“Section 12(5) is a new provision which relates to the de jure inability of an Arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non-obstante clause in Section 12(5) the moment any person whose relationship with the parties or the Counsel or the subject matter […]
Read more "Section 12(5) of The Arbitration Act III"My Lord, Hon’ble Justice A.P. Sen View, Paragraphs 86-87, Express Newspapers v. Union of India, (1986) 1 SCC 133 = Majority View? Yes. “We, consider it apposite to refer to The Guardians of The Poor of The West Derby Union v. The Guardians of The Poor of The Atcham, (1889) 24 QBD 117. The question […]
Read more "Ratio Decidendi I"“In Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128 this Court held: “A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction, a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It […]
Read more "The Proviso II / The Revival of Ray XVI"“The NDPS Act carries a reverse burden of proof under Sections 35, 54. Section 35(2) provides, a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. Article 21 of the Constitution would be a hollow promise if the investigation were not to be […]
Read more "4 Kilograms of Opium"“STATUTES SHOULD BE CONSTRUED NOT AS THEOREM OF EUCLID… WORDS MUST BE CONSTRUED WITH SOME IMAGINATION OF THE PURPOSES WHICH LIE BEHIND THEM”: JUDGE LEARNED HAND. Gypsum (Calcium Sulphate Dihydrate): Natural Mineral. Gypsum Board / Drywall: Cellulosic Composite Material; Primary Raw Material = Calcium Sulphate Dihydrate + Cellulose; See, George J Venta, The Athena Sustainable […]
Read more "Euclid’s Theorem II"07.01.2019 My Lord, Teachers are Employees under Section 2(e) of The Payment of Gratuity Act, 1972? “No. Clearly Not. See, Ahmedabad Pvt. Primary Teachers’ Association, (2004) 1 SCC 755.” – Hon’ble Justice Abhay Manohar Sapre, Birla Institute of Technology v. State of Jharkhand, [Civil Appeal No. 2530 of 2012]. _____ 09.01.2019 My Lord, Teachers are […]
Read more "Section 2(e) of The Payment of Gratuity Act, 1972"“Appeal arises from the Judgment of a Learned Single Judge of High Court of Calcutta by which the Respondent’s Application for condoning a delay of 514 days in filing an Application under Section 34 of The Arbitration and Conciliation Act, 1996 was allowed. This Court needs to assess whether the benefit of Sections 5 and […]
Read more "Section 34(3) of The Arbirtration Act I"There is always much to study in a dissenting opinion; dissents in constitutional law matters are remembered/revered; dissents in criminal law matters produce intense causes of concern. How best can one ensure advancement of justice, if Supreme Court Judges disagree on a crime? There would be a day surely when 5/7/9 or perhaps 13 shall […]
Read more "Section 372 of The Code of Criminal Procedure, 1973 I"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"Section 15 of The Hindu Marriage Act, 1955: “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has […]
Read more "Section 5(1) + Section 15 of The Hindu Marriage Act"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"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 Shashoua Principle [Roger Shashoua v. Mukesh Sharma, 2009 EWHC 957 (Comm)] “When there is an express designation of the Arbitration venue as London and no designation of any alternative place as seat, combined with a supranational body of rules [i.e. ICC] governing the Arbitration and no other significant contrary indicia, the inexorable conclusion is, […]
Read more "Implied Exclusion of Part I of The Arbitration Act IV: The Shashoua Principle"SC in Mohapatra, (2002) 8 SCC 1 had accorded primacy to Hon’ble Chief Justice in consultative process for appointment of an Orissa Lokayukta. Justice Lokur in Chandrashekaraiah, (2013) 3 SCC 117 however confined law laid down in Mohapatra to the facts of that case only. It was held, views expressed by Chief Justice of High Court […]
Read more "Primacy of Views III: The Lokpal and Lokayuktas Act, 2013"My Lord, Difference between Amendment and Waiver, in context of The Indian Contract Act, 1872? Amendment It is settled law that an amendment to a contract being in the nature of a modification of the terms of the contract must be read in and become a part of the original contract in order to amount […]
Read more "Section 62 – Amendments and Section 63 – Waivers"“Purposive interpretation in a social amelioration legislation is an imperative, irrespective of anything else. This is eloquently brought out in Atma Ram, (1988) 4 SCC 284. How labour legislations are to be interpreted has been stated and restated by this Court time and again. In Surendra Kumar, (1980) 4 SCC 443, this Court reminded, semantic […]
Read more "Etymological Excursions in Bread & Butter Statutes"In Gibson v. Skibs, (1966) 2 All ER 478 it was held, “prima facie one would expect that when two different words, although practically synonymous in ordinary use, are employed in different parts of the same regulation dealing with the same kind of topic, they are intended to have some different meaning.” SC held in […]
Read more "Synonymous Words, Different Meanings"My Lord, 1997 Amendment to Section 28 of The Indian Contract Act, 1872 – Retrospective? No. “What emerges on a reading of the Law Commission Report together with the Statement of Objects and Reasons for the Amendment is that the Amendment does not purport to be either declaratory or clarificatory. It seeks to bring about […]
Read more "Section 28 of The Indian Contract Act, 1872"The rule of construction by reference to ‘contemporanea expositio‘ is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly expressed in Crawford on Statutory Construction […]
Read more "The Doctrine of Contemporanea Expositio I"Throughout the history of the use of the term in Latin, ‘prima facie’ meant only the most cursory, initial impression. It retained that meaning upon its adoption into colloquial English. The term ‘prima facie’ is used in the law both as an adjective and as an adverb. Common Law Courts which developed the judicial meaning […]
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