Contra Proferentem is not a principle of universal application and it does not merit applicability in case of commercial contracts, for a clause in a commercial contract is bilateral and has mutually been agreed upon. Any question as to unconscionableness of a stipulation contained in an agreement would probably arise for consideration only if it […]
Read more "The Contra Proferentem Rule VIII"Learned Arbitrator reserved his Arbitral Award on 28.07.2012 but pronounced it only on 16.03.2016. Significantly, no explanation worth the name was offered by him for the delay. Passage of time invariably debilitates frail human memory. Even if detailed notes were made, they would be a poor substitute to what is fresh immediately after conclusion of […]
Read more "Dilatory Arbitrators"It is an eye-opener for one and all. In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, A.N. Ray, CJ (as he then was), noted, varying needs of different classes of persons require special treatment. It was cautioned, equality cannot mean absolute equality. In other words, equality would only mean parity of treatment […]
Read more "Transgender Protection Cell / The Revival of Ray XCVIII"Vaneeta Patnaik is a Faculty Member of West Bengal National University of Juridical Sciences. Dr. Nirmal Kanti Chakrabarti was appointed as a Vice Chancellor of NUJS on 03.07.2019. September, 2019 – Dr. Nirmal insisted Vaneeta should accompany him for dinner. He even touched Vaneeta in a manner that made her extremely uncomfortable. October, 2019 – […]
Read more "Dr. Nirmal Kanti Chakrabarti"Well thought of and planned policies can crumble, like a sandcastle, at first hit of waves, if there isn’t a strong administration in place to implement them. Membership in a Public Service Commission is a position of significant constitutional trust and responsibility. Any conduct on part of its Members that appears subjective or raises suspicion […]
Read more "Leakage of Question Paper of Assistant Engineer (Civil) Mains Examination"It may be necessary to have a look at Section 133 of The Customs Act, 1962 which is analogous to Section 186 of The Indian Penal Code, 1860. In our considered opinion, the expression ‘intentionally’ used in Section 133 and the expression ‘voluntarily’ used in Section 186 connote the same meaning. Court while construing the […]
Read more "Intentionally, Voluntarily"The jurisprudential divide between irregular and illegal appointments is neither artificial nor academic Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 held, mere technical irregularities in appointment processes, in absence of evidence of illegality, arbitrariness or fraud, cannot be a ground to undo appointments, especially when appointees are not at fault. Vikas Pratap […]
Read more "The Baishakhi Principle"Democracy, in its essence, means a society governed by elected representatives of people based on universal adult franchise in a free and transparent manner. Thus, free and fair elections go to the root of a functional democracy. Lok Prahari v. Union of India, (2018) 4 SCC 699 summarized the legal and contextual position regarding non-disclosure of assets […]
Read more "Consequential or Inconsequential Import"Air Force has continually opened new Combat Air Force Roles for Women as Fighter Pilots, Helicopter Pilots, et cetera. It does not stand to reason, when Women Officers like Captain Ojaswita Shree, Major Dwipannita Kalita and Flight Lieutenant Shivangi Singh can operate behind enemy lines with all expected risks, why Women Officers in times of […]
Read more "Women Officers"The Chief Justice of India bears a significant moral responsibility to ensure, Judiciary functions in a transparent, efficient and constitutionally appropriate manner. The Chief Justice of India is clearly an important person in maintaining institutional interest and credibility. The Chief Justice of India owes a duty to keep our justice delivery system pure, clean and […]
Read more "Where Eagles Dare"The only purpose of entrusting work of adjudicating Disqualification Petitions to a Speaker/Chairman was to avoid dilly-dallying in Courts or the Election Commission’s office. The question we have to ask ourselves is, whether the trust which Parliament entrusted has been adhered to? Kihoto Hollohan v. Zachillhu, 1992 Supp (2) 651 was not expected to anticipate, […]
Read more "Dilly-Dally"Secunderabad Club v. CIT, 2023 INSC 736 had occasion to delineate how to cull out ratio decidendi and identify principles which have precedential value. Further, a simple test has been invoked by this Court. Professor Eugene Wambaugh’s ‘Inversion Test’ mandates, to determine whether a particular proposition of law is part of ratio decidendi, either that […]
Read more "Ratio Decidendi IV"R.M. Malkani v. State of Maharashtra, (1973) 2 SCR 417 is locus classicus on determining admissibility of a tape-recorded conversation. When this Court decided Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 and R.M. Malkani, devices like tape-recorders and microphones were carefully placed in a space wherein conversations could be secretly recorded […]
Read more "Spill the Beans"We reiterate, suspicion, however strong, cannot take place of evidence. – Hon’ble Justice Ahsanuddin Amanullah, P. Nallammal v. State, [Criminal Appeal No. 2489 of 2025]. Our disagreement is on culpability of P. Nallammal, Wife of since deceased A.M Paramasivam. There is no doubt, mere registration of ‘disproportionate assets’ in name of a Public Servant’s Relative […]
Read more "Referred to Larger Bench XL: Minister’s Spouse"We observe a tendency on part of Members of Bar to rely upon a large number of decisions, whether relevant or irrelevant. Multiple decisions are cited on same proposition of law. This makes hearing time-consuming. Courts permit written submissions. Very long written submissions come on record. A high monetary stake should not result in unnecessarily […]
Read more "Ordinary Man"Manoj Parihar v. State of Jammu and Kashmir, (2022) 14 SCC 72 opined, Doctrine of Prospective Overruling must be exercised in explicit terms and therefore, law declared by this Court would have a retrospective effect unless stated otherwise. It would not be an absolute rule, prospective overruling or prospective operation of a decision must be […]
Read more "The Doctrine of Prospective Overruling III"Section 15(2) of the Copyright Act, 1957 clarifies, copyright protection in any ‘design’, which is capable of being registered under The Designs Act, 2000 but is not registered, would terminate once such ‘design’ is applied to any article and reproduced in excess of 50 times by an industrial process either by owner or a licensee. […]
Read more "The Drastic Power of Rejecting a Plaint VIII"“When you learn a language, you don’t just learn to speak and write a new language. You also learn to be open-minded, liberal, tolerant, kind and considerate towards all mankind.” Before language became a tool for learning, its earliest and primary purpose was, and will always remain to be, communication. Coming back to our case, […]
Read more "Language of Courts II"A treasure trove of questions, hidden in seemingly innocuous and plain language used in Article 200, has opened up. The question of whether Governor is bound to act on aid and advice of Council of Ministers in all circumstances, fell for consideration of this Court in Samsher Singh v. State of Punjab, (1974) 2 SCC 831. It is […]
Read more "As Soon As Possible / The Revival of Ray XCVII"Court has, on multiple occasions, noted, a contractual clause which bars payment of interest is interpreted differently under 1940 Act and 1996 Act. In fact, while deciding cases under 1996 Act, Court has been slow to rely on principles laid down under 1940 Act, considering legislative incorporation of Arbitrator’s power to grant interest through Section […]
Read more "Section 31(7) of The Arbitration Act XI"
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