of rupees five hundred was prescribed in Section 125 of the Code Criminal Procedure, 1973 on the lines of Section 488 of the Code Criminal Procedure, 1898 which has since been repealed. In view of the cost of living index continually rising, retention of a maximum ceiling is not justified. If a ceiling is prescribed and retained, it would require periodic revision taking into account the inflation and rise in the cost of living as well as amendment of provisions of the Act from time to time. This would necessarily be time consuming. Accordingly, it is also proposed to amend Section 125 and make consequential changes in Section 127 of the Code Criminal Procedure to remove the ceiling of maintenance allowance." Prior to the 2001 amendment of the Code Criminal Procedure by Parliament many State Legislatures had passed State Amendments of Section 125(1) Code Criminal Procedure enhancing the maximum maintenance which could be granted from Rs.500/- per month to a higher figure. It was felt by those State Legislatures that Rs.500/- per month is not sufficient. Hence these State Amendments were made for the benefit of the women because at that time the 2001 Amendment had not been enacted by Parliament, and there was a maximum limit of Rs.500/- per month in Section 125(1) for grant as maintenance. The States which had made these State Amendments prior to the 2001 Amendment enhancing the maintenance from Rs.500/- per month to a higher figure are the States of Madhya Pradesh, Maharashtra, Rajasthan, Tripura and Uttar Pradesh.
The Apex Court was prima facie of the opinion that in view of the 2001 Amendment to the Code of Criminal Procedure by Parliament, the maximum maintenance prescribed by the above mentioned State Legislatures are no longer valid in view of Article 254(1) of the Constitution, apart from being unconstitutional now as being violative of Articles 14 and 21 of the Constitution.

JURISDICTION OF WAKF TRIBUNAL

2010-11-23T12:50:00.000-08:00

The Supreme Court of India under Civil Appellate Jurisdiction in Civil Appeal No. 5297 of 2004 between Board of Wakf, West Bengal and Anis Fatma Begum & Anr. decided that the jurisdiction of Wakf Tribunal is very wide and the same cannot be taken away by any general law. Apex Court held that all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. The Wakf Act, 1995 is a recent parliamentary statute which has constituted a special Tribunal for deciding disputes relating to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to Wakfs were being filed in the courts in India and they were occupying a lot of time of all the Courts in the country, which resulted in increase in pendency of cases in the Courts. Hence, a special Tribunal has been constituted for deciding such matters. Section 83 (1) of the Wakf Act, 1995 states,

"83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification if the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each or such Tribunals."

Section 84 of the Act states,

"84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision - Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute".

Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word `Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. Under Section 83 (5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property. The party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates. The proviso to Section 83 (9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court. It is well-settled that when there is a special law providing for a special forum, then recourse cannot be taken to the general law vide Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn. 2004, pp 133- 134). The Court based its observation on the principle found in the matter of Chief Engineer, Hydel Project & Ors vs. Ravinder Nath & Ors.(2008) 2 SCC 350, where the Apex Court held that when the matter fell in the area covered by the Industrial Disputes Act, the Civil Court would have no jurisdiction. In the above decision the Court has referred to several earlier decisions on this point.

Contempt of Court v. Freedom of Speech

2010-11-11T10:49:00.000-08:00

In ORIGINAL APPELLATE JURISDICTION ,CONTEMPT PETITION (CRL.) NO.10 OF 2009 IN INTERLOCUTORY APPLICATION NOS.1324, 1474, 2134 OF 2007 IN WRIT PETITION (C) NO.202 OF 1995, between Amicus Curiae and Prashant Bhushan & Anr.; Amicus Curiae, Mr. Harish N. Salve, learned Senior Advocate, drew the attention of the Hon’ble Supreme Court of India towards certain statements made by Shri Prashant Bhushan, Senior Advocate, which was reported in Tehelka magazine, of which Shri Tarun J. Tejpal,was the Editor-in-Chief. The learned Amicus Curiae also drew the attention of the Court to certain statements which had been made by Shri Prashant Bhushan, Senior Advocate, in an interview given to Ms. Shoma Chaudhury, wherein various statements were made alleging corruption in the judiciary and, in particular, the higher judiciary, without any material in support thereof. In the interview Shri Prasant Bhusan went on to say that although he did not have any proof for his allegations, half of the last 16 Chief Justices were corrupt. He also made a serious imputation against the Hon'ble the Chief Justice of India, Justice S.H. Kapadia, as His Lordship then was, alleging misdemeanor with regard to the hearing of a matter involving a Company known as Sterlite, in which Justice Kapadia had certain shares. The Hon’ble Supreme Court requested Mr. Harish N.Salve, learned Senior Advocate, to assist the Court as Amicus Curiae in the matter whether on the basis of the prayers made in the application, this Court should take suo motu cognizance of the alleged contempt said to have been committed by the Senior Advocate and Chief-Editor in the application which was numbered as Contempt Petition (Crl.) No.10 of 2009. The matter was, thereafter, heard at length by the Apex Court on the question of maintainability of the contempt proceedings and also on the question as to whether this Court should take suo motu cognizance and proceed accordingly. Mr. Ram Jethmalani, learned Senior Advocate appearing for Mr. Prashant Bhushan, Advocate, submitted that the contempt proceeding was not maintainable not only on account of the provisions of Section 15 of the Contempt of Courts Act, 1971, but also in view of the 1975 Supreme Court Rules regarding proceedings for Contempt. He submitted that the report published in Issue No.35 of Volume 6 of Tehelka magazine dated 5th September, 2009, which comprised the contents of the interview given by Mr. Prashant Bhushan to the Tehelka magazine, had been placed before the Court on 6th November, 2009 and upon hearing the counsel present, the Court directed the matter to be taken on board and directed notice to issue. It was argued by Mr. Jethmalani that in relation to matters involving contempt of the Supreme Court, Rules have been framed by the Supreme Court itself under powers vested in it under Section 23 of the Contempt of Courts Act, 1971, read with Article 145 of the Constitution of India. The said Rules described as the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, laid down the procedure to be followed in matters relating to taking of cognizance of criminal contempt of the Supreme Court under Section 15 of the Contempt of Courts Act, 1971. He further submitted that Rule 3 of the aforesaid Rules enables the Court to take action in a case of contempt other than the contempt committed in the face of the Court and provides as follows : "3. In case of contempt other than the contempt referred to in rule 2, the Court may take action: - (a) suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General." He also submitted that the order passed on 6th November, 2009 was not on suo motu cognizance taken by this Court, nor on a petition made by the Attorney General for India or Solicitor General of India and must, therefore, have been made under Rule 3(c) on a petition made by Mr. Harish N. Salve, Senior Advocate, in which case, the same ought not to have been entertained without the consent in writing of the Attorney General or Solicitor General. Mr. Jethmalani submitted that in that view of the matter, the contempt proceedings were without jurisdiction and could not be proceeded with. Mr. Jethmalani also urged that even Rule 6 of the aforesaid Rules had not been followed, as notices have not been issued to the respondents in Form 1, as prescribed and the proceedings were, therefore, liable to be discontinued on such ground as well.In support of his aforesaid submissions, Mr. Jethmalani referred to and relied upon the case of P.N. Duda vs. P. Shiv Shanker & Ors. [(1988) 3 SCC 167], in which the provisions of Section 15(1)(a) and (b) of the Contempt of Courts Act, 1971, read with Explanation (a) and Rule 3(a), (b) and (c) of the Contempt of Supreme Court Rules, 1975, had been considered in paragraphs 53 and 54 of the judgment. It was pointed out that a direction had been given by this Court that if any information was lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. On the other hand, such a petition was required to be placed before the Chief Justice for orders in Chambers and the Chief Justice could decide, either by himself or in consultation with the other judges of the Court, whether to take any cognizance of the information.Mr. Jethmalani also referred the case of Bal Thackrey vs. Harish Pimpalkhute & Ors. [(2005) 1 SCC 254], wherein in the absence of the consent of the Advocate General in respect of a contempt petition filed by a private party under Section 15 of the Contempt of Courts Act, without a prayer for taking suo motu action of contempt, was held to be not maintainable. Mr. Jethmalani urged that the power vested in the High Courts and the Supreme Court under the Contempt of Courts Act, 1971, was a regulatory measure imposing a fetter on a citizen's fundamental right to freedom of speech and would have to be invoked and exercised with utmost caution so as not to infringe upon such fundamental right. The Hon’ble Apex Court while rejecting the above said contents raised by Shri Jethmalani stated that Shri Prashant Bhushan, Senior Advocate, in an interview given to the Tehelka magazine deliberately aimed at tarnishing the image of the judiciary as a whole, and, in particular, a sitting Judge of the Supreme Court, in the eyes of the general public without any foundation or basis therefore. By publishing the said interview, the Chief Editor was also responsible for lowering the dignity of this Court in the eyes of all stake holders in the justice delivery system. Prima facie, a case for issuance of notice having been made out, the Hon'ble Chief Justice of India directed issuance of notice to the Respondents to show cause in regard to the allegations contained in the application filed by the learned Amicus Curiae. It was further stated by the Apex Court that the error committed by the Registry of the Supreme Court in placing the matter on the judicial side instead of placing the same before the Hon'ble Chief Justice of India on the administrative side, is an administrative lapse which does not reduce the gravity of the allegations.

approaching the court with clean hand- extent of principle

2010-11-09T22:27:00.000-08:00

In the matter of Ramjas Foundatiob and other v. Union of India and others decided on 9-11-2009, Hon'ble Supreme Court of India while deciding on the principle- 'that a person should approach the court with clean hand', held that:
"The principle that a person who does not come to the Court with clean
hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. In Dalglish v.Jarvie 2 Mac. & G. 231, 238, Lord Langdale and Rolfe B.observed: “It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward. In Castelli v. Cook (1849) 7 Hare, 89, 94 Wigram V.C. stated the rule in the following words: “A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.” In Republic of Peru v. Dreyfus Brothers & Company 55 L.T. 802, 803, Kay J. held as under:
“I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never
hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith in the Court when ex parte applications are made.”
The same rule was restated by Scrutton L., J in R. v. Kensington Income Tax Commissioner (1917) 1 K.B. 486. The facts of that case were that in April, 1916, the General Commissioners for the Purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon the applicant for the year ending April 5, 1913, in respect of profits arising from foreign possessions. On May 16, 1916, the applicant obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from proceeding upon the assessment upon the ground that the applicant was not a subject of the
King nor resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year. In the affidavit on which the rule was obtained the applicant stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom; that during the year ending April 5, 1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days; that she spent about twenty of these days in London at her brother’s house, 213,
King’s Road, Chelsea, generally in company with other guests of her brother; that she was also in the United Kingdom during the year ending April 5, 1914, for temporary purposes on visits, and spent part of the time at 213, King’s Road aforesaid; and that since the month of November, 1914, she had not been in the United Kingdom. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicant in reply, it appeared that in February, 1909, a leasehold house, 213, King’s Road,Chelsea, had been taken in the name of the applicant’s brother. The purchase-money for the lease of the house and the furniture amounted to 4000l., and this was paid by the applicant out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicant. The Divisional Court without
dealing with the merits of the case discharged the rule on the ground that the
applicant had suppressed or misrepresented the facts material to her application. The Divisional Court observed that the Court, for its own protection is entitled to say “we refuse this writ of prohibition without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us”. On appeal, Lord Cozens-Hardy M.R. and Warrington L.J. approved the view taken by the Divisional Court. Scrutton L.,J. who agreed that the appeal should be dismissed observed:“and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts – facts, not law. He must not misstate the law if he can help it – the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.” The above noted rules have been applied by this Court in large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands –Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel v. State of A.P. (1983) 4 SCC 575, G. Narayanaswamy Reddy v. Government of Karnataka (1991) 3 SCC 261, S.P. Chengalvaraya Naidu v. Jagannath
(1994) 1 SCC 1, A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221, Prestige Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. SAIL (2008) 12 SCC 481, G. Jayashree v. Bhagwandas S. Patel (2009) 3 SCC 141 and Dalip Singh v. State of U.P. (2010) 2 SCC 114. In the last mentioned judgment, the Court lamented on the increase in the number of cases in which the parties have tried to misuse the process of Court by making false and/or misleading statements or by suppressing the relevant facts or by trying to mislead the Court in passing order in their favour and observed: “For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used
to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means
for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

Indigent Person

2009-05-26T10:47:00.000-07:00

According to Or 33 of CPC, 1908 , indigent person is that person who is not able to have sufficient legal means to raise the money in order to pay the court fees.....
Here are many case-laws which deals with Indigent person andall the provision related with same
Lady Amphthil Nurses Instn. And Ors. vs Cc And Ors. on 23 January, 2001
Union Bank Of India vs Khader International Construction & Ors on 8 May, 2001
Rabinder Singh vs M. Maheshwar Rao And Anr. [Alongwith Civil ... on 6 August, 1997
M.L. Balaram vs Canara Bank, Overseas Branch, Bangalore And ... on 22 June, 2001
Dilip Kumar Modak vs State Of Tripura And Anr. on 4 July, 2001
Sanjeevayya Nagar Co-Operative House ... vs S. Malla Reddy Alias Parvathalu And Ors. on 29 August, 2005
Parvati vs Ram Chand on 4 September, 1985
Dev vs Chief Secretary, Government Of Kerala on 11 July, 2003
Commissioner Of Wealth-Tax, Bombay City Ii vs Trustees Of The J.P. Pardiwala Charity Trust on 16 February, 1965
Dilshada Bano vs Gh. Nabi on 29 July, 1987
S.Thilagavathi: vs The Presiding Officer on 12 May, 2009
Vedanta Jit Singh Walia vs Shri Subhash Jit Singh Walia & Anr on 21 April, 2009
Krishan Lal vs M/S. Meet Finance on 21 April, 2009
R.Bharathi vs The Secretary To Government on 3 April, 2009
Surjit Singh vs Surinder Kaur Alias Saranjit Kaur And Another on 1 April, 2009
Piara vs M/S Amar Nath Sat Pal Commission Agent on 18 March, 2009
Narain Singh vs Smt. Phulli And Others on 16 March, 2009
Mushtaq Ahmed Mir vs Akash Amin Bhat on 12 March, 2009
Usmatech Textile Engineers Pvt,Ltd vs The Branch Manager on 6 March, 2009
Unknown vs Unknown on 6 March, 2009

Arbitration and conciliation

2009-05-26T10:24:00.000-07:00

To get the information about the Bare Act click here . for getting other information regarding Arbitration like reconciliation an any other such information please click here . This site also contain appropriate informaton regarding Barmuda International arbitration and Conciliation Act Click here

Moot Court e-Help

2009-05-25T10:03:00.000-07:00

LLB is a professional course, as most universities give practical legal training while teaching the legal theory. Undergraduate courses of law are basically designed to give students the knowledge of the subject. The course includes seminars, tutorial work, moot courts and practical training programmes.
To become a good advocate you need yourself equipped with the good presentation skills. To improve your skills, to become a good advocate, practice is required in presenting your case and arguing which is a big challenge for a developing student at the college level. These skills can be improved by taking part in the Moot Courts at the college level so that your presentation skills and talents in argument shall be screened and you will be in notice of your level in the competition around you. You will then seek an improvement of your position in the competition. The student of law cannot just stick only to the theoretical teaching and hence law institutions host Moot Court Competitions.
The Moot Court is basically an activity that is followed for the betterment of the presentation and argument skills of the students. It helps students equip themselves to the standards of the society. To participate you should have the confidence in you and you should be a generalist i.e. you should analyze the facts of the case in the general point of view in regard to the subject of the case and learn to apply the law to the facts of the case. You should be a specialist in Law dealing that particular subject, and be thorough with the latest case law and interpretation by the Supreme Court and the High Courts to get a better grip over the case or the position of the case.
The Moot court Hall or Room is like a practical room for a student to get accustomed to the atmosphere of the Courts as well as improve his skills in law and advocacy of law. In a Moot court a hypothetical case is given to the students and are allowed to argue the given case. Moot Court helps the students of law in many ways since it is a sort of practical legal training, which helps to build analytical reasoning, legal aptitude, team building skills and above all make them responsive.
How to go about a Moot Court?
The facts of the case need to be jotted (made a note of) down in points.
The words used should be simple and easy understandable. Take the best care of the language used.
Need to have good communication skills to present the case with confidence.
You should give the introduction of the parties with their description and details.
Reasons of the problems and why?
Give a brief of the agreed party.
You should accept your mistakes made at the argument and show your acceptance of the mistakes by pleading the Judge to pardon. You should apologize and correct your mistakes.
Drafting skills are also an important aspect of the Moot Court. You need to present the case with the best language possible and the submissions made by you must be good enough to impress the Moot Court Judge.
Spontaneity should be the first objective while presenting or arguing.
The case mostly will be well balanced and is prepared in such a manner that no side (Applicant/Respondent) is strong. Therefore, a lot of research work is to be done to get better case laws and material that supports your case.
Learning from mistakes.
The students must learn from the mistakes that they make in the moot court and see to it that the mistakes are not to be repeated at any time in future. Of course the more mistakes you make the more you will learn.
Mistakes are meant to learn new things.
Should be well equipped with in law as well as advocacy skills.
The students should be well equipped with the law before taking up the case and your advocacy skills should be good enough to tackle the case and also impress the judge. Books to be referred
Practical experience matters for Professional Excellence and Survival.
The more you are exposed to the practicality of the advocacy skills the better you perform to the standards of the court. You need to participate in as many moot courts as possible to get that very practical experience in dealing any kind of case.
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Complete result-International Court Of Justice

2009-05-24T11:19:00.000-07:00

A place or getting complete knowledge about International Court Of Justic. Find out your variours links for getting your full result about the concern topic
www.icj-cij.org
www.icj-cij.org/homepage/index.php
en.wikipedia.org/wiki/International_Court_of_Justice
www.lawschool.cornell.edu/library/cijwww
library.lawschool.cornell.edu/WhatWeDo/ResearchGuides/ICJ.cfm
www.icj.org
topics.nytimes.com/topics/reference/timestopics/organizations/i/international_court_of_justice/index.html
www.globalpolicy.org/intljustice/icj/wdctindx.htm
www.worldlii.org/int/cases/ICJ/

international court of justice statute
united nations
trusteeship council
international court of justice cases

Fun Time

2009-05-24T11:13:00.000-07:00

now have some fun time along with the knowledge of law......... just for refreshment

LAW FIRMS

2008-10-30T07:44:00.000-07:00

LAW FIRMS

Patent Searching;Document Delivery;Patent Plaques;

2008-10-27T02:41:00.000-07:00

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2008-10-27T02:39:00.000-07:00

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2008-10-27T02:36:00.000-07:00

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2008-10-27T02:34:00.000-07:00

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2008-10-10T05:12:00.001-07:00

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REAL ESTATE INVESTMENT FUNDS ALLOWED IN INDIA

SEBI in India has allowed domestic asset managers to launch funds investing directly in real estate. As per SEBI, these funds shall be close-ended with units listed on stock exchanges, and the net asset values of the funds must be made public every day.

Such real estate investment funds should invest at least 35 percent of their funds directly in real estate assets and the rest in mortgage-backed securities and instruments of firms engaged in the sector. They can invest up to 25 percent of their corpus in other securities, according to the statement. "Taken together, investments in real estate assets, real estate-related securities... shall not be less than 75 percent of the net assets of the scheme," SEBI said. The asset managers should get the assets valued every 90 days.

More information: Hedge Funds in India

IT COMPANIES MOVING TO SMALLER CITIES IN INDIA

Indian IT companies are relocating to smaller cities, as the unabated rise of the rupee against the US dollar continues to eat away at their profits. More and more IT companies are relocating to tier-II and tier-III cities such as Chandigarh, Lucknow, Kochi, Varanasi, Mohali, Jamshedpur, Allahabad, Dehradun and Mysore to lower operational costs by about 15 per cent.

The trend is particularly noticeable among BPO units based in Gurgaon, Bangalore, Hyderabad, Delhi, Noida, Chennai and Kolkata according to a recent report.

SEBI TAKES ACTION AGAINST COMPANIES FOR NONE-COMPLIANCE

Indian market regulator Securities and Exchange Board of India (SEBI) initiated proceedings against 20 listed companies, including five public sector entities, for violating corporate governance regulations.

The regulator has started adjudication proceedings against the companies on the basis of quarterly reports received from stock exchanges regarding compliance with Clause 49 of the Listing Agreement that deals with corporate governance, a SEBI release said. SEBI began proceedings against the five public sector companies for not appointing adequate number of independent directors on their board.

As per the Clause 49, at least one-third of the board of a listed company should comprise of independent directors if the chairman is a non-executive director. Otherwise, half of the board should comprise of independent directors. As far as private sector firms are concerned, proceedings have been initiated against three companies for non-compliance.

India Stock Exchanges Opened to Foreign Investment

The Indian government on opened up the country's stock exchanges for foreign investment, with a cap of 49 per cent.

IRDA to permit insurance company to set up of liaison offices in India

The Insurance Regulatory and Development Authority (IRDA) has been authorized to permit insurance companies registered outside India to set up liaison offices in the country.

The existing procedure for grant of permission by RBI for opening of an office by an insurance company registered outside India has been revised in consultation with the Government of India and it has been decided that hence forth such permission would be granted by IRDA.

In this context a “Liaison Office” would mean a place of business to act as a channel of communication between the Principal place of business or Head Office by whatever name called and entities in India but which does not undertake any commercial/ trading/ industrial activity, directly or indirectly, and maintains itself out of inward remittances received from abroad through normal banking channel.

Persons desirous of opening liaison offices shall apply to the Insurance Regulatory and Development Authority. The applicant company shall be required to comply with the terms and conditions of the General Permission granted by RBI under the Foreign Exchange Management Act, 1999 and any other law in force.

The permission for opening of liaison office in India by an insurance company registered outside India are subject to the terms and conditions as may be additionally stipulated by the Authority from time to time.

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India Tightens Data Protection Law

The Indian government this week approved amendments to the Information Technology Act (2000) aimed at making life more difficult for IT criminals. Under the new law, fines of over US$1 million can be imposed on companies and individuals who fail to stop data theft and the leakage of personal information. The amendments also aim to combat phishing (e-mail fraud), identity theft, video voyeurism and other types of computer crime. The National Association of Software and Service Companies (Nasscom) and leading IT companies are pleased with the amendments. According to an expert "India continues to be comparatively more secure. A research conducted in 2005 found that there were more security breaches in the UK and the US than in India."

Some Foreign Multinational Corporations found in violation of Foreign Exchange laws of India

Some US Multinational Corporation Doing Business in India were among 11 multinational corporations, whose Indian operations were found guilty of violating foreign exchange regulation by an Appellate Tribunal in India.

In its ruling earlier last week, Appellate Tribunal for Foreign Exchange also confirmed a penalty of Rs 361.20 million imposed by Enforcement Directorate (ED) on them, official sources said.

Terming this as an important case for the Directorate of Enforcement, they said violation by the Indian arms of the foreign companies related to payment of salaries to their expatriate employees working here in foreign currency. This was done without the permission of the Reserve Bank of India.

India Cyber law require compliance by companies

The India Information Technology Act was passed six years ago. However most of the companies are still unaware of the strict provisions of the law.

As a recent case of bazee.com showed - the CEO of the company was held responsible for, and arrested, for explicit content put up for auction on his portal - and are thus exposed to serious liabilities.

The cyber law mandates all companies to have an information technology security policy. This documents the architecture of the network, the roles and responsibility of employees, security parameters and authorization required for data access, among other things. Other compliances that are required include relate to retention and authentication of electronic records and security of data.

Only a handful of companies have such a policy in place. It is high time that companies comply with cyber laws. Ignorance of law is no excuse.

All the Indian companies and all foreign companies doing business in India, either directly or indirectly, should comply with this law.

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Future News

A new law to allow "Limited Liability Partnership" (LLP) in India is expected to be introduced in the monsoon session of the Parliament of India.

The Bill to replace the existing Indian company law is expected would be introduced in the winter session of the Parliament.

Doing Business in India

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Procedure for Forming a Company in India

Starting a Business in India

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Recovering Money in the USA

In USA money can be recovered by litigation or arbitration depending upon the type of agreement between the parties. The legal system in USA is highly specialized. Watch this space for more information.

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No Unsolicited Calls to Mobile Phones in India

The Delhi High Court restrained telemarketers from making unsolicited calls to mobile phone users, irrespective of the fact whether or not they are registered with the DND facility.

60 lakh register Nearly 60 lakh mobile subscribers have enrolled with the National-Do-Not-Call (NDNC) registry within just 10 days of its launch to avoid getting unsolicited sales calls from telemarketers.

DO NOT CALL LIST IN INDIA FOR TELEMARKETERS

India's telecom regulator Telecom Regulatory Authority of India (TRAI) unveiled the "Telecom Unsolicited Commercial Communications Regulations 2007", putting in place a mechanism to curb unwanted telemarketing calls.

The new directive allows subscribers to list their landline and mobile numbers under the National Do Not Call (NDNC) database and opt out of receiving any Unsolicited Commercial Communications (UCC), including SMS (short messaging service).

Latest legal news & info

2008-10-01T01:10:00.000-07:00

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Legal News

2008-10-01T01:09:00.001-07:00

Latest Legal News - 'Domestic Violence Act'

2008-10-01T01:08:00.001-07:00

Domestic violence Act: No retrospective effect - Times of India
Domestic violence Act : No retrospective effect Times of India, India - 17 Sep 2008 PANAJI: If domestic violence has occurred before the Domestic Violence Act was notified, then any such incident cannot come under purview of the Act. ... 50 cases of women exploitation filed MorungExpress all 2 news articles
Publ.Date : Wed, 17 Sep 2008 20:14:20 GMT

Violent crime up 47% since Labour became Govt - Scoop.co.nz (press release)
Violent crime up 47% since Labour became Govt Scoop.co.nz (press release), New Zealand - 4 hours ago "After promising at the last election that they would change the Domestic Violence Act , they this week finally fronted up with a bill - after Parliament had ...
Publ.Date : Wed, 01 Oct 2008 01:42:53 GMT

'Add misuse clause in sexual harassment bill' - Times of India
'Add misuse clause in sexual harassment bill' Times of India, India - 29 Sep 2008 NEW DELHI: With complaints pouring in against pro-women legislation like the Domestic Violence Act and more recently Section 498A, the law ministry has ...
Publ.Date : Mon, 29 Sep 2008 23:15:12 GMT

Landhoni rues multiplying number of widows in state - KanglaOnline
Landhoni rues multiplying number of widows in state KanglaOnline, India - 28 Sep 2008 Landhoni was speaking as the president at a one-day consultative meeting on effective implementation of Domestic Violence Act , 2005 held at Wangbal ...
Publ.Date : Mon, 29 Sep 2008 03:14:09 GMT

National meet of Save Indian Family activists - Merinews
National meet of Save Indian Family activists Merinews, India - 27 Sep 2008 Then Section 498A, Indian Penal Code (45 of 1860) in 1983 and the very recent Protection of Women from Domestic Violence Act , 2005, was passed in 2006. ...
Publ.Date : Sat, 27 Sep 2008 11:01:10 GMT

Govâ€™t Making â€œMessâ€ Of Laws - The Bahama Journal
Govâ€™t Making â€œMessâ€ Of Laws The Bahama Journal, Bahamas - 25 Sep 2008 The government has proposed amendments to the Sexual Offenses and Domestic Violence Act that would give judges discretionary power to impose a maximum ...
Publ.Date : Fri, 26 Sep 2008 04:06:08 GMT

DOWSU Personnel Asked To Be Professional - Ghanaian Times
DOWSU Personnel Asked To Be Professional Ghanaian Times, Ghana - 21 hours ago The two-day workshop on the theme: " Domestic Violence Act and its implementation", seeks to equip the personnel with new skills in tackling issues of ...
Publ.Date : Tue, 30 Sep 2008 08:57:15 GMT

Kanimozhi makes a point - Sify
Sify Kanimozhi makes a point Sify, India - 28 Sep 2008 But I wish to remind you that it is an offence under the Domestic Violence Act . I wish this scene was not there in the film or else have a card inserted in ... Closer to reality, please! Express Buzz all 2 news articles
Publ.Date : Mon, 29 Sep 2008 06:02:49 GMT

Abuse bill good in theory, but they better work on it - The Trentonian
Abuse bill good in theory, but they better work on it The Trentonian, NJ - 27 Sep 2008 But should "impairing communication" really become the 15th form of domestic violence under the Prevention of Domestic Violence Act ? ... Lawmakers: Domestic abuse bill "cowardly" The Trentonian all 4 news articles
Publ.Date : Sun, 28 Sep 2008 04:30:44 GMT

Protection of Women from Domestic Violence Act, 2005. (Bare Act - Full Text)
Domestic Violence Act - Overview

Law School Buzz, Legal News, Latest from Law Schools

2008-10-01T01:07:00.001-07:00

April 18, 2008: GNLU students initiative, International Law Journal- Invitation for contributions (more)

January 20, 2008: Louis M. Brown Client Counselling & Interviewing Competition - KLE Society's Law College: Invitation for National Rounds (more)

December 07, 2007: GLC, Mumbai announces the D.M. Harish Memorial Government Law College International Moot Court Competition, Feb. 8-10, 2008 (more)

December 07, 2007: HNLU in association with Competition Commission of India organises the 2nd Justice M Hidayatullah Memorial Moot Court Competition to be held between 25 Jan and Jan, 2008 (more)

August 14, 2007: National Law School of India Review - Volume 20 - invitation for submissions by the Student Advocate Committee of NLSIU (more)

August 11, 2007: IJCL 2008 - invitation for submissions (more)

July 17 2007: GNLU inaugurates Legal Service Clinic (more)

July 17 2007: The 7th Henry Dunant Memorial Moot Court Competition (more)

April 4 2007: "The Future of Human Rights" - a book-conversation with Professor Upendra Baxi at Christ College of Law (more)

April 4 2007: Student Bar Review - Nani Phalkivala Taxation Law Essay Competition - send in your entries by May 31 (more)

December 30: National Client Counseling Competition 2006-2007, NLSIU Bangalore (more)

December 26: BCIT Moot Court Competition 2006, NLIU Bhopal (more)

December 14: HNLU organises the first "Justice Hidayatullah Memorial National Moot Court Competition" on 26th, 27th and 28th, Jan 2007 More

November 9: NLSIU's Le'Gala 2006 Inter-Collegiate Fest More

November 3: Penn Law's Scholarship for Indian LL.M Aspirants Read details here

October 25: Income Tax Appellate Tribunal Moot: Details of the GLC moot here!

October 25: 8th D.M. Harish Memorial Moot: Read details here!

October 25: Grading of IPOs: Is it worth the trouble? - By Tomu Francis (Read the article)

October 6: Seervai Essay Competition - Ananth Padmanabhan's winning entry! (Read the essay)

September 30: Lotus LPO: Recruitments open (more)

August 31: NALSAR Hosts the Critical Legal Conference 2006 (more)

August 24: The British Council, India invites you to stay uptodate on the latest legal news and developments in India and the UK. (Learn More)

August 24: The International Museum of Women (IMOW) invites you to be a part of 'Imagining Ourselves' an online global exhibit. (Learn More)

August 3: Seminar on Mergers and Acquisitions: A seminar organised by Manupatra. (Learn more)

July 31: Indian Journal of Constitutional Law (IJCL) - An initiative of the NALSAR Constitutional Law Society. (Learn more)

July 24: Mumbai college students to wear white on July 26th (More)

July 24: Why McKinsey hired from National Law School - sify.com (Read the article)

June 21: Hemant Krishna V. of NUJS, Kolkata writes on the beginning of the mooting season in his college (Read the article)

June 8: Read the SZABIST Law Review Online! (more)

June 8: A Response to the India Today Rankings from some NUJS Alumni (more)

June 6: LST's official response to the India Today rankings. (more)

May 19: The Clifford Chance global magazine talks on the interest of British Law Firms to be present in the Indian market. (read the article - jpg 151 kb)

May 3: The Economic Times reports on how this year, law graduates from NLSIU have got record high salaries up to 9 lakhs per annum. (read the article)

April 28: Law and [Im]Possibilities of Democratic Social Transformation - a South Asia Round Table on Law, State and Contemporary Social Movements - April 30 - May 1, 2006 at NLSIU, Bangalore (view poster)

April 13: Proffesor Upendra Baxi joins Judges Panel for Lawstudent.in and SBR National Essay Competition! (more)

April 10: Yes, you WILL be affected! The national law schools will be affected by the new reservation policy next year - (NDTV report)

Apr 06: It's a moot, Mr. Spaceman - Sachin's account of the Manfred Lachs Space Law Moot in March at NLSIU Bangalore (Read)

Apr 03, 2006: Justice Michael Kirby of the Australian High Court, and Montek Ahluwalia, join the panel of luminaries associated with the SBR and Lawstudent.in National Essay Competition! (more)

Mar 27, 2006: Pakistan to implement the NLS model: five National Law Universities to be set up, five-year integrated programme to be introduced! (more)

Mar 18, 2006: NUJS students have recently launched 'Writers' Block', a college newsletter. See the February cover page!

Mar 17, 2006: The NLSIU team has won the National Client Counselling Competition, 2006. (more)

Mar 14, 2006: The 1st NLIU Justice R. K. Tankha Memorial Natural Resources Law Moot Court Competition will be organised at NLIU between March 17-19, 2006. (more)

Mar 08, 2006: GLC gets the better of NLSIU at Amity Moot. (more)

MAR 06, 2006: Student Bar Review. (more)

MAR 06, 2006: Louis M. Brown International Client Counselling Competition. (more)

MAR 04,2006: JCCL Mumbai Law Tryst on 18th and 19th March. (more)

Feb 22, 2006: Latest happenings at the HNLU campus. (more)

Feb 14, 2006: The 2nd D. M. Harish Memorial International Moot Court Competition was conducted on February 11 and 12, 2006. (more)

Feb 09, 2006: The Langkawi All Asians Debating Championship, 2006. (more)

Feb 07, 2006: The Manfred Lachs Space Law Moot Court Competition Asia Pacific, Bangalore India: March 17 to March 19, 2006. (more)

Jan 22, 2006: The November-December 2005 edition of Quirk is now available to read. (more)

Jan 18, 2006: 5th Amity National Moot Court Competition: March 3 to March 5, 2006. (more)

Jan 18, 2006: Second K. K. Luthra Memorial Moot Court Competition (more)

Jan 16, 2006: Quirk: Call for Submissions Jan-Feb (more)

Jan 8, 2006: NLSIU launches the Indian Journal of Law and Technology. (more)

Jan 7, 2006: Dr. I. P. Massey Joins HNLU as Faculty Member (more)

Jan 5, 2006: Quirk: Call for Submissions (more)

aditional law courses

2008-10-01T01:06:00.001-07:00

Why Additional Courses

Why do I need aditional law courses? Do I need them even if I'm already in law school?

Additional Courses: Diplomas, Seminars and Workshops

What additional courses do various law schools and institutes offer?

Rainmaker

2008-10-01T01:03:00.002-07:00

Rainmaker law firm survey 2008

Studying Further

2008-10-01T01:03:00.001-07:00

LLM

On how an LLM program can help you, and what it takes to obtain a masters' degree after your finish your current course in law.

LLM Programmes

All you need to know about obtaining a masters' degree in law, including college and course information from across the world - Browse LLM options in India, UK and the US!

Scholarships

Money should be the last thing stopping you from making your dreams come true. An exhaustive database of available scholarships.

Special Section on Studying Law in the UK!

Why the UK? Compare the UK and other options? Information and support services to help you realise your dream of studying law in the UK! View course and university information online!

Recognition of Foreign Law Degrees

Wondering how you can practice in India after studying law abroad? Find out all you need to kmow right here!

The Art of Persuasion

2008-10-01T01:01:00.000-07:00

Indian law students take their mooting seriously. This is evident from the fact that students from India have won almost every major international moot court competition (Jessup, Vis, Manfred Lachs, and Stetson) over the last decade. Certainly no mean achievement. Yet, very little is actually written about students’ experiences – their highs and lows, the excitement and frustration, or the strategies and styles they adopted. Most accounts involving successful mooters are known to only a very select few.

This column will be dedicated to a discussion of mooting activity. We will, over the next few months, not only share with you our experiences, but also try and invite other ex-mooters, both from India and abroad, to contribute to, and write for this column.

We begin our first column by addressing a few common apprehensions almost every law student experiences before his first moot, which most often is the intra-university selection moot.

“I don’t want to take part. Mooting is not for me. I’ve never been a good public speaker, have always hated debating and can’t, for the life of me, understand why people spend so much time researching for just 15 minutes of actually arguing!”

Perhaps the single biggest misconception about participating in moot courts is that you have to be extremely eloquent, even aggressively flamboyant while arguing to perform well. In fact, good debaters often make terrible mooters, and the most ordinary speakers end up winning the biggest competitions. The truth is that mooting is for everybody. If mooters from Kyrgyzstan assisted by interpreters can beat teams from Harvard Law School, then you can certainly rest assured that your English language skills have little to do with your becoming a successful mooter! In fact, records show that mooters from non-English speaking countries such as the Philippine, Venezuela and Germany perform much better than countries where English is the native language.

“I did some preliminary research and find this damn problem totally one sided…The applicants have no case, and I am stuck with that side!”

Unfortunate as it is, no moot court problem is completely neutral. Even the most prestigious competitions in the world find drafting a balanced problem an almost impossible task. For instance, the Jessup, in recognition of this fact, drafts the problem in a manner so that two issues are in favour of the Applicant, and the remaining two in favour of the Respondent.

If you do have the weaker side, don’t fret about it. An experienced moot court judge will always take the relative strength of either side into consideration while marking. In fact, it is often strategically smarter to choose the weaker side since it gives you more scope for ingenuity and originality, and is always highly appreciated by good judges. Arguing the weaker side is also a lot more fun. Moot Court Judges often have to adjudge many rounds involving the same facts, and hearing the same contentions again and again can get quite boring. Often, making far-fetched contentions, (points you know will not stand in an actual court of law) can give you that extra edge for being different, and at the very least, ‘wake up’ a bored judge.

So if this is your first time, give it a shot. Very few students have a good time the first time they moot, but it’s an experience worth going through! Luckily for mooters in India, there are plenty of moots to participate in and make your mark. India perhaps has the most number of national level moot competitions in the world. Quite remarkable, especially given that moot court halls are being razed to the ground in Europe and USA (including such proposals in Harvard!), but that is a topic we’ll reserve for some other time!

Tip 34, March 13, 2007

2008-10-01T01:00:00.000-07:00

Once the facts are marked out on the sheet, it’s ideal if you test your memory!

You can put away the fact sheet, take a sheet of paper and write down the facts in chronological order. Hey, but no cheating!

Once the facts are written out, cross check them and make sure that no error has been committed. Preserve this page for further reference...

Once the facts are ready, think along the lines on which the problem is based. The hints, of course have been laid out in the problem. For example, presences of a number, or at least a couple of nations, will depict the problem based on international law. If the problem talks on violation on fundamental rights, it ought to be based on constitutional law. The hints will help to decide your future plan of action.

Mootopia: The Lawstudent.in mooting championship

2008-10-01T00:59:00.000-07:00

View the Mootopia Scoreboard here!

Have you ever stayed up at night wondering - which is the best mooting law school in India? No? Then you're probably sane. If you have, you're probably like a lot of other law students, so don't worry overmuch about it.

Is it still NLSIU, Bangalore or have they been dethroned by swashbuckling NUJS, Kolkata? Has it always been GLC, Mumbai with their vast, expansive coffers of AIRs which could put international cricketers to shame? Is it ILS, Pune with their research facilities? Is it unassuming NALSAR, Hyderabad? Bhopal? Jodhpur?

Tiruvananthapuram?

Who? Who is it?!!

Lose no more sleep. Help is at hand. (This means here. Help is here. We'll help decide. Seriously. Read on...)

Lawstudent.in announces the first competition ever of its kind:

Mootopia: The Lawstudent.in Mooting Championship!

We're watching the top international and national moots and keeping tabs on who's doing well. Based on our scoring mechanism, you will know exactly who wins what and how many times. Have an opinion on this? Feel free to comment on our scoring mechanism: we're waiting for your views before we finalise it! Watch the Leaderboard to see how teams are doing. At the end of the year, we'll be ready to proclaim the Champion of Indian mooting. To view how teams have performed so far, visit our Mootopia Scoreboard!

Right. We announce the best. And then?

And then, a big, fat prize awaits the moot team of the law school that does best. Trust us, we'll make it more than worth your while!

So ladies and gentlemen, grab your reporters. Lawstudent.in brings you Mootopia - The Lawstudent.in Mooting Championship!

Welcome to the Mooting Sectionv

2008-10-01T00:58:00.000-07:00

Mooting is supposed to be a fun, co-curricular activity where students hone their advocacy skills. This is done by actually researching, typing briefs and arguing on a hypothetical problem.

Yeah, right!

To some, it is a religion. For others, it is a way of life. For yet another group of law students, it is a ticket to visit exotic places and people under the garb of academic advancement. Many simply cannot figure out what the big deal is. These people are non-mooters. They are to be reviled, second only to the undead (so speaketh the true mooter).

Moots and mooters come in all shapes and sizes. Let Lawstudent.in help you make some sense of it all. We have reports, tips and write-ups. All the inside information that make the mooters of today, the Senior Advocates of tomorrow.

So look around and keep coming back. Don’t forget to take part in our mooting poll. Also, please feel free to mail us any news or feedback.

Remember, if you’re a law student, mooting is not a matter of life and death.

It’s much more important than just that.

Latest legal news & info

2008-10-01T00:56:00.000-07:00

Cause List

Latest legal news & info

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While permitting any organisation to keep a child or give it in adoption, its credentials are to be minutely scrutinised. It should be ensured that behind the mask of social service or upliftment, an evil design of child trafficking does not lurk. It is the duty of the State Government to ensure a safe roof over an abandoned child. The Government should treat such matters with utmost importance and should keep in mind the following lines, "between the dark and the daylight, when the night begins to lower, comes a pause in the day's occupation, that is known as children's hours." more...

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Plea of Plural Marriage void if First Marriage itself Void

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Dogs will lead while Humans will Testify

VICKY NANJAPPA / IMRAN GOWHAR

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2008-09-22T05:15:00.000-07:00

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2008-09-12T04:21:00.000-07:00

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2008-09-11T23:27:00.000-07:00

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2008-09-11T23:23:00.000-07:00

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2008-09-10T07:25:00.000-07:00

If you cannot find what you are looking for on this website, please contact the Law Commission Communications Team or The Stationery Office http://www.tso.co.uk.
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LAW COMMISSION OF INDIA REPORTS (101 - 169)

2008-09-10T07:13:00.000-07:00

LAW COMMISSION OF INDIA REPORTS (101 - 169)
Report Number
Subject
101
Freedom of speech and expression under article 19 of the Constitution
102
Section 122(1of the code of criminal procedure 1973
103
Unfair terms in contracts
104
The judicial officers protection act 1850
105
Quality control and inspection of consumer goods
106
Motor Vehicles Act,1939
107
Law of Citizenship
108
Promissory Estoppel
109
Obscene and indecent advertisment and display: Section 292-293, Indian Penal Code.
110
Indian Succession Act, 1925
111
The Fatal Accidents Act,1855
112
Section 45 of the Insurance Act,1938
113
Injuries in police custody suggested section
114
Gram Nyayalaya
115
Tax courts
116
Formation of an all India Judicial service
117
Training of judicial officers
118
Method of appointement to subordinate courts
119
Access to exclusive forum for victims of motor vehicles act, 1939
120
Manpower plaining in judiciary a blueprint
121
A new forum for judicial appointments
122
Forum for national uniformity in labour adjudication
123
Decentralisation of administration of justice: Disputes involving centres of Higher Education
124
The High court arrears-a fresh look
125
The Supreme court-a fresh look
126
Government and public sector undertaking litigation policy and strategies
127
Resource allocation for infra-structual services in judicial administration
128
Cost of legislation
129
Urban legislation mediation as alternative to adjudication
130
Benami transaction a blueprint
131
Role of legal profession in administration of justice
132
Need for amendment of the provisions of the Chapter IX of the Code of Criminal Procedure, 1973 inorder to ameliorate the hardship and mitigate the distress of neglected women, children and parents
133
Removal of discrimination against women in matters relating to guardianship and custody of minor children and elaboration of the welfare principles
134
Removing deficiencies in certain provisions of the workmen's Compensation Act, 1923
135
Women in custody
136
Conflicts in High Courts Decisions on Central Laws
137
Need for creating office of ombudsman
138
Legislative protection for slum and pavement
139
Urgent need to amend order XXI, Rule 99(2), Code of Civil Procedure
140
Need to amend order V , rule 19A of the Code of Civil Procedure, 1908
141
Need for amending the law as regards power of courts to restore criminal revisional applications and criminal cases dismissed for default in appearance.
142
Concessional treatment for offenders who on their own initiative choose to plead guilty without any Bargaining
143
Legislative safegaurd for protecting the smal depositors from exploitation
144
Conflicting judicial decisions pertaining to the Code of Civil Procedure, 1908
145
Article 12 of the Constitution and Public Sector Undertakings
146
Sale of Women and Childern
147
The Specific Relief Act 1963
148
Repeal of certain pre-1947 central act
149
Removal of certain deficiencies in the Motor Vehicle Act, 1988
150
Suggesting some amendments to the Code of Civil Procedure, 1908
151
Admiralty Jurisdication
152
Custodial Crimes
153
Inter-country adoption
154
The Code of Criminal Procedure, 1973 (Act No 2 of 1974) Vol I
154
The Code of Criminal Procedure, 1973 (Act No 2 of 1974) Vol II
156
The Narcotics Drugs and Psychotropic substanc
156
The Indian penal code-Vol I
156
The Indian penal code-Vol II
157
Section 52 Transfer of Property Act ,1882
158
The Amendment of the Industries (Development and Regulation Act, 1951)
159
Repeal and amndment of laws Part 1
160
Amendements to the All India Council for Technical Education Act, 1987
161
Central Vigilance Commission and Allied Bodies.
162
Review of Functioning of Central Administrative Tribunal
163
The code of Civil Procedure (amendment) bill,1997
164
The indian divorce act 1869
165
Free and compulsary education for childern
166
The corrupt Public Servants (Forfeiture of Property Bill)
167
The Patents(amendment)Bill ,1998
168
The Hire purchase Act,1972
169
Amendment of Army,Navy and Airforce Acts

Laws violating Constitution's framework open to review: SC

2008-09-08T23:31:00.001-07:00

January 11, 2007 11:25 IST
Last Updated: January 11, 2007 16:11 IST

In a landmark judgment with far reaching implications, the Supreme Court on Thursday ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights.

In an unanimous verdict, a nine-member Constitution bench headed by Chief Justice Y K Sabharwal rejected the government's claim that certain laws, even if they infringed the fundamental rights of citizens, cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.

The judgment, which came a day after apex court ruled that Parliament's decisions were subject to judicial review, assumes significance in the wake of laws like the one in Tamil Nadu, which provides 69 per cent reservations, and has placed the law under the Ninth Schedule to circumvent judicial review.

The apex court had earlier held that social reservations shall under no circumstances exceed the permissible limit of 50 per cent.

To overcome the ruling, the then Jayalalithaa government placed the law under the Schedule.

Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon fundamental rights, and had put them under the Ninth Schedule to avoid judicial scrutiny.

The ruling could affect over 250 legislations enacted by the Centre and various states, and put under the Schedule.

These include Central Coal Mines Act 1974, Additional Emoluments Act 1974, COFEPOSA Act 1974, Sick Textile
Undertaking Act 1974, UP Imposition of Sealing on Land Holdings Act 1974, Orissa Land Reforms Act 1965 and ESMA.

The bench held that although the government was entitled to place laws in the Ninth Schedule, such legsislations if they violated the fundamental rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution are liable to be struck down by courts.

An NGO -- Common Cause had challenged such legislations.

The Supreme Court constituted a nine-member bench to decide on the constitutional validity of the issue.

The NGO had asked whether laws included in the Ninth Schedule on or after April 24, 1973, were entitled to the protection under Article 31-B, which offers immunity against fundamental rights.

The petitioner also wanted to know whether the inclusion of a law in the Schedule was violative of Article 14, 19 and 31 and destroys the basic structure of the Constitution.

Delivering the verdict in a packed courtroom, the bench said the government while putting a law under the Ninth Schedule should adopt a middle path to maintain a balance between the fundamental rights and Directive Principles "that
has to be tilted towards the citizen."

Refusing to accept the government's contention that such laws enjoyed absolute immunity, the bench said that any legislation, which was not compatible with the basic structure of the Constitution can be declared null and void by the courts.

"The power to grant absolute immunity is not compatible with the basic structure of the Constitution," the bench observed.

Expressing its strong resolve to protect the Constitutional guarantees accorded to the citizen, the bench said, "Law put in the Ninth Schedule has to be tested on the touchstone of the basic structure as even a minor change can destroy the basic structure."

The cut-off date April 24, 1973 has been fixed for the Ninth Schedule as it was on that day a 13-member Constitution bench of the Supreme Court gave a historic ruling in the Keshavananda Bharti case that Parliament had no power to amend the basic structure of the Constitution.

The Ninth Schedule emanates from Articles 31 A and 31 B, which were introduced by the Constitution's (first amendment) Act 1951, with effect from June 18, 1951, to ensure that certain laws were valid even if it violated the fundamental rights of a citizen.

In other words, Parliament arrogated to itself the power to amend the Constitution in any manner it liked, irrespective of the fact whether it overrode the fundamental rights.

Incidentally, in 1952, the Supreme Court in the Shankari Prasad Singh Deo vs Union of India case held that Articles 31 and 31 B were constitutionally valid amendments.

Since a constitutional amendment was an exercise of constituent power, Fundamental Rights under Part III were not immune from such amendment. The effect of that judgment was that Article 13 (2), which prohibited the state from making legislations abrogating the fundamental rights, will not apply in the case of laws placed in the Ninth Schedule of the Constitution.

Secondly, it was held in the said judgment that the powers of the High Court and the Supreme Court were not in any manner infringed and all that was done by insertions of Articles 31 A and 31 B were that a certain class of cases had been excluded from being given the protection of fundamental right.

However, subsequently in 1967 in the Golak Nath case by a majority opinion a 11-member Bench of the apex court ruled that Parliament had no power to amend Part III of the Constitution such as to take away or abridge fundamental rights.

The view was further strengthened in the Kesavananda Bharti case and the Indira Gandhi vs Raj Narian case wherein it was held that Parliament's power to make laws and amend the Constitution cannot take away the fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.

THE CONSTITUTION (TWENTY-FOURTH AMENDMENT) ACT, 1971

2008-09-08T23:29:00.000-07:00

Statement of Objects and Reasons appended to the Constitution
(Twenty-fourth Amendment) Bill, 1971 which was enacted as
THE CONSTITUTION (Twenty-fourth Amendment) Act, 1971

STATEMENT OF OBJECTS AND REASONS

The Supreme Court in the well-known Golak Nath's case [1967, 2 S.C.R.
762] reversed, by a narrow majority, its own earlier decisions
upholding the power of Parliament to amend all parts of the
Constitution including Part III relating to fundamental rights. The
result of the judgment is that Parliament is considered to have no
power to take away or curtail any of the fundamental rights guaranteed
by Part III of the Constitution even if it becomes necessary to do so
for giving effect to the Directive Principles of State Policy and for
the attainment of the objectives set out in the Preamble to the
Constitution. It is, therefore, considered necessary to provide
expressly that Parliament has power to amend any provision of the
Constitution so as to include the provisions of Part III within the
scope of the amending power.

2. The Bill seeks to amend article 368 suitably for the purpose and
makes it clear that article 368 provides for amendment of the
Constitution as well as procedure therefor. The Bill further provides
that when a Constitution Amendment Bill passed by both Houses of
Parliament is presented to the President for his assent, he should
give his assent thereto. The Bill also seeks to amend article 13 of
the Constitution to make it inapplicable to any amendment of the
Constitution under article 368.

NEW DELHI; H. R. GOKHALE.

The 22nd July, 1971.

THE CONSTITUTION (TWENTY-FOURTH AMENDMENT) ACT, 1971

[5th November, 1971.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Twenty-second Year of the Republic
of India as follows:-

1. Short title.-This Act may be called the Constitution
(Twenty-fourth Amendment) Act, 1971.

2. Amendment of article 13.-In article 13 of the Constitution, after
clause (3), the following clause shall be inserted, namely:--

"(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.".

3. Amendment of article 368.-Article 368 of the Constitution shall be
re-numbered as clause (2) thereof, and-

(a) for the marginal heading to that article, the following marginal
heading shall be substituted, namely:-

"Power of Parliament to amend the Constitution and procedure
therefor.";

(b) before clause (2) as so re-numbered, the following clause shall be
inserted, namely:-

"(1) Notwithstanding anything in this Constitution, Parliament may in
exercise of its constituent power amend by way of addition, variation
or repeal any provision of this Constitution in accordance with the
procedure laid down in this article.";

(c) in clause (2) as so re-numbered, for the words "it shall be
presented to the President for his assent and upon such assent being
given to the Bill", the words "it shall be presented to the President
who shall give his assent to the Bill and thereupon" shall be
substituted;

(d) after clause (2) as so re-numbered, the following clause shall be
inserted, namely:-

"(3) Nothing in article 13 shall apply to any amendment made under
this article.".

Constitutionality of a Constitutional Amendment

2008-09-08T23:16:00.000-07:00

Constitutionality Of Constitutional Amendment: A Case Study

Present Article involves very wide variety of Constitutional issues into it. It covers constitutionality of a Constitutional Amendment. It also involves the extent to which the Parliament has the power to amend Constitution. It tries to see Constitutional Amendment in the light of following Basic Structure. And also looks at concept of Pith and Substance as to whether a law enacted for purposes of enforcing D.P.S.P. u/A.39 can be declared valid if it is able to establish a nexus with A.31 C of Constitution.

Topic of Article involves a case study. And, case is Minerva Mills Ltd v. U.O.I[1]. It is a 5 Judge Bench unanimous decision. In this case the question of law that was discussed was of validity of S. 4 and S. 55 of the 42nd Constitutional Amendment.

Judgment for majority was written by C.J. Chandrachud. Out of 5, four judges were Gupta, Chandrachud, Untwalia, and Kailasam J.J. And 5th Judge was J. Bhagwati, who with his great intellectual capacity to link law with philosophy gave a separate judgment to held S.4 and S.55 of 42nd Constitutional Amendment as Ultra Vires of Constitution.

Case covers wide areas of Constitution. It covers what is basic structure and give criteria are as to what particular feature can be termed as part of basic structure. Whether Fundamental Rights[2] or Directive Principles of State Policy[3] are important? What is the limit of power of Parliament to amend the Constitution and is their any limitation to that power of Parliament or not? Whether the amendments that have been brought to 9th Schedule of the Constitution are they supposed to pass Keshavananda Bharti[4] Case Test or not?

Basically these two Sections of 42nd Constitutional Amendment introduced a dramatic change in the feature of Indian Constitution and gave a wide power to Parliament to amend Constitution.

S.4 of amendment was drafted in such a way that it subordinated A.14 andA.15 of Constitution. And S.55 introduced A. 368(4) and (5) which in turn took away power of judiciary of Judicial Review and by that Parliament was allowed to destroy the basic feature of Constitution

And A.368 was also amended and (4) & (5) to A.368 were inserted by S.55, after Constitutional Amendment which reads: -
(4) No amendment of this Constitution including the provisions of Part III; made for purporting to have been made under this article (whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

Issues
# Whether S.4 and S.55 of the Forty Second Constitutional Amendment Act, 1976 is constitutionally valid and do they destroy the Basic Structure of Constitution?
# Whether Parliament has an unlimited power u/A.368 to amend Constitution?
# In case of conflict, what will have priority, D.P.S.P. or F.R’s?
# Is it necessary to pass the Test of Basic Structure for any Constitutional Amendment Law?

Arguments
Mr. Palkhivala who appeared on behalf of the petitioners argued that: The amendment introduced by Section 4 of the 42nd Amendment destroys the harmony between Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The Constitution makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other. The basic structure of the Constitution rests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the Constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purport to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.

He further argued that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayats, providing living wages for workers and just and humane conditions of work, free and compulsory education for children, organisation of agriculture and animal husbandry, .and protection or environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between parts III and IV is brought back by the 42nd Amendment,

Finally it was urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President. Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation. Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation. While Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times. Thus, apart from destroying one of the basic features of the Constitution, namely, the harmony between Parts III and IV, Section 4 of the 42nd Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.

These contentions were stoutly resisted by the learned Attorney General appearing on behalf of respondents stating that: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution. Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far us Clauses (d) and (e) of Article 19(1) are concerned. They would therefore be saved in any case. The history of the Constitution, particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by Articles 31A, 31B and the amended Article 31C, which were all upheld by this Court, establish the width of the amending power under Article 368. The impugned amendment therefore manifestly falls within the sweep of the amending power.

The learned Attorney General further argued that a law which fulfils the directive of Article 38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the Constitution inasmuch as that structure itself is founded on the principle of justice- social, economic and political. Article 38, which contains a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. A law which complies with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimizing inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It. will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article 19 does not damage the basic structure of the Constitution.

Learned Additional Solicitor General argued further that: For extracting the ratio of Keshavananda Bharati[5] one must proceed on the basis that there were at many cases as there were declarations sought for by the petitioners therein. The majority in regard to Article 368 is different from the majority in regard to the decision in respect of Article 31C. The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of Article 31C will both sustain the validity of Section 4 of the 42nd Amendment. In regard to fundamental rights, the ratio of the judgments of 1 out of 13 Judges, i.e., all excepting Jaganmohan Reddy J. will empower amendment of each one of the articles Part III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential lectures is within the permissible limits of amendment. The unamended Article 31C having been upheld by the majority in Keshavananda Bharati both on the ground of stare decisis and an the ground of contemporaneous practical exposition, the amended Article 31C must be held to be valid, especially since it has not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases ‘inconsistent with’ or take away which occur in Articles 31A, 31B and 31C should be read down to mean ‘restrict’ or ‘abridge’ and not ‘abrogate’. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.

The learned Counsel further argued that: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. The unamended Article 31C is valid in reference to laws relatable to Article 39(b) and (c), no dichotomy can be made between laws rein table to these provisions on the one hand and laws relatable to other directive principles. A value Judgment is not permissible to the Court in this area.

It was finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider:
(I) whether the impugned law has 'direct and reasonable nexus' with any of the directive principles;
(ii) Whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;
(iii) Whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and
(iv) If so, whether the encroachment, in effect, abrogates that fundamental right.

Both the Attorney General and the Additional Solicitor General raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court; “whether the provisions of the Forty-second Amendment of the Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are ultravires the amending power of Parliament?” is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.

Judgment
Court observed for first issue that Constitutional amendment involved Articles 13, 14, 19, 31-A, 31-B, 31-C, 32, 38, 132, 133, 134, 141, 226, 352 and 368 of Constitution of India. Vires of Articles 368 (4) and 368 (5) which was introduced by Section 55 of Constitution of India (43rd Amendment) Act is under challenge. Article 368 (5) conferred upon Parliament an unlimited power to amend Constitution. And, Article 368 (4) deprived Courts of its power of judicial review over constitutional amendments But, article 368 (5) was struck down as Parliament had only limited amending power. And, such limited power cannot be enlarged into absolute power by expanding its amending powers. Parliament cannot destroy Constitutions basic structure and limited power cannot be converted into unlimited power. Article 368 (4) prohibiting judicial review violates basic structure. So, S.C. held, Articles 368 (4) and 368 (5) as unconstitutional.

For second and third issue court observed that Parliament has power to amend constitution but this power is not unlimited and unfettered. It is restricted by Basic Structure of Constitution. Question of Directive principles of State policy also rose, whether directive principles can have supremacy over fundamental rights? Merely because directive principles are non-justiciable it does not mean that they are subservient to fundamental rights. But, destroying fundamental rights in order to achieve goals of directive principles amounts to violation of basic structure. And, giving absolute primacy to one over another would disturb harmony. And, goals of directive principles should be achieved without abrogating fundamental rights. Directive principles enjoy high place in constitutional scheme. But, both fundamental rights and directive principles are to be read in harmony. So, S.C. observed amendments in Article 31C introduced by Section 4 of 42nd Amendment Act as Unconstitutional.

S.C. observed that Judicial Review is a part of Basic Structure of Constitution. It was further stressed that it is the function of the judges to pronounce upon the validity of laws. If the Judiciary is deprived of that power then the Fundamental Rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will become uncontrolled. The court ruled that extension of shield of A.31 C to all Directive Principles of State Policy (D.P.S.P.) was beyond the amending power of Parliament u/A.368 of Constitution. Because by giving premises to all D.P.S.P. over Fundamental Rights in A 14 and A 19 , the basic or essential feature of Constitution viz Judicial Review will be destroyed.
--------------------------------------------------------------------------------
[1] A.I.R. 1980 3 SCC 625
[2] Hereinafter termed as F.R
[3] Hereinafter termed as D.P.S.P
[4] (1973) 4 S.C.C 225
[5] MANU/SC/0445/1973

When judges play king:Suicide becomes a Constitutional right

2008-09-08T23:10:00.000-07:00

For the past decade, the political battle over what is called the "right to die" has been raging across our nation. Those who deny the exis-tence of such a right have lately had some reason to hope that the grim tidal wave of "progress" predicted by the Hemlock Society and the ACLU would not come to pass. Only one state has enacted an assisted suicide statute and similar proposals have been rejected by several others. The governor of New York commissioned a task force to study the issue and the members unanimously agreed against recommending a change in New York law to permit assisted suicides.

But once again, federal judicial action threatens to trump the democratic process and imperiously declare a national winner in this bitterly divisive debate. In the case of Compassion in Dying v. State of Washington, the United States Court of Appeals for the Ninth Circuit decided on March 9th that "there is a constitutionally protected liberty interest in determining the time and manner of one's own death," and struck down Washington's prohibition of physician assisted suicide for the terminally ill. Instead of submitting itself to the constraints of the Constitution--whereby most issues of grave societal consequence are to be struggled with by the people until broad public consensus is reached--the Ninth Circuit has seized the king's crown and issued an edict designed to end debate.

The following is a synopsis of the court's stunning rationale--its self-described "reasoned judgment," which it has the temerity to claim is based on history and precedent.

Here is its historical analysis:

The court notes that in Ancient Greek and Roman society, philosophy and literature, suicide was considered noble in many instances. Then, interestingly, it points to the zeal for martyrdom among the early Christians as clear evidence of a Church-sanctioned, natural human desire to hasten death.

The court admits that St. Augustine spoke out against suicide and the overzealous martyr, but it explains this by declaring that his concerns were "utilitarian," that is, he did not want the Church's ranks to be depleted. (I am not making this up.) As the court sees it, the unfortunate utilitarianism of Augustine eventually developed into full-blown medieval anti-suicide doctrine, resulting in such deplorable practices as burying suicide victims at crossroads and driving stakes through their hearts.

This dark dogma was dispelled by the enlightenment, which tore at the superstitious underpinnings of the Church's irrational opposition to suicide. By the nineteenth century, courts and legislators had stopped enforcing anti-suicide statutes. Now, (the court seems to say) the time has come to complete the "good work" begun at the enlightenment, and legally recognize everyman's right to a comfortable death.

Liberal jurists, not generally known for their commitment to historical analysis, have evidently found that it can be quite useful in this age of deconstruction.

I doubt whether this is what Justice Scalia had in mind when he lamented Constitutional analysis divorced from history and tradition.

But here is the philosophy:

I quote: "We see no ethical or constitutionally cognizable difference between a doctor's pulling the plug on a respirator and prescribing drugs to cause death." Death results in both cases. Death is the intent in both cases.

Such unrespectable analyses give credence to the accusation that federal judges have taken on the role of amateur philosophers. Crucial, life and death distinctions agonized over by theologians, philosophers and medical ethicists are casually waved away by these judicial idealogues.

Further muddying the ethical waters, the court rejects the term "suicide." Without saying exactly why or how, it asserts that "right to die" or "hastening one's death" are more "accurate" terms. Indeed, it finds that the term suicide is not an "appropriate legal description of the conduct at issue." (Too lucid, probably.)

Anyone else reminded of "pro-choice" instead of "pro-abortion;" "fetus" rather than "child"?

The Interests of the State:

Possibly the most disturbing aspect of the opinion is the court's rejection of the state's reasons for prohibiting physician assisted suicide. Every reason given is twisted into a reason for protecting the "right to die."

The state argued that the disabled and poor will be vulnerable to those who see their lives as useless. The court found this argument to be a "recycl(ing of) one of the more disingenuous and fallacious arguments raised in opposition to the legalization of abortion." As they see it, the real concern is that the disabled and poor "will not be afforded a fair opportunity to obtain the medical assistance to which they are entitled--the assistance that would allow them to end their lives with a measure of dignity." And, in any case, they are confident that "adequate safeguards" will guard against the remote occurrences of abuse.

The state argued further that the medical profession will be compromised when physicians become killers. Dead wrong, said the court. First, the presence of impartial professionals will protect the vulnerable from abuse. Second, the medical profession is compromised, not by participation in this "humane" activity, but by criminal statutes that prevent it from fulfilling "professional obligations" and "make covert criminals out of honorable, dedicated, and compassionate individuals." Finally, said the court, those who prophesy that physician assisted suicide will destroy the medical profession do not know their history. The same argument was used against the legalization of abortion, but "once the Court held that a woman has a constitutional right to have an abortion, doctors began performing abortions routinely and the ethical integrity of the medical profession remained undiminished... The slippery slope fears of Roe's opponents have, of course, not materialized... The legalization of abortion has not undermined our commitment to life generally... Similarly, there is no reason to believe that legalizing assisted suicide will lead to the horrific consequences its opponents suggest." (I quote at length lest I be accused of exaggerating.)

The precedent:

Although the court gave lip-service to the line of decisions regarding the refusal of medical treatment (with Cruzan being the principal decision), the focal point of its analysis of legal precedent was Planned Parenthood v. Casey, the controversial Supreme Court abortion decision in which Roe v. Wade survived by a single vote. In analyzing a person's constitutional liberty interest, the Casey Court wrote that: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." This has become the mantra of constitutional law--the right to "define oneself" and the right to be left alone. No reference to the impact of individual actions on society as a whole. The uninhibited self is the sole arbiter of the validity of actions.

The Ninth Circuit endorsed this philosophy in its closing line: "Those who believe that death must come without physician assistance are free to follow their creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths."

The court personalized its painfully long analysis (I often wished the plug had been pulled on this opinion 40 or 50 pages sooner) with stories of individuals who could not obtain physician assisted suicides and were thus "forced" to kill themselves in horrible ways--shotguns in the mouth, leaps off bridges and plastic bags over the head. In the court's view, the state's unwarranted fears that some may be coerced into suicide cannot compare to the misery inflicted on these individuals and their families. And should a doctor misdiagnose a patient's condition, such an error "is likely to benefit the individual by permitting a victim of unmanageable pain and suffering to end his life peacefully and with dignity at the time he deems most desirable."

In other words, maybe he wasn't terminal, but--oh well--he died peacefully.

Mixing pseudo-history, pseudo-philosophy, pseudo-constitutional law and story-telling, the court takes over ninety pages to find a constitutional right to die. The "right" is limited to the terminally ill, but one can expect the next decision to hold that there is no distinction between terminal illness and short-term illness or between physical pain and psychological pain. The individual must be allowed to define his own vital boundaries.

Meanwhile, in arriving at this decision, the court portrays those who disagree with it as insufficiently dispassionate, and has the gall to "hope that whatever debate may accompany the future exploration of the issues we have touched on today will be conducted in an objective, rational, and constructive manner that will increase, not diminish, respect for the Constitution."

The allegedly not-so-dispassionate panel opinion which was reversed by this decision was authored by Judge Noonan, a highly respected jurist and (gasp) a Catholic. Judge Noonan needed only a few pages for his brilliant opinion, in which he concluded that "In the two hundred and five years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction. Unless the federal judiciary is to be a floating constitutional convention, a federal court should not invent a constitutional right unknown to the past and antithetical to the defense of human life that has been a chief responsibility of our constitutional government." Many accused Judge Noonan of letting his faith get in the way of his judgment. Richard John Neuhaus commented that he hoped Noonan's Catholic morality had had a bearing on his decision-- "not because of his position on the issue but because he understands that judges have a moral duty not to make up constitutional rights."

Sadly, it is likely that the Supreme Court will reject Judge Noonan and go the way of the Ninth Circuit. Indeed, the path of the Ninth Circuit is a path that the Supreme Court itself had cleared. It is a path antithetical to the long-term survival of civil society, whereby such society is robbed of the ability to define itself in any way and instead must submit to the myriad choices of individuals who care not for its ruin. This is the constitutional quest for liberty: leave me alone and I will leave you alone. This quest could hardly be in sharper contrast to that of John Paul II, who wrote in The Gospel of Life:

"The roots of the contradiction between the solemn affirmation of human rights and their tragic denial in practice lies in a notion of freedom which exalts the isolated individual in an absolute way, and gives no place to solidarity, to openness to others and service of them. While it is true that the taking of life not yet born or in its final stages is sometimes marked by a mistaken sense of altruism and human compassion, it cannot be denied that such a culture of death, taken as a whole, betrays a completely individualistic concept of freedom, which ends up by becoming the freedom of 'the strong' against the weak who have no choice but to submit." (Chapter I, section 19)

Mark Fischer is a Pittsburgh attorney, an alumnus of the class of '89 and Contributing Editor of the Concourse.

By the same author:
• The 'role' of rock: Beauty and truth in the not so fine arts, (I,2)
• Rock music: A response to Andrew Minto, (I,3)
• When judges play king: Suicide becomes a Constitutional right, (I,4)
• A defense of a diversified core, (I,7)
• More on the curriculum debate, (II,2)
• Trumpeting all the right views will not solve the crisis facing America, (II,5)
• The importance of engaging questions about our campus culture, (IV,7)
• A new kind of scandal, (VII,1)

An Insight On Constitution of India, various Reviews and articles....

2008-09-08T23:04:00.000-07:00

Article 21 Of The Constitution:
Indian democracy wedded to rule of law aims not only to protect fundamental rights of its citizens but also to establish an egalitarian order,...

Constitutional Background
The constitution was passed by the Constituent Assembly on 26 Nov 1949 and is fully applicable since 26 Jan 1950...

Making Of The Constitution
The Constituent Assembly which had been elected for undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th August 1947...

Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens...

Fundamental Rights
Fundamental Rights, are more elaborate than those of any other existing written Constitutions of the World...

Fundamental Duties
A countervailing factor has been introduced by the 42nd amendment Act of 1976, known as the Fundamental Duties...

Directive Principles
These Principles are in the nature of instruments of instruction to the govt...

Parliament
The Parliament of India consist of The President and two houses....first function of The Parliament is that of providing the Cabinet and holding them responsible...

Political Parties
General elections in May 1996 made the Bharatiya Janata Party (BJP) the biggest party capturing 161 seats along with...

A Complete Summary Review
A complete review of the entire Constitution Has been given article wise...

(*) Uniform Civil Code
(*) Principles of Jermy Bentham and S.C of India
(*) Repeal Of POTA - Justified
(*) Politics Of Constitutional Amendments In India

Preamble- A Key To Open The Minds Of The Framers Of The Constitution:
The Preamble to a Constitution embodies the fundamental values and the philosophy, on which the Constitution is based,

Supreme Court the Final Pedestal of Justice:
A law may be defined as an assemblage of signs, declarative of a volition, conceived or adopted by the sovereign in a stage...

Constitution-Judicial Democracy:
Judiciary is that branch of government that interprets the laws or says what the laws mean & democracy means a form of government...

Doctrine Of Basic Structure (Constitutional Law): It is very difficult to state a single and accurate definition of the term ?law? as it is a general term and has different connotations for different people.....

Racism - Society’s Cancer:
Racism refers to beliefs, practices, and institutions that negatively discriminate against people based on their perceived or ascribed race....

Dual Citizenship:
The status of being a citizen of a specific nation state, signifies a person’s legal status and carries with it numerous consequences.....

Writ Of Habeas Corpus For Securing Liberty: The concept of writ essentially originated in England & to issue appropriate writ.....

Nature Of The Indian Constitution: Judicial Exposition:
The Constitution of India is not an end but a means to an end, not mere democracy as a political project but a socio-juridical

Doctrine Of Constitutional Tort:
Under the English Common Law the maxim was "The King can do no wrong" and therefore, the King was not liable for

Right to die- " To be or not to be?"
The care of human life and happiness and not their destruction is the first and only legitimate object

Sustainable Development and Indian Judiciary:
Right to wholesome environment is a fundamental right protected under Article 21 of the

Austianinan Concept Of Sovereignty:
Austin places the notion of sovereignty at the basis of his theory of law. Austin borrowed from

Legality Of Foreign Judgments
The article/paper aims to study the binding nature of the foreign judgments i.e. judgments given by the courts in foreign countries

The Right to Die

2008-09-08T22:45:00.000-07:00

1. The Issue: Does the Constitution protect the decision to end one's own life, at least if one is terminally ill or in great pain?LINK
2.

Justice O'Connor and the 'Right to Die': Constitutional Promises Unfulfilled LINK
3. Right to die- " To be or not to be?"

In the advent of delving into what has unfurled into one of the most controversial issues that could have tremendous ramifications on basic ethical concepts and most importantly, the sanctity of life…. The precious words of Thomas Jefferson strike a chord.
"The care of human life and happiness and not their destruction is the first and only legitimate object of good governance."

In juxtaposition, the words "Right to Die" evoke an exactly opposite sentiment. How can it be a right if you are using it to give up your rights? The above right has been used as a guise or a camouflage to include various concepts that are opposed to preservation of life. Euthanasia, Physician Assisted Suicide (PAS), Suicide, though conceptually different, are species of the same genre.

The Indian Perspective:
In India, the sanctity of life has been placed on the highest pedestal. " The right to life" under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the "Right to Die".

The stance taken by the judiciary in this regard is unquestionable.

In Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include "death with dignity" but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In progression of the above, the constitutionality of Section 309 of the I.P.C, which makes "attempt to suicide" an offence, was upheld, overruling the judgment in P. Rathinam's case.

The factor of immense significance to be noted here is that suicide, euthanasia, mercy killing and the like amount to unnatural ebbing of life. This decision thereby overruling P.Rathinam's case establishes that the "Right to life" not only precludes the "right to die" but also the right to kill."

Interestingly in P.Rathinam's case, even when a Division bench affirmed the view in M.S Dubal v. State of Maharashtra that the "right to life" provided by the Constitution may be said to bring into its purview, the right not to live a forced life, the plea that euthanasia be legalized was discarded. It was held that as euthanasia involves the intervention of a third person, it would indirectly amount to a person aiding or abetting the killing of another, which would be inviting Section 306 of the I.P.C.

In Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed that "Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected."(Emphasis added).

The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural termination of life, whether an attempt to suicide, abetment to suicide/assisted suicide or euthanasia, is illegal. The fact that even an attempt to suicide is punishable goes to show the extent of credibility accorded to the sanctity of life and the right to life as a whole. This apart, the decriminalization of euthanasia is unworkable in the Indian perspective, even on humanitarian grounds, as it involves a third person.

Though, there has been no legislation pertaining to euthanasia in India, the term keeps on coming back for public approval like a recurring decimal.

An impracticable solution:
The implication of the term "euthanasia" is itself shrouded in ambiguity. Derived from the Greek word "euthanatos" meaning "good death". To reiterate the judicial pronouncements in the Indian context, good or happy death would imply the ebbing of life the natural way.

In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used a deliberate euphemism to reduce the culpability of an act". an act which is a subset of murder, by injecting the term "mercy". The fact remains" Euthanasia/ Mercy killing is about giving license for the right to kill.

Euthanasia is defined as an "intentional killing by an act/ omission of person whose life is felt is not to be worth living." The above attribution consequentially includes just about any one who has a suicidal impulse. Moreover the term "person" is inclusive of any and everybody and is not solely restricted to "patients." The legalization of the above would result in nothing but pandemonium.

There have been views propagating the practice of passive euthanasia (letting some one die) to be morally permissible and active euthanasia (killing someone), morally impermissible. It is submitted that these distinctions are irrelevant and unnecessary as t of both acts inevitably center around a single element- an intention to kill.

The above premise has been aptly summed up by Professor James Rachels5 who believes…. The active and passive dichotomy is a distinction without a difference.

Proponents and "Right to die" groups argue that, a patient in unbearable agony and excruciating pain or "terminally ill", the saving- grace is euthanasia on compassionate grounds.

It is submitted that the problem here is" the term "terminally ill" has no precise definition. For instance, Jack Kervorkian, a famous proponent of euthanasia, defined "terminal illness" as "any disease that curtails life even for a day". Some laws define "terminal" as one from which death will occur in a "relatively short time" or "within a span of six months".

The nub of the point is that all these definitions scream ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual.

Interestingly, euthanasia activists have dropped references to terminal illness, replacing them with such phrases as "gentle landing", "hopelessly ill"' desperately ill" and "meaningless life."

It is reinforced that this issue hovers around an invaluable asset called "life". Just as a mistaken diagnosis is possible, so is a mistaken prognosis. It must be remembered that death is final and a chance of error too great to approve the practice of euthanasia.

Technology has come of age:
On the flip side of the coin, an undeniable transition is evidenced in the augmentation of medicine and technology. What was excessive in medicine fifty years ago may be ordinary and routine today. The idea here is that what is excessively burdensome and offers little hope for one may be less burdensome and more hopeful for a second patient in a different state of health.

A startling revelation...... Research has shown that ninety-percent of the pain can be alleviated by proper pain control methods. Appropriate care can make a huge difference. This goes to show that medicine and technological breakthroughs have a fitting reply to almost every problem and the extent of medical commitment is unassailable.

In contradistinction, if every terminal patient were prodded to a "gentle landing", impetus to research, which is the answer to curative medicine, would be foiled. If legalized, doctors would be forced to perform such acts against their consent that would amount to a violation of the Hippocratic Oath. Incidentally, it was as early as 400 B.C., when the renowned Greek physician stipulated in his Oath ........" I will give no deadly medicine to anyone if asked, nor suggest any such course."
The fact remains that the practice of euthanasia has been ostracized since time immemorial and Oregon, Belgium and The Netherlands are the only jurisdictions in the world where laws specifically permit euthanasia or assisted suicide.

It may be pertinent to mention that the most vital point is the repercussions that could take place once something as controversial is legalized. The matter is not an issue of force but an issue of the way laws can be expanded once something is declared legal. In India, where abuse of the law is the rule rather than the exception and where conniving relatives clamor to lap up an heirloom, the abovementioned argument holds great weight age.

To elucidate, in England, the House of Lords in Airedale NHS Trust v. Bland permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Subsequently, the Supreme Court of Ireland in Re A Ward of Court expanded the persistent vegetative state to include cases where the patient possessed limited cognitive faculties.

In Netherlands, the Supreme Court in a 1984 ruling held that euthanasia could be lawful only in cases of physical illness. However, a decade down the line, the Supreme Court in Chabot's case held that it could even extend to cases of mental illness.

Thus, there is evidenced a conceptual degradation of the right to live with dignity.

The sole qualitative argument in favor of euthanasia, is the fact that if procedures are stringent and foolproof and with proper mechanisms in place, then the legalization of the same could be effected in India. For instance, in The Netherlands the request for euthanasia should come only from the patient and be free, voluntary, and persistent; it should be the last resort and should be performed by a physician in consultation with an independent physician colleague who has experience in the field.

Poles Apart:
It is humbly submitted that the implementation of the above mechanism in India is utopian and thus the two situations incomparable. It is ironical to note that ninety percent of the patients succumb to death without receiving any primary health care. Thus the logical derivation of this aspect would be that India does not have an appropriate health-care mechanism in place, let alone foolproof procedures for euthanasia.

In the presence of the above bottlenecks and policing rampant in our country, the appropriate course of action would be to develop proper "care ethics", ensuring a "dignified existence and termination" of life. Let us augment the above and resultantly, the concept of euthanasia will be nothing but a distant reality.

All in all....... "No life that breathes with human breath has ever truly longed for death."

4. Right to Die - Legal and Moral Aspects

Introduction:-
In my project I do not intend to give only the legal side of the right to die. I want to probe into the emotional side too. Because that is what it actually is. All the fundamental rights guaranteed to the citizens of India reflects our needs, our aspirations, our right to be able to do something and by defining its boundaries this right is curtailed which in turn curtails our desires.

What I do intend to tell you through this project is something which is my personal opinion. I consider myself as just any other person expressing my opinion on a burning issue and what I want to analyse is how will legalizing �right to die� affect me and the society I live in?For, at the end of the project I will have to admit that I am not in a state where I would want to die or ask for assistance for terminating my life so I can only empathies with those unfortunate people who are in that state and since I represent the masses I would be in a better position to paint the larger perspective-the common good which needs to be considerd before legalizing the right to die. But then again to understand the picture one has to know about the history, the whole reason why right to die and euthanasia suddenly emerged in India and why is it that till date the court refuses to legitimize it and the legislature refuses to legalize it. But my project's main focus is on: what will happen if right to die is legalized in India?

� We the people of India
Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. It is the people's power for people's benefit. Constitution creates rights and duties. All most all our demands get converted into rights-even our feelings, emotions is governed by the rights and duties we have.

Constitution is a social document. It is the society in its political aspect. We can't understand its nature without understanding the chief characteristics of the society. If the constitution is such that it has taken into its consideration, the social set up, then only will it stand the test of time. constitution and society grows, develops together and gets intertwined in each other. The constitution takes into account change and developments in the society. Instances of them are:-

a) Right to education: below the age of 14yrs has been guaranteed by Article 21-A. recent developments are about guaranteeing education in the technical, higher educational institutions.
b) Right to clean environment
c) Right to life : is widely interpreted to include the right to dignified living-this includes rights guaranteed to prisoners, inmates of protective homes, right to release and rehabilitation of bonded labourers , right to legal aid, and the right to know.
d) Right to go abroad.
e) Right to privacy.
f) Right against solitary confinement.

The aforesaid is enough to state that Article 21 has enough of positive content in it. the originating idea in this regard is the view expressed by Field J. in Munn v. Illnois, (1876) 94 US 113, in which it was held that the term 'life' (as appearing in the 5th and 14th amendments to the United States Constitution) means something more than 'mere animal existence'. This view was accepted by a Constitution Bench of this Court in Kharak Singh v. State of U.P., MANU/SC/0085/1962 to which further leaves were added in Board of Trustees Port of Bombay v. Dilip Kumar, MANU/SC/0184/1982 Vikram Dev Singh v. State of Bihar, MANU/SC/0572/1988; and Ram Sharan v. Union of India, MANU/SC/0406/1988. In these decisions it was held that the word 'life' in Article 21 means right to live with human dignity and the same does not merely connote continued drudgery. It takes within its fold "some of the finer graces of human civilization, which makes life worth living", and that the expanded concept of life would mean the "tradition, culture and heritage" of the concerned person.

It would be relevant to note the decision in State of Himachal Pradesh v. Umed Ram, MANU/SC/0125/1986. It was observed (here in paragraph 11 that the right to life embraces not only physical existence but the quality of life as understood in its richness and fullness by the ambit of the Constitution; and for residents of hilly areas access to road was held to be access to life itself, and so necessity of road communication in a reasonable condition was held to be a part of constitutional imperatives, because of which the direction given by the Himachal Pradesh High Court to build road in the hilly areas to enable its residents to earn livelihood was upheld. What can be more positive and kicking?

We may also refer to the article of Dr. M. Indira and Dr. Alka Dhal under the caption: "Meaning of life, suffering and death" as read in the International Conference on Health Policy, Ethics and Human Values held at New Delhi in 1986. This is what the learned authors stated about life in their article;--

"Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality the feeling of wholeness with a capacity for continuous intellectual and spiritual growth. Physical, social, spiritual and psychological well being are intrinsically inter woven into the fabric of life. According to Indian philosophy that which is born must die. Death is the only certain thing in life."

Going by the above it is clear that this human dignity will be lost if on is left to suffer in old age, crippled and abandoned or in any point in our lives when we are suffering from a incurable disease. If Article 21 can be interpreted as has been done in many cases above, then why can right to die not be included? After all every one has the right to live with dignity. But in India things are not that simple. One has to take into consideration not the interest of a few but that of the 1 billion people whose lives will positively or negatively be affected by such a decision.

To draw out a definite conclusion, one has to analyse the pros and cons of legalizing �right to die�.

�I have the right to die
As we have already seen, no country's Constitution can be an enduring Constitution if it does not take into cognizance the interest of the people for whom this Constitution has been framed. And so there are various arguments given by people who believe that one should have the right to die. Their arguments go as follows:
1. If I have been guaranteed right to life, I should be guaranteed the right to die as well
C A Thomas, 86-year-old retired school teacher of Thrissur, who was the first one in India to demand the right for voluntary death had argued that Article 21 indeed bestowed on every citizen a right to life and method of death. Our Constitution guarantees the right to life. The right to life is incomplete without the right to death. The karma of life is a wheel that is completed only when birth is complemented by death. The right to die is built into the right to live.

Supreme Court in Gian Kaur v. State of Punjab3, said that it is well settled that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. The Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it. To give meaning and content to the word 'life' in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.

The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equaled with the 'right to die' an un-natural death curtailing the natural span of life.

It is argued that right to die respects the individual's right to self-determination or his right of privacy. Interference with that right can only be justified if it is to protect essential social values, which is not the case where patients suffering unbearably at the end of their lives request to die when no alternatives exist. Not allowing the right to die would come down to forcing people to suffer against their will, which would be cruel and a negation of their human rights and dignity. Every person has a right to live with at least a minimum dignity and when the state of his existence falls below even that minimum level then he must be allowed to end such tortuous existence. In such cases relief from suffering (rather than preserving life) should be the primary objective.

At this juncture it would not be out of place to mention that the liberty to die, if not right strictu sensu, may be read as part of the right to life guaranteed by Article 21 of the Constitution of India. True that the Supreme Court has held that such an interpretation of Article 21 is incorrect18, but it is submitted that one may try to read the freedom to die as flowing from the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England. The Constitution states certain unalienable rights to life, liberty, and the pursuit of happiness. Since we have this right to life, it is our right to decide what we want to do with our lives. And people should be free to live their lives as they themselves think best.

2. If I have been reduced to a corpse, suffering from an incurable, interminable disease, I don't deserve to live with so much pain

3. Our religion supports a person who wants to die
C. Thomas a Christian, quoted the Gita and Ramayana to prove that " vanavas ", the ancient Indian tradition of merging with the Supreme was the most honourable system. "It is the western jurisprudence we now follow without thinking that considers taking one's own life a crime". In his argument he said that Jain preists after reaching a certain age starved themselves to death and the rishis and munis of those times also willfully ended their lives after attaining enlightenment.

4. I fear death and the pain that will come with it, I want to have a sound sleep
C. Thomas believed that death would be a pleasant experience if one were to die at an advanced age on his won volition with some medical help once he or she thought had fulfilled all possible duties of life. Most of the old people today spend their lives fretting about their death and that causes a lot of mental agony and suffering. Guaranteeing a person the right to die would dismiss the fear of death and mourning now prevalent in people.

5. I want to donate my organs before the disease affects it
Venkatesh, a 25-year-old muscular dystrophia patient, wanted to be granted the right to die. He sought to enforce the right so that he could donate organs before they were affected by his illness. The plea was rejected a day before his death by the Andhra Pradesh high court. The court ruled that the petition sought to violate the Transplantation of Human Organs Act, 1995, which had no provisions that allowed individuals to donate organs before they were brain dead. The court's caution in this case is understandable considering the implications of easing restrictions in organ transplant. However, the order indirectly reiterated the stated legal position that an individual had no right to end his life voluntarily. This is not the only case where someone of their free will wanted to donate their organs, to serve a noble cause and wasn�t allowed to do so. Otherwise in our country illegal trade of human body parts and organs is taking place at a massive rate and when a person approaches law and seeks its help, he is denied the same.

You do not have the right to die; you only have the right to live
1. I do not want to die, I want to live but they won't let me
What stands as the biggest fear in the minds of the people is the exploitation that will occur once right to die is legalized in our country. One example is that many of our age old social customs like sati pratha may get legitimacy once right to die is legalized. In a recent case of Roop Kanwar who performed sati in Rajasthan, there were many local people who supported her and asked everyone to do what she had done so bravely and uphold the Hindu traditions and long followed customs of the village. It can be falsely propagated by Hindu fanatics to serve their purpose saying that a woman has a right to die by throwing herself in the funeral pyre of her husband while the whole while she herself did not consent to it. It is the vast majority of illiterate people who will be targeted. They will be told to give up their lives for their religion and they will do so very gladly saying that they have a right to die, whatever be the reason.

The Sati (Prevention) Bill, which mandates:
1. one to five years imprisonment for any woman who attempts sati;
2. the death penalty or life imprisonment for abetment of Sati;
3. one to seven years imprisonment for glorification of Sati; and
4. Suspension of civic rights of anyone convicted of abetting or
glorifying Sati, i.e. disqualification from holding any public office. However this very piece of legislation will stand negated once right o die is legalized in our country.

2. India is a poor country where there are many feeding mouths and resources are less
In light of the increasing pressure on hospital and medical facilities, it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom the said facilities would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case.

But one should not forget that in a country like India where there is tremendous pressure on the available medical facilities, it is all the more necessary for the maximum utilisation of the limited facilities.

3. There is a risk of abuse of this right
It is again, a conflict between the humane, the ethical and the legal. it is not always that the patient wants to die. The relatives of the patient are also allowed to decide whether to let the patient live. In addition, even where the consent is that of the patient it may be one obtained by force. Use of physical force here is highly unlikely. But emotional and psychological pressures could become overpowering for depressed or dependent people. Moreover, financial considerations, added to the concern about being a burden, could serve as a powerful force that would lead a person to �choose� to die.

Moreover, it is argued that when a healthy person is not allowed to commit suicide then why a diseased person should be allowed to do so. It is pointed out that suicide in a person who has been diagnosed with a terminal illness is no different than suicide for someone who is not considered terminally ill. Depression, family conflict, feelings of abandonment, hopelessness, etc. lead to suicide regardless of one's physical condition. Studies have shown that if pain and depression are adequately treated in a dying person as they would be in a suicidal non-dying person the desire to commit suicide evaporates. Suicide among the terminally ill, like suicide among the population in general, is a tragic event that cuts short the life of the victim and leaves survivors devastated.

It is feared that placing the discretion in the hands of any individual would be placing too much power in his hands and he may misuse such power. This fear stems largely from the fact that the discretionary power is placed in the hands of non-judicial personnel (any individual in this case). This is so because we do not shirk from placing the same kind of power in the hands of a judge (for example, when we give the judge the power to decide whether to award a death sentence or a sentence of imprisonment for life). Generally people who attempt suicide or want to commit are under a lot of emotional stress. For example a patient receiving chemotherapy might want to end his life because of the physical and mental trauma but once he feels better, he might change his mind. Decisions in case of such patients are fluctuate. Also relatives can use the law to achieve their own interests. In India, the crime rate is increasing faster than the population growth. The one main reason behind the crime rate is greed. The old people are very vulnerable.

The near kith and kin want to usurp their property and other possessions. We come across this in almost everyday in news papers. Once euthanasia is legalised, old people will become the main targets. A doctor will declare a patient terminally ill for a paltry some. It will have dangerous repercussions on the society. We should respect life. Life is the most precious thing the God has bestowed upon us.

A youth of our age, depressed to see his parents fight every night, depressed as he does not have a job and has the burden of his family on his shoulders, depressed as he failed in board exams, will not think twice before killing himself! And this will result in gross degradation of a human beings life. His family and society at large will lose an otherwise bodily and mentally healthy person whose rich experience in life and his own skills can be a great asset.

4. slippery slope argument
The slippery slope argument, in short, is that permitting suicide would over the years lead to a slide down the slippery slope and eventually we would end up permitting even non-voluntary and involuntary euthanasia.

5. mind, body and soul
. We are discussing here the rights of a very few people vs. the whole possibility of murders and suicides that can follow from such a law. Besides, if one understands the life and soul and how it works, one will understand that Euthenasia is actually irrelavant and unnecessary. The Spirit or Soul in us decides when to leave. When the MEST life (this physical universe) gets too challenging, the should carves in and gives up to find another body and to start afresh. That's the way the spirit/life works. So if that be the case, the death will come as soon as the Soul decides it. And the fact is that the Soul does not continue in a body a minute longer than it can bear to be there. One could argue about the pain of those around the suffering and dying person. But it's not of our selection that someone we love is suffering. It's a part of life. But legalizing this would mean a gaping hole that many can take advantage of.

In the end, we also would do well to remember the following words of Mahatma Gandhi:
Death is our friend, the truest of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties a defeated man.

So the outcome as it seems
It seems to me that suicide probably ought to remain illegal, because many people who attempt it (especially young people) are either a) not fully in charge of their faculties, b) treatable patients with one or another form of mental illness, and c) would probably thank us later for resisting their attempt. These aren't strong arguments (it can still be argued that suicide "doesn't hurt anyone but the doer"), but they are good enough for me. The state should do everything it can to discourage people from committing suicide. On the other hand, it shouldn't penalize people who attempt it and fail. If the 'crime' of suicide is punished, you run the risk of the old totalitarian joke: he tried to commit suicide, and failed, so they executed him.

So perhaps suicide should remain generally illegal (but not punishable), and there should just be an exception granted to people who are terminally ill and in excruciating pain (like L. Venkatesh). But doctors often disagree on what defines terminal illness. And while there will certainly be some cases where death is inevitable, there will be many cases where death is fairly far off in the future, and there is some hope, however small. Moreover, critics can object that there is always the possibility of a medical miracle -- that 1 in 10,000 chance that a patient will recover -- so isn't it worth keeping the patient alive in case that happens? Opening up the Right to Die as an exception in the law against suicide would only work if the likelihood of death were overwhelmingly high, and if the "miracle cure" argument were thrown out on a cost/benefit basis.

Thus, it seems like a viable argument to say that the right to die should remain generally illegal because of the confusion that could ensue if it were legalized. This is the status quo, and the suffering of people like Venkatesh is unfortunate, but perhaps justified because it does serve the greater common good.

On the other hand, if I could be convinced that doctors could specify the cases where euthanasia is the best option with upwards of 99% certainty (this would require a classification of terminal illnesses and probably the statistical ascertainment of survivability), then may be legalizing righ to die would also serve the common good.

The basic moral question that arises is whether by legalizing a person's right to die, we will degrade a human beings life and stop respecting human life. No one can deny that there is nothing more precious than the gift of life which every human being enjoys. Why then should man decide when his life should end? Most religious people believe that life is sacred and one should not waste time in planning about their death but planning about how to enjoy life. Terminating life is not an answer to pain. All along life's journey man will suffer pain whether it is physical or mental or emotional or psychological. Will legalization of right to die be done to relieve oneself from the physical pain only?A person weakened by illness may not be in a position to review his decision to kill himself. Decision to die by coming under some financial or social obligation is also very dangerous. Somewhere down the line we may end up violating the right to life while legalizing the right to death.

When life is woe and hope is dumb, the world says go! The grave says , come! Whose voice will you hear? Will you be a faint heart and say that I want the right to die or will you in your sorrow and misery and pain be a brave heart and say, dear god give me two more precious moments because I want to cherish the precious gift of life.

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