Compensatory Jurisprudence of Constitutional Courts XIII : Res Ipsa Loquitur II

State Commission relied on principle of ‘res ipsa loquitur’ to affix liability for defect in an airbag system, having regard to nature of collision. National Commission affirmed this finding referring to certain photographs, which showed substantial frontal damage. We do not find any reason to interfere. We are dealing with a case where in a […]

Political Vendetta

Bhagwati, CJ in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 observed, a complaint being initiated by reason of political vendetta is not in itself a ground for quashing criminal proceedings. It is well-established, a criminal prosecution, if otherwise justified and based upon adequate evidence, does not become vitiated on account of mala […]

Disciplinary Proceedings VIII

Anil Kumar Upadhyay was serving as a Head Constable (Ministerial) in 15th Battalion of Sashastra Seema Bal, Bongaigaon. He was charged under Section 43 of The Shashastra Seema Bal Act, 2007 for entering Mahila Barrack at around 00:15 AM on intervening night of 14th-15th April, 2013. He was imposed punishment of ‘removal from service’. His […]

Medical Negligence and Consumer Law III

Dr. Harish Kumar Khurana v. Joginder, (2021) 10 SCC 291 held, hospital and doctors are required to exercise sufficient care in treating patients in all circumstances. However, in an unfortunate case, death may occur. It is necessary, sufficient material on medical evidence is available to conclude: death is due to medical negligence. A medical practitioner […]

Review of Death Penalty XXVI

Having regard to circumstances, preceding and following deceased being last seen together with accused, Court has no hesitation in holding, prosecution had proved beyond reasonable doubt all circumstances, so conclusive as to rule out possibility of any other hypothesis except guilt. We deem it proper to commute Death Sentence to Life Imprisonment. The only […]

Disciplinary Proceedings VII

M. Duraisamy was serving as a Postal Assistant. He committed fraud and admitted so. M. Duraisamy deposited entire defrauded amount. He was imposed penalty of ‘removal’. Central Administrative Tribunal modified punishment from ‘removal’ to ‘compulsory retirement’. Chairman & Managing Director, V.S.P. v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569 observed, once all procedural […]

Domain Name I

According to Snapdeal, by offering for registration, domain names which include ‘Snapdeal’, Domain Name Registrars (DNRs) are facilitating infringement of Snapdeal’s registered mark and are also themselves infringers within meaning of Sections 28 and 29 of The Trade Marks Act, 1999. If domain names are deceptively similar to ‘Snapdeal’, GoDaddy is indulging in infringement of […]

Res Ipsa Loquitur I

The maxim ‘res ipsa loquitur’ is resorted to when an accident is shown to have occurred and cause of accident is primarily within knowledge of Defendant. The cause of accident being unknown does not prevent Plaintiff from recovering damages, if proper inference to be drawn from circumstances which are known is: it was caused by […]

Promissory Estoppel IX

It is abundantly clear, Principle of Promissory Estoppel cannot be invoked for enforcing promises in teeth of provisions of law [Motilal Padampat Sugar Mills, (1979) 2 SCC 409; Amrit Banaspati Co. Ltd., (1992) 2 SCC 411; Bangalore Development Authority v. R. Hanumaiah, (2005) 12 SCC 508; State of Gujarat v. Arcelor Mittal Nippon Steel India […]

Preventive Detention Statute III

The distinction between a disturbance to ‘law and order’ and a disturbance to ‘public order’ has been clearly settled by a Constitution Bench in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740. Court has held, every ‘disorder’ does not meet threshold of a disturbance to ‘public order’, unless it affects community at […]

The Doctrine of Basic Structure III

“Basic Structure Doctrine is applicable in Kenya” had only Lady Justice, Fatuma Sichale’s Dissent. My Lord, Independent Electoral and Boundaries Commission v. David Ndii, Petition No. 12 of 2021 before Supreme Court of Kenya at Nairobi? 6-1, Friend. Lady Justice, P.M. Mwilu, Deputy Chief Justice & Vice-President of Supreme Court of Kenya: If there were […]

Right to Property

While right to property is no longer a fundamental right [The Constitution (Forty Fourth Amendment) Act, 1978], right against deprivation of property, unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A. Nobody can be deprived of liberty or property without due process or authorization of law. The […]

Referred to Larger Bench XXVII: The Drastic Power of Rejecting a Plaint IV

A party should not be penalized for failing to adopt legal proceedings when facts or documents have been wilfully concealed from him. A party who had acted fraudulently should not be given benefit of limitation, running in its favor, by virtue of such frauds [Pallav Sheth v. Custodian, (2001) 7 SCC 549]. Section 17 of […]

Abandonment

It is fundamental, whenever a material alteration takes place in terms of the original contract, on account of any act of omission or commission on part of one party, it is open to the other party not to perform the original contract. This will not amount to abandonment. Moreover, abandonment is normally understood in context […]

Question of Law

Phrases – such as: ‘question of law’ – are open textual expressions, used in statutes to convey a certain meaning which Legislature would not have intended to be read in a pedantic manner. When words allow narrow as well as wide interpretations, Courts have developed art and technique of finding correct meanings by looking at […]

Forum Shopping II

Predominantly, Indian Judiciary has time and again reiterated, ‘forum shopping’ take several hues and shades but concept of ‘forum shopping’ has not been rendered an exclusive definition in any Indian statute. Indian Judiciary’s observation and obiter dicta has aided in streamlining concept of ‘forum shopping’ in Indian legal system. Court has condemned practice of ‘forum […]

Referred to Larger Bench XXVI: Offence

The expression ‘offence’ in Section 19 of The Protection of Children from Sexual Offences Act, 2012 would include all ‘offences’ under The Protection of Children from Sexual Offences Act, 2012 including ‘offence’ under Section 23. In our society, victims of ‘sexual offence’ are, more often than not, treated as an ‘abettor’, if not ‘perpetrator’, even […]

Ratio Decidendi III / The Revival of Ray LXXXIII

As to what is ratio decidendi has been succinctly explained by this Court in Regional Manager v. Pawan Kumar Dubey, (1976) 3 SCC 334. “Indeed, we do not think, principles of law declared and applied so often have really changed. But, application of same law to differing circumstances and facts of various cases, which have […]

Promissory Estoppel VIII

State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi, 2020 SCC OnLine SC 968 observed, Doctrine of Legitimate Expectation, a public law concept, is premised on principles of fairness and non-arbitrariness in State action. Doctrine of Legitimate Expectation emerges as a facet of Article 14. Promissory Estoppel, being a private law concept, can be invoked if […]

Hijab

A person who seeks refuge under umbrella of Article 25 has to demonstrate not only ‘essential religious practice’ but also its engagement with constitutional values. There is absolutely no material placed on record to prima facie show wearing of Hijab is a part of an ‘essential religious practice’ in Islam. It is not so, if […]

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