Albert, Albert Einstein

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 […]

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The Doctrine of Separation of Powers

“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 […]

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Hard Cases Make Bad Law

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 […]

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Non-Signatories to Arbitration II

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 […]

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Per Incuriam 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 […]

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The Doctrine of Merger 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 […]

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The Golden Lasso of Truth

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, […]

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The Doctrine of Merger I

“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 […]

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Non-Signatories to Arbitration 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 […]

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Section 7(5) of The Arbitration Act IV

“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 […]

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Retrospective v. Retroactive

“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 […]

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Principles of Natural Justice IV

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 […]

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Principle of Parity I

“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 […]

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Principles of Natural Justice III

“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 […]

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Consortium I

“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 […]

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#The377Debate II : 06.09.2018

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 […]

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