The Doctrine of Arbitrariness / Substantive Due Process III

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, […]

The Live Tweets Ailment II

There are always the traditionalists. They imagine Live Tweeters in Court when ADM Jabalpur was on going, and shiver at the thought. Ray CJI would have had none of it. The present Chief Justice seemingly does not subscribe to old world ideas. Juniors who have the time and the resources are travelling to SC every day […]

In Re: Ramachandra Guha on National Anthem in Cinema Halls

A Senior Advocate proclaimed recently: One wonders if ‘all present in the hall’ were not judicially urged to ‘stand up to show respect to the National Anthem’ whether there would be objections against playing of the Anthem itself. (Turns out: Yes!) This is specially important because very few have availed the opportunity to protest the […]

Jactitation of Marriage

Jactitation of marriage means persistent boasting of a marriage, falsely alleged to have taken place. The suit prays for a decree of perpetual silence on the subject. This is the only case in which a matrimonial suit can, as of right, be proceeded without prima facie proof of a marriage de facto. For the object […]

Kuttikanam / Seigniorage

In George Leslie v. State of Kerala, AIR 1970 Ker 21 the term ‘Kuttikanam’ was explained. It was held, ‘Kuttikanam’ is neither a fee nor a tax. A tax or fee is levied in the exercise of sovereign power. ‘Kuttikanam’ means Government’s share of the value of the reserved trees. It was further held by Mathew […]

India’s New Serial Killers II: Vijay Palande

Late Nineties, Vijay Palande had adopted an interesting identity – that of a waiter at the iconic Copper Chimney restaurant in Juhu. The job was ideal as it gave him the opportunity to keep a close watch on prospective victims while serving them their favourite dish. On one such occasion, he met a young engineer […]

Section 7(5) of The Arbitration Act I

One of the most controversial and interesting questions in contemporary Arbitration Law is ‘incorporation by reference’. It is a common practice in some industries, particularly shipping and construction, for the contractual relationship between the parties to be composed of several documents. It sometimes happens, a dispute arises with reference to one of these documents, while […]

The Finesse of a Trial Judge

Justice Arvind Kumar Mishra of Allahabad High Court commenting on (Retd.) Justice Shyam Lal, in Nupur Talwar v. State of U.P., [Criminal Appeal No. 293 of 2014]: “Learned Trial Judge has prejudged things in his own fashion, drawn conclusions by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story […]

The Doctrine of Arbitrariness / Substantive Due Process II

“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 […]

Video Conferencing in Matrimonial (Cheque) Disputes II (I)

Recently in M/s. Meters and Instruments Private Ltd. v. Kanchan Mehta, [Criminal Appeal No. 1731 of 2017] Goel and Lalit JJ observed: “There appears to be need to consider categories of cases which can be partly or entirely concluded ‘online’ without physical presence of the parties by simplifying procedures where seriously disputed questions are not required […]

The Story of Justice Prabha Shankar Mishra

There was a Full Court Reference at Supreme Court on 7th August, 2012 in memory of Late Shri Prabha Shankar Mishra, Senior Advocate. It was briefly mentioned, P.S. Mishra was appointed as a Judge of Patna High Court in 1982; was transferred to Madras High Court in 1990; was thereafter appointed as Chief Justice of […]

Section 13B of The Hindu Marriage Act III

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 […]

Section 12(5) of The Arbitration Act I

An Arbitrator’s appointment was argued to be bad for the reason of Item 1 of the Seventh Schedule read with Section 12(5) of The Arbitration Act that ensures if the Arbitrator is an employee, consultant, advisor or has ‘any other’ past or present business relationship with a party to the Arbitration he becomes ‘ineligible’ to […]

The Doctrine of Arbitrariness / Substantive Due Process I

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 […]

The Discomfort of ADM Jabalpur I

ADM Jabalpur must be confined to the dustbin of history. Hon’ble Justices Aftab Alam and A.K. Ganguly in Rajnath Chauhan, (2010) 14 SCC 209 were clear on that conclusion. Two months after the pronouncement of Judgment, Times of India carried the following headline: ADM Jabalpur is a flop movie, only remembered fondly for the stellar […]

The Comfortable Life of Gold Smugglers II

On 19.11.2002, Ms. Pushpa Lekhumal Tolani, of Indonesian Passport, carried with her, on her flight from London to New Delhi, 28 packages containing 44 items of jewellery worth Rs. 25 Lakhs. The competent authority confiscated her articles and imposed ‘fines and penalties’ worth Rs. 18 Lakhs. HC quashed the order. In an appeal by Directorate […]

The Question of Six Zeroes in Call No. 51

Former Delhi Excise Chief, Dr. Anup Kumar Srivastava received a reprieve from Supreme Court, recently. “There is no material evidence on record in order to bring home a charge of conspiracy against Respondent. There is no direct or circumstantial evidence to prove, Respondent has demanded any illegal gratification and has accepted or obtained any such […]

The Nature of Judicial Power: The Theory of Creative Interpretation

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 […]

The Doctrine of Widest Construction

“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 […]

Implied Exclusion of Part I of The Arbitration Act IV: The Shashoua Principle

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, […]

The Last Word

A Diversion for Lawyers and Others