“It is clear that ‘serious allegations of fraud’ arise only if either of the two tests laid down are satisfied, and not otherwise. The first test is satisfied only when it can be said that the Arbitration Clause or agreement itself cannot be said to exist in a clear case in which the Court finds […]
Read more "Arbitrability of Fraud"A. “West German Consul said, he had received information that, similar charges had been made against Hans Muller in Lebanon and in Egypt.” – Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367. B. “On 15-9-1963, he left Delhi for Beirut under the name Donze Jean Claude, a French national. It […]
Read more "No Reservations, Lebanon"“We are reminded of the weighty observation of Justice V.R. Krishna Iyer in Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770. “We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the […]
Read more "The Revival of Ray XLI"“It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts [C.A. Rajendran, (1968) 1 SCR 721]. Similarly, the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such […]
Read more "Reservation in Appointment/Promotion"Writ Jurisdiction of Supreme Court may be resorted to when available remedies are exhausted [U.P. State Spinning Co. Ltd., (2005) 8 SCC 264]. This is essentially a ‘rule of policy, convenience and discretion’; it’s not a ‘compulsion’ [Mohammad Nooh, AIR 1958 SC 86; Harbanslal Sahnia, (2003) 2 SCC 107]. Supreme Court in Shrimath Balasaheb Patil […]
Read more "Writ Jurisdiction of Supreme Court / The Revival of Ray XXXII"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"“While the powers the High Court may exercise under its Writ Jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court’s Writ Jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its Writ Jurisdiction is […]
Read more "Writ Jurisdiction of High Courts"“Read, Read for now I shall say a lot. The evidence of my battle fought. The only way I shall make you learn, I tried a lot when it was my turn.” Hon’ble CJI Dipak Misra shall retire in less than 30 days. His words on word-craft shall be remembered too as his ‘last words’. […]
Read more "Pragmatic Realism v. Romantic Idealism v. Recluse Extremism"“A Writ of Quo Warranto cannot be issued on the basis of assumptions, inferences or suspicion regarding the factum of fulfillment of eligibility criteria. Being an extraordinary power, ordinarily such a Writ ought to be issued only on the basis of indisputable facts leading to a singular conclusion that the incumbent was in fact or […]
Read more "The Writ of Quo Warranto"“There can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance, the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To […]
Read more "The Test of Sustenance of Public Confidence in the Justice Dispensation System"My Lord, Is a Tribunal, whose Order is challenged under Articles 226, 227 of The Constitution, a Necessary Party? The issue has been considered in Jogendrasinhji, (2015) 9 SCC 1. The Judgment holds thus, the Tribunals, who in law are entitled to defend the Orders passed by them, are Necessary Parties and if they are […]
Read more "Writ Against Order of Tribunals I"“The Court must necessarily abide the parameters which govern a nuanced exercise of judicial power. Hence, where an effort is made to bring issues of governance before the Court, the basic touchstone on which the invocation of jurisdiction must rest is whether the issue can be addressed within the framework of law or the Constitution. […]
Read more "Battle of the Articles II: 32/226"“We record our deep sense of appreciation for the valuable assistance rendered by Mr. Harish Salve. According to him, while deciding the question as to whether the Writ lies under Article 226 against any person, juristic body, organization, authority etc., the test is to examine in the first instance the object and purpose for which […]
Read more "The Public Function Test, Mr. Harish Salve"“A Writ of Mandamus is an extraordinary remedy and is intended to supply deficiencies in law and is thus discretionary in nature. The issuance of a Writ of Mandamus pre-supposes a clear right of the applicant and unjustifiable failure of a duty imposed on an authority otherwise obliged in law to imperatively discharge the same. […]
Read more "The Writ of Mandamus II"My Lord, What is Mandamus? “Mandamus literally means a command. The essence of Mandamus in England was that it was a royal command issued by the King’s Bench (now Queen’s Bench) directing performance of a public legal duty. A Writ of Mandamus is issued in favour of a person who establishes a legal right in […]
Read more "The Writ of Mandamus I"“A Writ Court while deciding a Writ Petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the Writ Petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. In the case at hand, the employee was dismissed from service in […]
Read more "Stale Claims Before a Writ Court / The Chill of Death"“A Writ Court should ordinarily not entertain a Writ Petition, if there is a breach of contract involving disputed questions of fact. When an issue arises whether in a particular State there are toilets for school children and there is an assertion by the State that there are good toilets, definitely the Court can appoint […]
Read more "Writ Court Appointed Committees"“No question other than relating to Fundamental Rights will be determined in a proceeding under Article 32. The difference between Article 32 and 226 is that while an application under Article 32 lies only for the enforcement of Fundamental Rights, the High Court under Article 226 has a wider power to exercise its jurisdiction not only for the […]
Read more "Battle of the Articles I: 32/226"My Lord, Is a Writ Application maintainable against an Order of West Bengal Land Reforms and Tenancy Tribunal, refusing to initiate Contempt Proceedings against an Authority arrayed as a Respondent before the Tribunal? Yes. “Such a pristine question of law does not require any reference to the facts… We are unable to agree with the […]
Read more "Writ Against Order of Tribunals II"