A. “Albert Einstein spoke of change when he said, ‘the world as we have created is a process of our thinking. It cannot be changed without changing our thinking’.” – Hon’ble Chief Justice of India, Hon’ble Justice T.S. Thakur, Board of Control for Cricket v. Cricket Association of Bihar, (2016) 8 SCC 535. B. “We would […]
Read more "Albert, Albert Einstein"“The most significant impact of the Doctrine of Separation of Powers is seen and felt in terms of the institutional independence of the Judiciary from other Organs of the State. Judiciary, in terms of personnel, the Judges, is independent. Constitutional Bench Judgments have uniformly ruled that the Doctrine of Separation of Powers, though not specifically […]
Read more "The Doctrine of Separation of Powers"Hon’ble Justice L. Nageswara Rao in State of Tamil Nadu v. G. Hemalathaa, Civil Appeal No. 6669 of 2019 quoted Chief Justice John Roberts in Caperton v. A.T. Massey, 556 U.S. 868 (2009). “Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the […]
Read more "Hard Cases Make Bad Law"Arbitration Agreements need not be a formal contract. Section 7(4)(b) states that an Arbitration Agreement can be derived from exchange of letters, telex, telegram or other means of communication, including through electronic means. What is required to be ascertained is the intention of the parties to refer their disputes or differences to Arbitration. The intention […]
Read more "Non-Signatories to Arbitration II"“When a Court ignores the binding precedent of a Larger Bench, the Judgment so delivered is held to be per incuriam and has no precedential value. The principle of per incuriam has been developed by the English Courts in relaxation of the rule of stare decisis. In practice per incuriam is per ignoratium. See, Paragraph […]
Read more "Per Incuriam II"“In Kunhayammed, (2000) 6 SCC 359 this Court held: “The logic underlying Doctrine of Merger is that there cannot be more than one Decree or Operative Orders governing the same subject-matter at a given point of time. Doctrine of Merger is not of universal or unlimited application.” This position of law has been recently affirmed […]
Read more "The Doctrine of Merger II"Uncontrolled and indiscriminate entry of persons, Hindu or Muslim, from Pakistan into India or from India to Pakistan, is fraught with the possibility of espionage and sabotage. When employed for espionage, care is taken to see that he does not know who his real employers are but knows only the name of his contact man, […]
Read more "The Golden Lasso of Truth"“Doctrine of Merger would come into play as exposited in Kunhayammed, (2013) 10 SCC 655 wherein a Three-Judge Bench of this Court opined that once a Special Leave Petition has been granted, the doors of the Appellate Jurisdiction of this Court have been let open and any Order passed thereafter would be an Appellate Order […]
Read more "The Doctrine of Merger I"“The legal position as to when a Non-Signatory to an Arbitration Agreement can be impleaded and subjected to Arbitration Proceedings is no more res integra. In the case of Chloro Controls India Private Limited, (2013) 1 SCC 641 a Three-Judge Bench of this Court opined that ordinarily, an Arbitration takes place between the persons who […]
Read more "Non-Signatories to Arbitration I"Indians have been taught the lesson, and rightly so, that consensual intercourse, even if not procreative, is inherent for the enjoyment of life and liberty of every individual and is protected under constitutional morality. Mr. XYZ has come up with a film script. Cut short, the script is about an 18-year old Indian, who gets […]
Read more "#THE377DEBATE III : My Lord, Africa"“The principle of ‘incorporation by reference’ of an Arbitration Clause, from another document or contract is a well-established principle in Arbitration Jurisprudence [Clements v. Devon Country Insurance Committee, [1918] 1 KB 94; Macleod Ross and Co. Ltd. v. Compagnie d’ Assurances Generales L’Helvetia of St Gall, [1952] 1 Lloyd’s Rep 12 (CA)]. This principle has […]
Read more "Section 7(5) of The Arbitration Act IV"“Two Judge Bench in State Bank’s Staff Union (Madras Circle) v. Union of India, (2005) 7 SCC 584 had occasion to examine the concept. Further in Jay Mahakali Rolling Mills v. Union of India, 2007 (12) SCC 198 following has been laid down: “Retrospective means looking backward, contemplating what is past, having reference to a […]
Read more "Retrospective v. Retroactive"Daya Kishan Joshi, (2018) 11 SCC 642; Surendra Pandey (2015) 13 SCC 625; Lord Denning. “He fell off the roof of the bus accidentally and died. Merely because the deceased was coming down the roof of the bus after having his meal, cannot be considered in isolation and interpreted so myopically to hold that he […]
Read more "The Doctrine of Notional Extension"Security Clearance is Mandatory – The Cable Television Network (Amendment) Rules, 2012. My Lord, Principle of Natural Justice, Fair Play Overlooked? “In similar circumstances, in Ex-Armymen’s Protection Services Private Limited, (2014) 5 SCC 409 the following was laid down: “What is in the ‘interest of national security’ is not a ‘question of law’. It is […]
Read more "Principles of Natural Justice IV"45 Years of E.P. Royappa Determination of Equation of Pay Scales: Government, Experts; Not Courts [SAIL, (2011) 11 SCC 122; S.C. Chandra, (2007) 8 SCC 27]. Determinative Factors in Equation of Posts: a) Prescribed Minimum Qualification; b) Nature and Duty [E.P. Royappa, (1974) 4 SCC 3]; c) Responsibility and Power; Salary [P.K. Roy, AIR 1968 SC […]
Read more "Principle of Parity II / The Revival of Ray XI"“Equality means parity of treatment under parity of conditions. The rule of parity is the equal treatment of equals in equal circumstances.” – Chief Justice of India, Hon’ble Justice A.N. Ray, State of Kerala v. N.M. Thomas, AIR 1976 SC 490. “The imposition of a penalty in disciplinary proceeding lies in the sole domain of […]
Read more "Principle of Parity I"“Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 explained the concept of ‘prejudice caused to the accused’ and held: “Trial is not vitiated unless the accused can show substantial prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the […]
Read more "Principles of Natural Justice III"[In Allied Motors, (2012) 2 SCC 1 reference was made to the celebrated Judgment of the Privy Council in Nazir Ahmad, AIR 1936 PC 253 wherein the principle has been enunciated “that where a power is given to do a certain thing in a certain way, the thing must be done in that way, or […]
Read more "Lord Roche II / The Revival of Ray IV"“In legal parlance, ‘consortium’ is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased. With respect to a spouse, it would include sexual relations with the deceased spouse; parental consortium is granted to the […]
Read more "Consortium I"Navtej Singh Johar v. UOI, [Writ Petition (Criminal) No. 76 of 2016] was filed for declaring Section 377 to be unconstitutional. It was held by: Dipak Misra CJI and A.M. Khanwilkar J. The phrase ‘against the order of nature’ has neither been defined in any provision of the IPC. What is ‘against the order of nature’? Procreation […]
Read more "#The377Debate II : 06.09.2018"