Author: Rudrajyoti Nath Ray
The Nature of Judicial Power: Hon’ble Justice Dipak Misra
“When a law is enacted with retrospective effect, it is not considered as an encroachment upon judicial power when the legislature does not directly overrule or reverse a judicial dictum. The legislature cannot, by way of an enactment, declare a decision of the Court as erroneous or a nullity, but can amend the statute or […]
Read more "The Nature of Judicial Power: Hon’ble Justice Dipak Misra"Tender Law IV
“Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016 (8) SCALE 765 a Two-Judge Bench eloquently exposited… “We may add, the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. Constitutional Courts must defer to […]
Read more "Tender Law IV"Chamber Practices of Former Supreme Court Judges
Retired Hon’ble Chief Justice of India A.N. Ray, though expected to be President, one day, once said, as evidenced by George H. Gadbois, Jr, “An Indian Chief Justice, like the Lord Chief Justice, in England, should not take up any post-retirement positions.” Taking up a post-retirement position is one thing; soliciting one is quite another. […]
Read more "Chamber Practices of Former Supreme Court Judges"Section 8 of The Arbitration Act II: Arbitrability of Fraud
Fraud is a knowing misrepresentation of the truth or concealment of a material fact or abuse of a position of confidence to induce another to act to his detriment. Serious allegations of fraud may not be referred to Domestic Arbitrations. “When the case involves serious allegations of fraud, the dicta contained in N. Radhakrishnan, (2010) 1 […]
Read more "Section 8 of The Arbitration Act II: Arbitrability of Fraud"Monsters-In-Law III
Appellant-Husband was treated cruelly by Respondent-Wife. There were repeated threats of suicide [Pankaj Mahajan v. Dimple, (2011) 12 SCC 1]; levelling of disgusting accusations of indecent familiarity with a person outside wedlock [Vijaykumar v. Neela, 2003 (6) SCC 334]. Both are acts of cruelty within the meaning of The Hindu Marriage Act, 1955. Respondent-Wife wanted […]
Read more "Monsters-In-Law III"The Exquisite Corpse of Soumya II: Law and Other Things, 05.10.2016
[The following was first published here] It is murder, if the intentional infliction of bodily injury is sufficient in the ordinary course of nature to cause death. In February 2011, a day before her engagement ceremony, 23-year-old Soumya was injured, raped and robbed. She died a few days later, in a hospital, having never regained […]
Read more "The Exquisite Corpse of Soumya II: Law and Other Things, 05.10.2016"Monsters-In-Law II
A ‘domestic violence‘ within the meaning of The Protection of Women from Domestic Violence Act, 2005 is ‘gender neutral‘; physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. “Even sexual abuse may, in a given fact circumstance, be by one woman on another.” SC in Hiralal Harsora […]
Read more "Monsters-In-Law II"Judge Made Law: Fixed Term Sentences I
It was contended before SC in Vikas Yadav v. State of Uttar Pradesh, [Criminal Appeal Nos. 1531-1533 of 2015], under Section 302 of The Indian Penal Code, 1860 life is minimum and maximum is Death Sentence and therefore Court has a choice between the two and is not entitled to follow any other path. It would […]
Read more "Judge Made Law: Fixed Term Sentences I"Section 50 of The Arbitration Act I
“On a careful reading of Section 50 of The Arbitration Act, 1996, it is limpid that an appeal can lie if an order is passed refusing, to refer the parties to Arbitration as engrafted under Section 45, or to enforce a Foreign Award as envisaged under Section 48. Section 50(1)(b) has not been amended by […]
Read more "Section 50 of The Arbitration Act I"Synonymous Words, Different Meanings
In Gibson v. Skibs, (1966) 2 All ER 478 it was held, “prima facie one would expect that when two different words, although practically synonymous in ordinary use, are employed in different parts of the same regulation dealing with the same kind of topic, they are intended to have some different meaning.” SC held in […]
Read more "Synonymous Words, Different Meanings"A Legally Enforceable Debt II
To commit an offence, within the meaning of Section 138 of The Negotiable Instruments Act, 1881 there must be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. This is important to point out for sometimes cheques are post-dated. Notably, in Indus Airways Pvt. Ltd. v. Magnum Aviation […]
Read more "A Legally Enforceable Debt II"Experts II: Handwriting Experts
“The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. A Court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for […]
Read more "Experts II: Handwriting Experts"Section 28 of The Indian Contract Act, 1872
My Lord, 1997 Amendment to Section 28 of The Indian Contract Act, 1872 – Retrospective? No. “What emerges on a reading of the Law Commission Report together with the Statement of Objects and Reasons for the Amendment is that the Amendment does not purport to be either declaratory or clarificatory. It seeks to bring about […]
Read more "Section 28 of The Indian Contract Act, 1872"The Doctrine of Contemporanea Expositio I
The rule of construction by reference to ‘contemporanea expositio‘ is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly expressed in Crawford on Statutory Construction […]
Read more "The Doctrine of Contemporanea Expositio I"Tender Law III
“Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions, the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision […]
Read more "Tender Law III"The Exquisite Corpse of Soumya I
“Death of the deceased was occasioned by a combination of Injury No. 1 and 2, and complications arising therefrom including aspiration of blood into the air passages resulting in Anoxic Brain Damage. The same, in the opinion of the doctor (P.W. 64), had occurred due to the fact that the deceased was kept in a […]
Read more "The Exquisite Corpse of Soumya I"Right to Reproductive Health
“It is well established, right to life under Article 21 of the Constitution includes the right to lead a dignified and meaningful life and the right to health is an integral facet of this right. In Subhash Chandra Bose, (1992) 1 SCC 441 while dealing with the right to health of workers, it was noted, […]
Read more "Right to Reproductive Health"Section 482 of The Code of Criminal Procedure, 1973 I
Satyam, Shivam, Sundaram: Love Sublime Omniscience ≠ Judge Property Hon’ble Justice Krishna Iyer, Raj Kapoor, (1980) 1 SCC 43. Any attempt to go further than Raj Kapoor, (1980) 1 SCC 43 as regards issues relating to inherent powers of a High Court under Section 482 of The Code of Criminal Procedure, 1973 is ‘unwarranted’. In […]
Read more "Section 482 of The Code of Criminal Procedure, 1973 I"Moral Misconduct of an Arbitrator II
In Cochin Shipyard, Misra and Pant JJ specifically declined to enter upon a discussion pertaining to any moral misconduct of an Arbitrator or its relevance under The Arbitration Act, 1940. Recently, in Harish Chandra & Company v. State of Uttar Pradesh, [Civil Appeal No. 8829 of 2016] SC has held, “One cannot dispute the legal […]
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