While stating, ‘genesis’ of creamy layer principle is to be found in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 Hon’ble Justice R.F. Nariman quoted a few words of Hon’ble Justice Krishna Iyer in Jarnail Singh v. Lachhmi Narain Gupta, [Special Leave Petition (Civil) No. 30621 of 2011]. Of course, Ray CJ had […]
Read more "The Revival of Ray VI"In Allied Motors, (2012) 2 SCC 1 reference was made to the celebrated Judgment of Privy Council in Nazir Ahmad, AIR 1936 PC 253: “Where a power is given to do a certain thing in a certain way, the thing must be done in that way, or not at all. Other methods of performance are […]
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 company, care, help, comfort, guidance, solace and affection of deceased. With respect to a spouse, it would include sexual relations with deceased spouse; parental consortium is granted upon premature death of a […]
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"Parliament often begins to legislate with remarkable vigor but about the same time it gives up the attempt to govern. It begins to lay down general rules, entrusting its working to Officials/Secretaries of State/Boards of Commissioners/Law Courts, who are endowed with new statutory powers. Once or twice upon a time, Ecclesiastical Courts could pronounce a divorce, ‘a mensa et […]
Read more "A Mensa Et Thoro"“It is a well settled position of law, testimony of a witness cannot be discarded in toto merely due to presence of embellishments or exaggerations. Doctrine of ‘falsus in uno, falsus in omnibus’, which means ‘false in one thing, false in everything’ has been held to be inapplicable in Indian scenario, where tendency to exaggerate […]
Read more "Falsus in Uno, Falsus in Omnibus"“A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.” It was the Judgment of Holmes J in Schenck v. United States, 249 US 47 at 52 (1910) that gave rise to the test of ‘clear and present danger’ for determining whether restrictions on […]
Read more "Clear and Present Danger"Shyam’s Offer Shyam also met Karna and in attempt to avert war told him what no one else had told him. ‘Know that your birth mother is Kunti. By law, you are the eldest son of the man she married, Pandu. This makes you, by law, the eldest Pandava, with full rights to Pandu’s kingdom […]
Read more "Consistent Loyalty v. Contextual Thinking"The Doctrine of Absolute Territorial Sovereignty is most often identified with an opinion prepared in 1895 by the 41st Attorney General of the United States, Judson Harmon, in response to a request by the Department of State for advice concerning a dispute with Mexico over the use of waters of the Rio Grande. Pursuant to […]
Read more "The Harmon Doctrine"Witnessing Padmaavat unfold on screen, on its first day of release, was unique, especially since your smart phone kept reminding you of persistent violence. The casual viewer may have even ignored a woman threatening to immolate herself or even a policemen who stood guard, but the skeptic whispered if a riot broke out… on which […]
Read more "The Last Word on Padmaavat"Two months ago, Judges 2-3-4-5 of Supreme Court wrote a long letter to the Chief Justice, complaining of assignment of Benches without any rational basis. Last Friday [*January 12, 2018*], the Judges called a Press Conference, irreversibly provoked by the Bench chosen by the Master of the Roster [Chief Justice of India], to hear a plea […]
Read more "An Alleged Judicial Crisis on Swami Vivekananda’s 155"TOYOTA JIDOSHA KABUSHIKI KAISHA launched the world’s first hybrid car, ‘Prius’, in Japan in 1997. In India, the car was released in 2009 and until that point of time Toyota had not obtained registration of the mark ‘Prius’ in the Indian jurisdiction. M/S PRIUS AUTO INDUSTRIES LIMITED had got the mark ‘Prius’ registered way back […]
Read more "The Goodwill in Passing Off Actions: The Toyota Prius Story"In July, 2017 a Bench of Three in Nithya Anand, (2017) 8 SCC 454 speaking through Justice A.M. Khanwilkar disapproved of the “first strike” principle developed in Surya Vadanan, (2015) 5 SCC 450. It had been argued, since the mother had not sought custody of the child by approaching any competent Indian Court prior to […]
Read more "The “First Strike” in Child Custody Battles II"Hon’ble Justice R.F. Nariman has now clarified, a Majority in Triple Talaq Judgment (3/5) held, arbitrariness in sense of manifest arbitrariness would apply to negate legislation under Article 14. “In so far as ‘manifest arbitrariness’ is concerned, it is important to advert to Majority Judgment of this Court in Shayara Bano v. Union of India, […]
Read more "The Doctrine of Arbitrariness / Substantive Due Process III"“In State of A.P. v. McDowell & Co., (1996) 3 SCC 790 a 3 Judge Bench of this Court held that an enactment could be struck down, if it is being challenged as violative of Article 14, only if it is found that it is violative of the equality clause, equal protection clause or violative […]
Read more "The Doctrine of Arbitrariness / Substantive Due Process II"My Lord, Is the statutory period of six months prescribed under Section 13B(2) of The Hindu Marriage Act, 1955 mandatory or directory and if directory can same be dispensed with, exercising power under Article 142? Before 2 Judges in Manish Goel, (2010) 4 SCC 393 the question was not raised: “The statutory period of six […]
Read more "Section 13B of The Hindu Marriage Act III"Abhinav Chandrachud is not incorrect in noting, Doctrine of ‘Fairness’/‘Non-Arbitrariness’ laid the foundation of Substantive Due Process in our country. Justice Nariman supports this view. In a richly cited CJI K.G. Balakrishnan Judgment [2010] it indeed was held, ‘Substantive Due Process’ is a part of Indian Constitutional Jurisprudence. 5 years later, in Rajbala v. Haryana, (2016) 2 SCC […]
Read more "The Doctrine of Arbitrariness / Substantive Due Process I"My Lord, Section 2(1)(d) of The Protection of Children from Sexual Offences Act, 2012 should engulf and embrace, in its connotative expanse, the mental age of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person, who even has crossed […]
Read more "The Nature of Judicial Power: The Theory of Creative Interpretation"“The jurisprudential basis for the ‘rule of widest construction’ is the hallowed belief that a Constitution is drafted with an eye on future providing a continuing framework for exercise of governmental power. Therefore, it must be elastic enough to meet new social, political and historical realities often unimagined by the framers of the Constitution. Chief […]
Read more "The Doctrine of Widest Construction"“Prior to the decision in Taylor v. Caldwell, (1861-73) All ER Rep 24 law in England was extremely rigid. A contract had to be performed, notwithstanding the fact that it had become impossible of performance, owing to some unforeseen event, after it was made, which was not the fault of either of the parties to […]
Read more "Section 56 of The Indian Contract Act, 1872 II"
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