Call For PapersLaw School News

NLIU Cell for Law and Technology (NLIU-CLT) is inviting submissions for its Book on Artificial Intelligence and Law.

About NLIU, Bhopal

National Law Institute University (NLIU), Bhopal has been ranked as one of the best universities in India and is considered as one of the premier legal institutions since its establishment in 1997. NLIU is recognized by the University Grants Commission and the Bar Council of India. Our mission is to develop and nurture the intellect for the betterment of the nation and humanity through Law and Justice.

About NLIU-CLT

The Cell for Law and Technology (NLIU-CLT) was established in October 2019 at the National Law Institute University, Bhopal. The Cell aims to create a platform to raise awareness about the interface of technology and law. The depiction of societal effects of technology in science fiction and other media paved the way for the formation of the Cell.

When it comes to the intricate interactions between technology and legal policy, the Cell wants to be ahead of the curve. It has been continuously taking efforts to engage in a variety of activities to keep up with its vision. And one of the ways through which the Cell targets achieve its vision is by publishing the Book on Artificial Intelligence and Law that offers a platform for students, industry experts, professionals and academicians to express their ideas and put in motion a dialogue on the intersection between Artificial Intelligence and law.

Call for Chapters

NLIU-CLT is inviting submissions for its Book on Artificial Intelligence and Law. The theme of the Book is Artificial Intelligence and its legal implications. The authors and target audience of this book shall be academicians, researchers, policymakers, lawyers, librarians, practitioners, research scholars, IT professionals, intellectuals and students.

Contributors are requested to submit their abstracts on the link provided in the ‘Submission Procedure’ head by December 10, 2022. The authors of the selected abstracts will be intimated by December 15, 2022. Thereafter, authors shall submit the full chapters by January 15, 2023.

Submission Guidelines

  • Co-authorship of a maximum of two persons is permitted.
  • The abstract should be between 200-350 words.
  • We accepts submissions under the following categories:

    Articles: 3000-6000 words.

    Case Report/ Commentary: 2500-3000 words.

    Word limit is including tables, figures, abstract, citations and references.

  • All submissions must be in Times New Roman, font size 12, spacing 1.5, Margins: Left 1 Inch, Right 1 Inch, Top 1 Inch, and Bottom 1 Inch.
  • Citations must strictly conform to the standards laid down in the Oxford University Standard for Citation of Legal Authorities (4th ed., 2012).
  • Co-authorship of a maximum of two persons is permitted.
  • The author(s) bear sole responsibility for the accuracy of facts, opinions or views stated in the submitted Manuscript.
  • The manuscript must be politically neutral and must not be in conflict with the general guidelines.
  • The language used must not be unparliamentary, abusive or result in disrepute of any third person.
  • The Editorial Board does not accept plagiarized content and in case of gross plagiarism found in the contents of the submitted manuscript, the manuscript shall be subject to rejection.
  • All moral rights shall vest with the author(s).
  • Manuscripts not in conformity with these guidelines may be rejected at the sole discretion of the Editorial Board whether before or after undergoing the procedure of blind peer-review. The Editorial Board reserves the right to send the manuscripts back to the authors for any modification(s) at any stage, in the event of non-conformity with any of the submission guidelines.
  • The Editorial Board may, in its absolute discretion, waive any of the above rules or amend the process. In case of any dispute or ambiguity, the decision of the Editorial Board shall be final and binding.

Submission Procedure

Abstract

  • Abstracts should be submitted here.
  • The deadline for abstract submission is December 10, 2022.
  • The authors of the selected abstracts will be intimated by December 15, 2022.

Chapter

  • Manuscripts should be submitted at clt@nliu.ac.in.
  • The authors should submit the full chapters by January 15, 2023. Manuscripts will go through a double-blind peer review editorial process.
  • Authors are requested to not put their names anywhere in the main manuscript.
  • All entries should be submitted in .doc or .docx format.

Important Dates:

Abstract Submission Deadline: December 10, 2022

Full Chapters Submission Deadline: January 15, 2023

Contact Details:

Convenor: Sharqa Tabrez, Contact no.: +91 7667505767

Co-Convenor: Saloni Agrawal, Contact no.: +91 7694047599

E-mail ID: For any queries, please feel free to reach out at clt@nliu.ac.in

Note: There are no submission or acceptance fees for manuscripts.

Op EdsOP. ED.

Life has come full circle for me.  When I wrote my book “How Gourango Lost His O”, published by EBC, I had made public my spat with my dear friend Sumeet Malik for refusing to publish an article I had penned on how the Supreme Court was unravelling the edifice of labour laws.  Who would have thought that a day would come when I would be invited to write a piece for the SCC Blog and that too on the auspicious occasion of India’s 75th Anniversary.  So here, I write 75 random thoughts about the Bar and the Bench to commemorate the 75 years that India has enjoyed her freedom.

 

  1. Out-dated Modes of Address: ‘Lordship’ is as colonial as it gets. Justice Muralidhar and Justice Bhat made a request to abjure from such forms of address, so did the Bar Council of India.  Nothing happened!
  2. Coats, Gowns and Bands: The legal couture is also so not Indian climate friendly.
  3. Wigs and Maces: Calcutta High Court has both and Madras only has the latter.  Time to pack these up and ship them off to London?
  4. Court Orderlies dressed in Raj Regalia: What’s going on? Do we really need to re-affirm the majesty of law in the post pandemic age by having a fellow in fancy dress costume come and hold back the chair as His Lordship would grace his seat? The VC hearings were such a breath of fresh air.  The Judge would simply switch on his screen and said ‘Good Morning’!
  5. Archaic court language: Even the court staff seemed to have been trained in the colonial lingo.  In a normal office, you would be told that “Boss wants to see you”.  In court, the staff will call you and whisper deferentially “His Lordship has desired your audience” or something to that effect.
  6. The Colour Black: I love the colour and besides ‘Black’ is the best Amitabh film.  It is said that the Inns of Court had resolved to mourn Queen Mary (some say James I) and hence, the lawyers dressed themselves up in black.  Some bloke forgot to rescind the notification.
  7. Bar Exam: Thank God! I missed it, but hey, I had something worse and it was called “Apprenticeship”.  Introduced by the Bar Council in 1996 at Ram Jethmalani’s persistence, we had to dress up like a waiter in black coat and tie for a year and just hang around. We did not even have the right to wear a coat or a band or even seek a pass-over or an adjournment.
  8. Bedevilling: Making juniors work for almost free.  I can’t think of any profession that is so exploitative.
  9. Character certificate for enrolment: For most young lawyers with no father or god-father in the profession, the entry into the Bar itself starts with a lie.  Imagine a small town outsider in a metro like Delhi or Bombay getting so many established lawyers to sign off on her enrolment form certifying that they have known her for years.
  10. CLAT: I certainly will not pass CLAT if I attempted today. Everything is so cut throat in our country. Thank God! I chose law in times when it was also the last resort of the scoundrel.
  11. NLUs: I get it that every State wants an NLU, pretty much like IIMs and IIT but seriously, some quality control should be there? In any case, with its fancy salaries, Jindal seems to be attracting all happening teachers with impressive CVs.
  12. NLU-local law college: Imagine how difficult it is becoming for Non-NLU students to secure placements and jobs. Non-NLU wale must try how we at NLS had handled the “Harvard” Challenge. When a visiting Professor from there said “NLS was the Harvard of the East”, we corrected him saying “Harvard was the NLS of the West”.
  13. No. 1 thing they don’t teach in Law School: How to fib and get adjournments.
  14. Corona related adjournments: “Milord, I am in a weak network area”, “Milord, the counsel is feeling feverish”
  15. No. 2 thing they don’t teach in Law School: How to Pfaff and get clients.
  16. No. 3 thing they don’t teach in Law School: How to make yourself a successful lawyer and perhaps even a future judge by spending most of the time in the Court Canteen.
  17. No. 4 thing they don’t teach in Law School: How to network and self promote.
  18. No. 5 thing they don’t teach in Law School: How to negotiate fees with clients and briefing lawyers.
  19. No. 6 thing they don’t teach in Law School: How to recover such negotiated fees when the case is over.
  20. No. 7 thing they don’t teach in Law School: How to read a client and a judge and to tailor your response accordingly.
  21. Canteen: Bun Samosa. If you are not from the Delhi High Court you will not get the emotion this term signifies.
  22. The Display Board: The most watched façade of the Court.
  23. Destination Bus: If you have not been on this bus then sorry you have not struggled.
  24. The Saket Mall: If you are an occasional visitor to Delhi’s swanky Saket District Court, you cannot miss the Mall next door. I know many, myself included, who would always try and include a Mall visit post court. In contrast if you visit sweet Tis Hazari, Rohini or Karkardooma District Courts, there is no fancy mall by its side to tempt you to linger your stay by even a minute after your job is done!
  25. Court street food: Calcutta High Court beats all others hollow in this department.  The range and taste of the street food on sale around the court complex for lawyers and court staff is mind boggling.
  26. Mad Litigant: Every court has one.  The Calcutta High Court was famous for a lady litigant walking around aimlessly as she had lost her balance just fighting her cases.
  27. Mad Lawyer: The lawyer version of the above.
  28. Law Bookshop: Every court has attached to it one or two.  Something one starts frequenting lesser and lesser as one becomes bigger and bigger in practice.  Law Students and lawyers can be seen frequenting and haggling with the old hands for greater discounts.
  29. Andhra Bhavan: The canteen extension for the Delhi High Court lawyers. The Nobel prize for the fellow who manages the crowd there is long overdue.
  30. Triveni Canteen: The canteen extension for the Supreme Court.  The home cooked feel of the food is unmissable.  The jostle for space and a quick bite to return to the Court by 2 is something many lawyers would understand.
  31. Café Lota: The larger bench of Triveni (run now by the same company). Many lawyers will swear by their Palak Patta Chaat and Bhapa Doi Cheesecake!
  32. Bengali Market: The Chole Bhature, Golgappa and Chaat-only the non-health conscious lawyers.
  33. Khan Market: The favourite haunt of Bhagwan Das Road as well as Sher Shah Road.  With Corporates moving to Gurugram and Noida, this place has been taken over by lawyers.
  34. China Fare: The ratio decidendi of Khan Market. The number of lawyers stuffed into this narrow joint is what fables are made of.
  35. Legal Awards: Have always longed for an award ever since my college medals were forfeited for misbehavior.  “Best 40 lawyers under 40”, “Best Boutique Law Firm”, “Best GC”, the awards are exotic and every year the “juries” which pick these awards get more and more interesting.  Organising legal awards is big business now.  My totally unrelated question is -are clients really that stupid?
  36. Coffee Table Book on Lawyers: The previous thought at Pro Max Level!
  37. Firm Offsites: They are so much fun.  The drinking and merry making with the mandatory pep talk sessions thrown in.  The sites where so many legal affairs happen, some extra-marital, blossom!
  38. Litigation Senior Offsites: What are they?
  39. Internships: Do we really learn anything during a one month internship or is it all about that certificate and addition to the CV?
  40. Virtual Internships: What are they?
  41. Court Vacations: The only saving grace of a litigation practice.  Needs to be zealously safeguarded for all the talk of “Mounting arrears”, “English judges went back to England” and “just like school children”.  The first thing that I do when a new calendar is issued is check out the court holidays and map out the holidays.  The summer, Durga Puja and winter breaks are well known.  The real delight are the sudden long breaks like this years Independence Day week long holiday that the Delhi High Court has given itself!
  42. Local Holidays: Means nothing. Just a term used by the Court to declare an in between working day also a holiday so that they can be clubbed with the actual holidays to make the break longer!
  43. The Band and Gown Shop: Think of those poor people next time you fuss about the uniform. In the Bombay High Court there is a poor lady who sells nice custom made bands and “butter silk” gowns.
  44. Jhabvala, Kunji, Dukki (in CLC) et al: The cheat-sheets which have helped many a lawyer steer through law school. Yet when they become lawyers in their offices the backdrop is adorned by a complete SCC set and the dukkis (the real source of her gyan) fall by the way side.  I assiduously avoided these until International Law in Fourth Year.  That is when I discovered that the notes I had prepared after sifting through ten books in the library were identical to the Jhabvala which had cogged those same books.  What a waste of four years no?
  45. The Court Diary: The digital millennial will not relate to this.  Remember how excited we would be each year getting to fill a new court diary. I always wondered why they carried the retirement dates of judges.  For many lawyers the CPC, IPC , Evidence, Stamp Act and Limitation Act were what the Universal’s diary would extract!
  46. Welfare Stamp: Ask any young lawyer or a court clerk.  They will associate it with spitting. I am yet to come across someone who will affix this will glue instead of human saliva!
  47. The Envelope: How a brief is maintained varies from court to court. Calcutta High Court lawyers simply fold the papers and tie them up.  Delhi High Court has the boring file system.  For the Supreme Court lawyers it is the paperbook.  Chandigarh rocks and beats all.  They have the envelope/packet system where each case has a packet in which all the papers are stored.
  48. The Fresh and Honest Coffee machine: At least one installation in court that can boldly proclaim its freshness and honesty.
  49. The Court loo: Every CJI, however briefly he may occupy the top seat, seeks to leave behind his legacy on the institution.  One did so by renovating the court loos.  The joke has been that this is the only room in the building where “relief” is guaranteed.
  50. The Court Creche: Need more. Sadly, it is yet to gain more demand among women lawyers.
  51. The Parking lot attendant: The most under-appreciated cog in the justice delivery system.  Ace ‘space manager’, can put professionals to shame and imagine the stress of managing the cars of lawyers who would blow their top at the slightest scratch.
  52. Physical Cause List Delivery BoyExtinct.
  53. Justdial: Its irritating that despite me refusing to sign up to Justdial it seems my number was carried.  Many lawyers sign up for this. Can’t blame the poor chaps, with the ban on advertisements by lawyers and all!
  54. VC Hearings: What a beauty. I was a late convert but loved how it made life so easy.  One day I had appeared in the Supreme Court, two High Courts and the Central Administrative Tribunal, all sitting in my Delhi Office.
  55. VC Mishaps: We heard about, the kissies, the red undees, shaving in a vest, the hookah and what not. My personal worst was appearing before a Single Judge while the camera was on before the DB.  I apologized and Justice Hima Kohli, then in the Delhi High Court, was most gracious to forgive me.
  56. Court Staff: During Covid times these were the real rockstars who kept the system going.  The silent gladiators of the God of Justice!
  57. Webinars: The fad went away faster than Covid.
  58. Web-senior conferences: Here to stay forever!
  59. Webex-Cisco: The best link I found during the pandemic. The ones used by the Supreme Court and Orissa High Court were terrible. Specially where we did not have control over either the mic or the screen and all power was wielded by the mysterious “Control Room”.
  60. Live streaming: Finally, Covid ensured that High Courts like Gujarat, Patna and Madhya Pradesh live-streamed court proceedings.  The effect was electrifying.  The non-litigating public finally got to witness first-hand what lawyers and judges have to put up with. Also created social media heroes out of rockstar judges such as Justice Ashutosh Kumar of the Patna High Court.
  61. Live tweeting: Twitter has revolutionized court proceedings. Live tweeting, in cases where live streaming is yet to penetrate has brought court action real time to one and all.  Even High Court judges have followed live tweeting of important proceedings before the Top Court.  The jury is still out on this given that stray comments from the bar and the bench and queries from the bench have led to trending and trolling on social media without understanding that this is a normal process of ‘justicing’.
  62. Online Law Portals: The real heroes of the Digital Age! Judges refer to reports carried real time on such portals such as Live Law, Bar and the Bench and Leaflet.  The SCC has also invited its digital avatar!
  63. Online Case Search: Imagine us fossils from a pre-computer age! However, nothing teaches real legal research skills like the good old fashioned way!
  64. Regular/Leave Granted Matters: There should be a rule that any judge who issues rule will have the hear the case even if the roster is changed.
  65. Time cap on hearing: If the SCOTUS caps at 30 mins a side, why cant we?
  66. Extension of Court hours: No way!  Lawyers and judges actually prepare for the next day when they are not sitting in court.
  67. Bar Elections: I have never truly understood why people want to run for Bar Association offices.  I get the power and recognition angle but imagine the stress of having to be nice to all lawyers all the time.
  68. Bar Campaigning: My survival matter is say:  “Of course you have my vote” to all.
  69. Legal Treatises: When we were young we would save up and pay an arm and a leg for great legal works like the Commonwealth Law Lecture Series, the Constituent Assembly Debates, Shiva Rao, Seervai, et al and that too many of the second hand.  There would be law book sellers who would be visiting the office of seniors and pushing such books even to tempted struggling juniors like us.
  70. Lawyers-Judges Cricket Matches: Fixed? Na Kidding!
  71. Bar Functions: Free food? That’s being mean. However seriously have you seen how many lawyers line up at the snacks counter?  I know I shall get into trouble for this one.
  72. Bar Candidates and their Agenda for young lawyers: None.
  73. Minimum Wages for Lawyers?: Perhaps!
  74. Maximum cap for Senior Advocates?: Never!
  75. The Gourango Feeling! And you thought, I would let you go without promoting HGLHO? Since May, so many young lawyers have read and shared.  They in fact celebrated “Gourango” and many taking the trouble to take the book to distant shores and clicking stunning photographs.  It really overwhelming the kind of love our Gourango has received.  Thank you and Jai Hind!

 


Sanjoy Ghose, Senior Advocate, Delhi High Court

Know thy Judge

“Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Justice L. Nageswara Rao

Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258


Despite the gloominess that generally surrounds farewells and retirements; they are probably the perfect occasion to reminisce about the uniqueness and the legacy that has been created by an individual. In the legal fraternity, a Supreme Court Judge’s retirement carries quite a sentiment. Of course, once you enter the field of law, the journey never really ends. But a Judge isn’t there only to judge. A judge has a superpower- a constitutionally mandated superpower to interpret the law. A judge’s interpretation has the force of law. Which is why, when a Supreme Court Judge retires, it feels like a loss of guidance and wisdom. Today, one such paragon of wisdom, Justice Lavu Nageswara Rao officially retires as a Supreme Court Judge and therefore it is time that we bring to you a recapitulation of Justice Rao’s stellar legal career.


Early Life and Career as an Advocate [1982- 2016]


Justice Rao was born on 08.06.1957 at Chirala, Prakasam District in Andhra Pradesh and did his schooling and graduation in Andhra itself (Nagarjuna University).[1]

♦Howzatt! Justice Rao participated in the Ranji Trophy cricket tournament in the year 1982.  Furthermore, in a recently held cricket match between Chief Justice of India- XI vs. Supreme Court Bar Association- XI, wherein, the CJI-XI defeated the SCBA-XI for the first time, with a whooping margin of 72 runs; with Justice L. Nageswara Rao becoming the “wrecker in chief” claiming 3 wickets for 9 runs in 2 overs!![2]

When not probing allegations against the Indian premier League, Justice Rao has a lot of interest in watching IPL matches![3]

His enrollment as an advocate at the Bar Council of Andhra Pradesh in July 1982 meant that he became a first-generation lawyer in his family. Post enrollment, Justice Rao started practicing at the District Court in Guntur and at Andhra Pradesh High Court (at Hyderabad). In December 2000, Justice Rao was designated as a Senior Advocate by the Andhra Pradesh High Court. After a stint in his native State, Justice Rao set up his practice at the Supreme Court of India and continued to do so till his elevation as a Supreme Court Judge in 2016.[4]

Justice Nageswara Rao also served as Additional Solicitor General of India for two terms- first term from August 2003 to May, 2004; and second term from 26th August, 2013 to 18th December, 2014.[5]

♦Acting Chops![6]  Here’s a riveting titbit – In the year 1989, Justice L. N. Rao, who was still practicing as an advocate; appeared in the action-drama flick Kanoon Apna Apna alongside stars such as Dileep Kumar, Kader Khan and Sanjay Dutt. Not surprisingly, his reel role had a law connection; i.e. he played the role of a Police Officer!  

Not only films, during his college days, Justice Rao was very much involved in Theatre. However, he wasn’t much interested in pursuing acting as a career.  


Noteworthy Cases and Committees


Justice Rao represented late J. Jayalalitha in the disproportionate assets case before the Karnataka High Court and secured a favourable decision for her in the matter. [Selvi J. Jayalalitha v. State, 2015 SCC OnLine Kar 124]

Justice Rao also appeared for the Christian Medical College and State of Tamil Nadu in the NEET case before the Supreme Court [Christian Medical College v. Union of India, (2014) 2 SCC 305]

As Additional Solicitor General of India, Justice Rao was part of the 3- member Mudgal Committee appointed by the Supreme Court, to look into the allegations of corruption against the BCCI (Board of Control for Cricket in India) and spot-fixing in the IPL.[7]

Some other prominent cases advocated by Justice Rao are as follows-

Samatha v. State of A.P., (1997) 8 SCC 191

State of A.P. v. A.P. SRTC, (2001) 9 SCC 197

M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691

SAIL v. National Union Waterfront Workers, (2001) 7 SCC 1

ITC Ltd. v. Agricultural Produce Market Committee, (2002) 9 SCC 232

K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670

Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003) 6 SCC 277

E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394

M.C. Mehta v. Union of India, (2011) 15 SCC 461

Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

High Court of Madras v. R. Gandhi, (2014) 11 SCC 547


Judgeship of Supreme Court of India [2016- 2022]


Justice Nageswara Rao was offered Supreme Court judgeship in 2014 by then Chief Justice of India R.M Lodha. He however, turned down the offer, citing personal and professional reasons[8]. Two years later, on 13.05.2016, Justice Rao finally took oath as a Judge of the Supreme Court of India[9].

♦From the Bar to the Bench! With his elevation as a Supreme Court Judge, Justice L. Nageswara Rao became the 7th lawyer to be directly elevated from the Bar[10]!   


 Notable Judgments


♦Double Century!  Justice L.N. Rao has authored 200+ judgments so far.[11]

Justice L. Nageswara Rao’s tenure as a Judge is remarkable for the number of landmark judgments that have been delivered on diverse issues. Furthermore, Justice Rao’s approach in authoring his judgments in a way that hits the proverbial ‘bull’s eye’ vis-a-vis discerning the ratio, has been praised by many for making the life of a practical lawyer easy.

The most noteworthy aspect of the judgements of Justice Nageswara Rao is its crisp and point-blank element which serves the purpose of the matter at hand with legal reasoning/ratio in lesser words.” – K. Ramakanth Reddy[12]

Justice Rao in his 6-year tenure dealt with matters ranging from protection of liberty of an individual to highlighting and berating corrupt electoral practices to ensuring a dignified life for all, irrespective of their caste, creed or profession. His decisions on these issues definitely provided a lot of fuel to the discourse within the legal circles. Some of the important issues that Justice L.N. Rao covered in decisions are as follows-

Grant of liberty

During the final days of his tenure at the Bench, Justice L.N. Rao granted big relief for A.G. Perarivalan, convicted for assassination of former Prime Minister Rajiv Gandhi, [AG Perarivalan v. State, 2022 SCC OnLine SC 635] and directed his release after being incarcerated for 32 years. Similarly, Azam Khan and Indrani Mukherjea were granted bail in their respective cases.

Affirmative Action/ Reservation

Justice Rao was a part of the 5- Judge Bench in Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1 that quashed the much in debate Maratha Reservation and held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s[13] case.

In Jarnail Singh v. Lachhmi Narain Gupta, 2022 SCC OnLine SC 96 the 3-judge bench of L. Nageswara Rao, Sanjiv Khanna and BR Gavai, JJ., has answered 6 crucial questions in relation to quantifiable data showing inadequacy of representation in promotional posts.

However, Justice Rao, in Mukesh Kumar v. State of Uttarakhand, (2020) 3 SCC 1 held that no mandamus can be issued by the Court to the State to collect quantifiable data relating to adequacy of representation of the Scheduled Castes and Scheduled Tribes in public services. The Court also held, “The State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations”.

In the case of Pattali Makkal Katchi v. A. Mayilerumperumal, 2022 SCC OnLine SC 386, relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao and BR Gavai, JJ observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.

In a relief to students seeking admission in AIIMS Institutes, the bench of L. Nageswara Rao and AS Bopanna, JJ., in Students Assn. AIIMS v. All India Institute of Medical Sciences, 2022 SCC OnLine SC 681 directed that a roster point-based reservation for preferential candidates as followed by Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) shall be implemented in all the AIIMS institutes.

Regarding Judiciary -Tribunals and Contempt of Court

In the landmark decision of Madras Bar Assn. v. Union of India, (2021) 7 SCC 369

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020. In Het Ram Beniwal v. Raghuveer Singh, (2017) 4 SCC 340, the bench of L.N. Rao and Anil Dave, JJ., dealt with a matter of criminal contempt of court, wherein an attempt was made to scandalise the authority of court via allegations of bias and corruption. It was held that Judges need not be protected since they can take care of themselves but it is the right and interest of public in due administration of justice which must be protected. “Vilification of Judges leads to destruction of system of administration of justice. Thus, statements made by appellants accusing Judges of corruption results in denigration of institution which has effect of lowering confidence of public in system of administration of justice, were not only derogatory but had propensity to lower authority of court.”

Regarding Practice and Procedure and Disposal of Cases

After noticing common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes, the 3-judge bench of S.A. Bobde, CJ., and L. Nageswara Rao and S. Ravindra Bhatt, JJ., via Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In re, (2021) 10 SCC 598, directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months. Similarly, when it was noticed that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution Bench comprising of S.A. Bobde, C.J. and L. Nageswara Rao, B.R. Gavai, A.S. Bopanna and S. Ravindra Bhat, JJ., via Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, In re, 2021 SCC OnLine SC 325  directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

Sex Workers’ Right to Dignity

In a significant decision, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., in Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704, upheld sex workers right to identity and issued detailed directions for their protection and upliftment. The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Aadhar Card for them without insisting on address proof.

Regarding Democracy, Constitutional and Electoral Processes

In several important judgments, Justice L.N. Rao upheld the constitutional essentialities and reprimanded corrupt practices that subvert the democratic process. Like in Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7-judge bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority. The principles for promulgation of ordinances were thus laid down in this case. Likewise, in Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629, the 7- Judge Bench of the Court with a ratio of 4: 3 severely reprimanded the practice of electoral appeal on the basis of caste, religion, race and community. The Court held that such an appeal is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice, sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters’. Justice Rao joined T.S. Thakur, CJ., and Madan B. Lokur, and S.A. Bobde, JJ., to give the majority ruling in the 4:3 verdict, while Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ., dissented.

Covid-19, Vaccines and Other related matters

The onset of Covid-19 pandemic meant that the judiciary had to face new challenges and issues. Benches led by Justice L.N. Rao provided the requisite guidance in such unprecedented circumstances. In Jacob Puliyel v. Union of India, 2022 SCC OnLine SC 533, a matter related to COVID-19 vaccination drive; the bench of L. Nageswara Rao and BR Gavai, JJ., held that bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated.

In Distribution of Essential Supplies & Services during Pandemic, In re, (2021) 7 SCC 772, the 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., expressed serious concerns on the ability of the marginalized members of society between the ages of 18-44 years to avail COVID-19 vaccination, exclusively through a digital portal in the face of a digital divide. The Court also sought to understand the Government’s vaccination policy in light of the raging Delta wave in 2021 and noted that, “A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.

Not only the vaccination policy, the 3- Judge Bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., even took suo moto notice under Art. 32 of the Constitution regarding the issues surrounding the availability of essential medical supplies during the height of Covid-19 in 2021. The Court in Distribution of Essential Supplies and Services During Pandemic, In re, 2021 SCC OnLine SC 372 observed that in a time of national crisis, such as the one which is confronting the nation as a consequence of the pandemic, the Supreme Court cannot stand silent as a mute spectator. The court has a constitutional duty to protect the fundamental rights traceable to Part III of the Constitution.

Free Speech

For any thriving democracy, protection of free speech is sacrosanct. The judicial system acts as a protector of this very essentiality. In Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258, the bench of L.N. Rao and S. Ravindra Bhat, JJ., quashed the criminal case registered against Shillong Times Editor Patricia Mukhim under Sections 153 A, 500 and 505 (1) (c) of the Indian Penal Code, 1860 and observed that, “Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Regarding entry of women in Temples and Dargahs   

In Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52, the 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference, held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction, after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected. Likewise in Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, (2016) 16 SCC 788, the 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ., gave the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

Matrimonial disputes

Dealing with the case where a husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was providing them financial support, the Court in Narendra v. K. Meena, (2016) 9 SCC 455 said that in a Hindu society, it is a pious obligation of the son to maintain the parents. The Bench of A.R. Dave and L. Nageswara Rao, JJ., added that no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court also said that the persistent effort of the wife to constrain the husband to be separated from the family would be torturous for the husband and will constitute as an act of ‘cruelty’. In Rupali Devi. State of Uttar Pradesh, (2019) 5 SCC 384, the 3-judge bench of Ranjan Gogoi, CJ., and L. Nageswara Rao and SK Kaul, JJ., held that a woman driven out of matrimonial home can file case under Section 498-A from the place she has taken shelter at. The bench said, “The courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”


Legacy


♦Man of many talents! Justice Nageswara is also a golfer and an avid biker.[14]

With great power, comes great responsibility” and if the responsibilities are performed with diligence and dedication, then it leaves behind a Legacy. From his enrolment in 1982 till his retirement as a SC Judge, Justice Nageswara has contributed immensely in enriching the law and its interpretations. In the recently held Farewell Function[15] organised by the Supreme Court Bar Association, the fellow Judges and lawyers were all praise for Justice L.N. Rao’s simplicity, hard work and gentle demeanour.

With another phase of his legal career is set to end; there is truly no end in sight for Justice Rao, because after retirement, he will be heading India’s first International Arbitration and Mediation Centre which was recently inaugurated at Hyderabad[16].

As I stated earlier, Farewells are about reminiscing the legacy left behind with a hope for a new eventful chapter. Justice Lavu Nageswara Rao’s legacy has been well established with his legal practice, judgments and overall conduct with his peers and juniors. Now we look forward to the next stage of his journey to demystify the law because when it comes to Law, “The road goes ever on and on!”.[17]


†Sucheta Sarkar, Editorial Assistant has put this report together 

[1] Chief Justice and Judges, Supreme Court of India.

[2] Supreme Court Judges crush Advocates in a game of Cricket, Latest Laws [dot] com

[3] Justice L.N. Rao- A star in real and reel life, The Hindu

[4] Justice L. Nageswara Rao, Supreme Court Observer

[5] Chief Justice and Judges, Supreme Court of India.

[6] Meet Justice L.N. Rao, Live Mint

[7] Justice L. Nageswara Rao , Supreme Court Observer

[8] L Nageswara Rao recommended for the post of SC judge, Indian Express

[9] Chief Justice and Judges, Supreme Court of India.

[10] Justice L. Nageswara Rao , Supreme Court Observer

[11] https://www.scconline.com

[12] Emerging trends in judgment writing introduced by Justice L Nageswara Rao, The Siasat Daily

[13] Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217

[14] Justice L. Nageswara- A star in reel and real life

[15] Justice L. Nageswara Rao- Spotlight, by Aamir Khan for Bar and the Bench

[16] India’s first International Arbitration and Mediation Centre opens , Business Standard News

[17] Quote by Bilbo Baggins, “The Fellowship of the Ring“, by JRR Tolkien

Op EdsOP. ED.

Introduction

Judicial legislation is nothing but law pronounced, proclaimed and declared by the judiciary–more particularly the Supreme Court, this is also known as “judicial law” or “Judge-made law”. Even though enacting legislation is the constitutional prerogative of the legislature. There may be circumstances where the existing laws made by the legislature prove to be inadequate in the process of administration of justice. It is said that even if Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society1.

“The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna2.” In such situations, the directions issued by the higher judiciary, to fill the vacuum until the legislature enacts substantive law is also a constitutional prerogative to meet the ends of the justice. Hence to meet the needs of society, the Judges do make law and it is now recognised everywhere.

But this shall not be vented out as activism, as Judge-made law or judicial law is also formally recognised under Article 133, where legislature or “other competent authority” is inclusive of judiciary and even considering wide power of the Court under Articles 324, 2265, 2276, 1417 and 1448 it is quite clear that the Constitution has bestowed the power on the courts to legislate wisely9. The initial years of the Supreme Court of India were the adoption of the British tradition of limited judicial review with a very cautious approach. Later on, the struggle for supremacy is very well known. In the 1960s and 1970s, the Court delivered landmark judgments which changed the course of the Indian judiciary and political scenario.

In the post emergency era, Maneka Gandhi’s10[1] judgment brought human rights jurisprudence by widening the scope of various constitutional provisions. For example, Articles 1411 and 2112 has been expanded manifold by judicial creativity. Later on, public interest litigation was a stepping stone devised by the constitutional courts for ameliorating the social and economic conditions of the society resulted in the evolution of human rights, environmental, compensatory jurisprudence and more so the poverty jurisprudence[2]13.

The beauty of social dynamics through Judge-made law is that it aims at evolution and not revolution and that is why it has come to be widely accepted14. “The problems before the Supreme Court require at times the economist’s understanding, the poet’s insight, the executive’s experience, the politician’s scientific understanding and a historian’s perspectives”15 to add to this sometime legislative duties are also required. In this process, it has in a way rewritten the Constitution and filled the existing laws with necessary lifeblood through its interpretation.

Jurisprudence vis-à-vis Judge-made law

In 19th century English Jurists Bentham and Austin created classical positivist jurisprudence, while Bentham’s legal philosophy “utilitarian individualism” condemned Judge made law. Even in Austin’s theory, there is no place for Judge-made law. Later this was developed in the 20th century by Hart, Kelsen and others, who taught that lawmaking is the task of the legislature, not the judiciary. The latter’s job is only to interpret the law made by the legislature and direct its enforcement.16

In sociological school of jurisprudence, which started in Europe towards the end of the 19th century by Geny, Duguit, etc and developed in the United States by Roscoe Pound and others opined that Judges can, and in fact do legislate. Pound’s functional theory paved the way for the more extreme school of sociological jurisprudence in the USA, the realist school.

According to Gray, one of the founders of the realist school, statutes, rules, etc. is not law but the material which the Judge uses in making law17. Gray observed, “it has sometimes been said that law is composed of two parts, legislative law and Judge-made law, but in truth, all the law is Judge-made law”. Frank Llewelyn went to an extreme and said that the only real law is Judge-made law and that the Judges were creators rather than the discoverers of the law18.

In case of declaratory theory which states Judges are no more than the discoverers of law. They discover the law on a particular point and declare it. This view has been supported by many writers, jurists and Judges. Similarly this applies to original precedents according to Salmon which has an effect of the law for future. This declaratory theory has been criticised by Bentham as “a wilful falsehood having for its object the stealing of legislative power by and for hands which could not or durst not, openly claim it”.19

Landmark judgments of judicial legislation

Jurisprudence of State liability established20

Rudul Sah was arrested on charges of murdering his wife in 1953, later he was acquitted by an Additional Sessions Judge, in 1968, who directed his release from jail, pending further orders. But he was not released from jail even after 14 years of his acquittal order until his plight was highlighted in the media in 1982. This led to the filing of the public interest litigation (PIL) on his behalf21.

This is a landmark judgment in the jurisprudence of State liability22. It is considered particularly important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights under the Constitution. This decision overruled Kasturi Lal Ralia Ram Jain v. State of U.P.23 which held the State is immune and cannot be held liable for its tortious acts. Though there is no express provision for awarding compensation in the Indian Constitution, this judgment was based on the Court’s interpretation of the extent of its remedial powers. The Court held that “The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield”24.

The grant of such monetary compensation was in addition, and not to the exclusion, to the right of the aggrieved person to bring an action for damages in civil law or in tort.

Inter-country adoption guidelines25

Lakshmi Kant Pandey, an advocate, wrote to the Supreme Court alleging neglect and malpractice on the part of social organisations and private adoption agencies facilitating the adoption of Indian children to foreign parents. His letter was based upon the empirical investigation carried out by a foreign magazine, The Mail. Since there is no statutory enactment in India relating to the adoption of Indian children by foreign parents, the Court had to look into Section 8 of the Guardians and Wards Act, 189026. This laid down the normative and procedural safeguards to be followed in cases of adoption of children. The judgment27 stressed on policy towards securing children of tender age from abuse and precautions which can prevent them from being forced to enter into vocations unsuitable for their ages and strength.

The judgment was penned by Bhagwati, J. in order to protect the child against exploitation, human trafficking, certain safeguards and procedures have been mentioned. He opined that a congenial environment for the children could be given only by biological parents, but in case if a child is abandoned efforts should be made to trace biological parents. The next step would be looking for adoptive parents within the native country of the child. If adoptive parents within the native country of the child cannot be found within a maximum period of 2 months, then looking for adoptive parents outside the country is the best alternative. However, several other safeguards are also mentioned which have to be taken care of by the social and child welfare agency recognised by the Government before adopting a child to foreign parents. The Court also revisited Rasiklal Chhaganlal Metha, In re28 where a copy of the home study report was mandated to be issued to the Indian Council of Child Welfare or Indian Council of Social Welfare for careful examination of foreigner’s social and financial status.

River Ganga water pollution guidelines29

Advocate M.C. Mehta filed a writ petition in the nature of mandamus to prevent the leather tanneries from disposing of domestic and industrial waste and effluents in River Ganga. The Supreme Court agreed with the prayer that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness and issued guidelines for prevention of Ganga water pollution.

The Bhopal tragedy30

After the Bhopal tragedy in 1984, the legal framework was inadequate to conduct a fair trial of Union Carbide. To overcome this challenge the Union of India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 198531 making the Union of India representative of the victims by the virtue of the doctrine of parens patriae. This was then challenged in the Supreme Court.

The Court ordered Union Carbide to pay  US $470 million against all the destruction that the leak of methyl isocyanate (MIC) gas from the industrial premise.  Pathak, J. in his reasoned order said that it was the duty of the court to secure immediate relief to the victims, he applied the polluters pay principle and decided the quantum of compensation to be US $470 million.

Placing limitations on President’s rule32

S.R. Bommai was the Karnataka Chief Minister of the Janata Dal Government, which was dismissed when the President’s rule (Article 35633) was imposed in Karnataka. When the Karnataka High Court dismissed his writ petition on the same, he then moved to the Supreme Court which discussed the grounds and the extent of the imposition of the President’s rule in a State. The Supreme Court in its judgments restricted the scope of Article 356 and laid several conditions which needed to be fulfilled such as President should use Article 356 only after his proclamation has been approved by both Houses of the Parliament. In case the proclamation disapproval of both the Houses, the dismissed Government is revived at the lapses of a period of two months. Such proclamation of the imposition of President rule is subject to judicial review.

The much needed sexual harassment at work place guidelines34

A PIL was filed by a women’s rights group known as “Vishaka”, the petition has been brought as a class action by certain social activists and NGOs in reaction to an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. The Court recognising the International Conventions and norms such as the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)35, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace is against their dignity and violative of Articles 14, 15(1)36, 19(1)(g)37 and 21 of the Constitution of India. The Court opined that Sections 35437 and 354-A 38IPC, 1860 were to be referred in any case of sexual harassment but these provisions were not specific to the issue at hand. This resulted in the Supreme Court’s elaborate guidelines to keep a check on sexual harassment at workplaces. The Court stated that the guidelines are to be treated as a declaration of law in accordance with Article 141 of the Constitution until Parliament legislates on the subject.

These guidelines served their purpose for 15 long years until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 201339.

Guidelines to be followed to arrest a person40

D.K. Basu, Executive Chairman of Legal Aid Services of West Bengal, a non-political organisation addressed a letter to the Supreme Court about a news item published in The Telegraph newspaper about deaths in police custody. His letter was treated as PIL by the Supreme Court. The Court considered various international conventions such as the Universal Declaration of Human Rights,1984, the International Covenant on Civil and Political Rights, 1966; statutes such as the New Zealand Bill of Rights Act and judgments such as Miranda v. State of Arizona41.

The Court issued a list of 11 guidelines regarding the arrest of a person which were to be followed by the police before proceeding to an arrest. The Court also referred to its earlier decision in Neelabati Behera v. State of Orissa42 in which it had held that prisoners and detainees shall not be deprived of their right to liberty and only the restriction permitted by law could be imposed on the enjoyment of the fundamental rights of prisoners and detained. This case introduced “custody jurisprudence” in India. The Court also held that failure to comply with these guidelines invites not only department actions but also contempt of court proceedings against the officers.

Jain Dairy — Guidelines to free the “caged parrot43

In 1991 Ashfak Hussain, an alleged official of a terrorist organisation named Hizbul Mujahideen was arrested and interrogated regarding their funding source. He revealed the details of Surrender Kumar Jain and his brother’s involvement, subsequently when the Central Bureau of Investigation (CBI) raided their house and seized Indian and foreign currency along with two diaries. But due to political interference and pressure, the probe was left uninvestigated. In 1993 a PIL was filed by Vineet Narain demanding an honest probe in the hawala case, which had dangerous consequences for the nation’s security and finances.

The Supreme Court derisively referred to CBI as a “caged parrot”44 and directed that the Central Vigilance Commission (CVC) should be given a supervisory role over CBI. The Court using the power under Articles 32 and 142 of the Constitution of India45 issued certain guidelines to CBI and Enforcement Directorate and invented the procedure of “continuing mandamus” to bring the investigations on their proper track and to proceed expeditiously, so as to bring the guilty to book. Further, directives were issued for the establishment of nodal agency and prosecution agency for coordinated action in cases having politico-bureaucrat criminal nexus46.

A check on these government agencies was being placed by the Supreme Court to ensure that the agencies fulfil their part of legal obligation and work towards the erosion of corruption and upheld the law of the land.

The collegium system: The Second Judges case47 and the Third Judges case48

In the Second Judges case49 (1993) the Supreme Court introduced the collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the Chief Justice of India’s (CJI) individual opinion, but an institutional opinion formed in consultation with the two seniormost Judges in the Supreme Court. In the Third Judges case50 (1998), the Supreme Court on President’s reference expanded the collegium to a five-member body, comprising the CJI and four of his seniormost colleagues.

Through these cases, the collegium system of appointment of Judges was introduced by the Supreme Court which was not based on any provision in the Constitution. While Article 12451 prescribes the procedure for appointment of the Supreme Court Judges, it does not prescribe a collegium system. Yet, it is the collegium which decides the appointment of Judges. This is also a classic example of Judge-made law.

Anti-ragging guidelines52

The Supreme Court, while exercising its jurisdiction under Articles 32 and 142 of the Constitution of India, has laid down broad guidelines for colleges and educational institutes to prevent ragging. The guideline includes initiating anti-ragging movement in the colleges; undertaking from students and parents on colleges action in case of ragging incidents; redressal mechanism in case of ragging incidents; hostel accommodation of freshmen shall be carefully guarded; withdrawal of financial assistance to an institute if ragging is reported; reformative approach by police in cases dealing with ragging culprits, etc.

Preventing smoking at public places53

Since the objects of both the Acts54 dealing with the tobacco products and advertisements discussed the health effects of smoking in public places but failed to place a ban. In an attempt to protect the health of non-smokers, the Supreme Court prohibited smoking at public places and held that it is an indirect violation of the right to life of non-smokers as passive smokers who were helpless victims of air pollution caused by smoking.

Police reforms55

In 1996, retired Indian Police Service (IPS) Officer Mr Prakash Singh filed a public interest writ petition before the Supreme Court intending to free the police from the control of power wielders, primarily in relation to transfers and postings. Seven directives were issued by the Supreme Court in this regard, namely, setting up of State Security Commission (SSC); fixing the tenure and selection of the Director General of Police (DGP); a minimum tenure for the Inspector General of Police; separation of investigation and law and order functions; setting up of Police Establishment Boards; creating a Police Complaints Authority and forming a National Security Commission56. These directives pulled together the various strands of improvement generated since 1979. The Court ordered immediate implementation of the guidelines either through executive orders or new police legislation.

The Supreme Court directives to the Union and State Governments to carry out structural changes in the Police Department to insulate it from extraneous pressures and make it accountable to the people is a landmark judgment in the history of police reforms57.

Public distribution schemes matter58

A PIL was filed by the People’s Union for Civil Liberties contending that food grains which are overflowing in storage, especially of Food Corporation of India (FCI) godowns and which are abundant, should not be wasted and distributed to the below poverty line (BPL) groups. The Supreme Court had asked the Government to distribute food grains rotting in government godowns for free to the poor and hungry. Besides this, the Court

“suggested that the Government should increase the quantity of food supply to the people living below poverty line (BPL);

(ii) the Government should open the fair price shops for all the 30 days in a month;

(iii) the Government should construct at least one large Food Corporation of India godown in every State and also consider the possibility of constructing a godown in every division of every State if it was not possible to do so in every district.”59

Live-in relationships — Palimony eligibility60

The Supreme Court was hearing a dispute over maintenance between one D. Velusamy and D. Patchaiammal. The Court was dealing with the rights of an unmarried partner under the Protection of Women from Domestic Violence Act, 200561.  It held that not all live-in relationships entitle a woman to palimony and the Court laid certain criteria in order to be eligible for “palimony”.

A relationship must comply with certain conditions such as the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and, they must have voluntarily cohabited for a significant period and held themselves out to the world as being akin to spouses for a significant period of time62. The Court even went a step ahead and said that “merely spending weekends together or a one-night stand would not make it a domestic relationship”.63

Since Parliament has used the expression “relationship in the nature of marriage” and not “live-in relationship”,  the Court in the garb of interpretation laid conditions which are needed to be satisfied to get the benefit of the Act of 2005.

Legalising passive euthanasia64

Aruna Ramachandra Shanbaug worked as a nurse in Mumbai. A sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and tried to rape her, to prevent her from moving he twisted the chain around her neck. The next day, she was found lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence, the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the Constitution alleging that there is no possibility for her to revive again and get better. So she should be allowed to go with passive euthanasia and should be absolved from her pain and agony. In Aruna Shanbaug case65, the Supreme Court laid down guidelines for passive euthanasia, which provided for the withdrawal of life support system which leads to death.

Whenever any application is filed in High Court for passive euthanasia, the Chief Justice of the High Court shall constitute a Bench of at least 2 Judges in deciding such an issue. The opinion of a committee of 3 reputed doctors shall be taken by the Bench. The doctors in the Committee are to be nominated by the Bench after discussing with the appropriate medical practitioners. It is the duty of the Court to issue a notice to the State, relatives, kins and friends and also provide them with a copy of the report made by a committee of doctors. After all these procedures the Court should deliver the judgment. These guidelines shall be followed until the legislature takes up the matter66.

Even though the Supreme Court held right to die is a part of Article 2167 it later overruled it in Gian Kaur v. State of Punjab68. In the year 2018, the Supreme Court passed another order in Common Cause, A Registered Society v. Union of India69, in which the right to die with dignity was again recognised and passive euthanasia was legalised and a permit was given to withdraw the life support system of those who are terminally ill and are in lifelong coma.

Criminals out of polls70

In 2005, Lily Thomas filed a writ petition in the Supreme Court to challenge Section 8(4) of the Representation of the People Act71 which protects the convicted politicians against disqualification from contesting the elections on the ground of pending appeals against their conviction in the appellate courts72. Although initially the petition was rejected after nine years, after constant attempts, the Supreme Court Bench comprising  A.K. Patnaik and S.J. Mukhopadhaya, JJ. passed a verdict in 2013.

The 2-Judge Bench stepped into the boots of lawmaking and held that members of Parliament, Legislative Councils and Legislative Assemblies convicted of crimes where they had been awarded a minimum sentence of 2 years’ imprisonment would cease to be members of the house to which they were elected from the date of sentencing. It further struck down the provision, which allowed convicted members a 3 months’ time period for appeal against the conviction and sentencing and held that those convicted would suffer immediate disqualification. It held Section 8(4) is indeed ultra vires to the constitutional provisions.

Later in 2020, the Supreme Court in Rambabu Singh Thakur v. Sunil Arora73 passed another judgment74 whereby all candidates both at the State and Central level would have to publish their criminal records if they want to stand in elections. An earnest attempt was made by the Supreme Court to cleanse politics through its extraordinary powers.

Waiving the statutory period of divorce75

This landmark judgment was delivered by the Supreme Court wherein it was held that where the circumstances are such that continuing the ties of the marriage by applying Section 13-B of the Hindu Marriage Act, 195576, would only continue the agony of the parties, then the marriage must be dissolved and divorce must be granted to the parties. The Supreme Court by invoking their special powers under Article 142 of the Constitution, waived the statutory period of six months’ wait and granted a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. Later in 2017 in Amardeep Singh v. Harveen Kaur,77 it has been held by the Supreme Court that the period of 6 months, as mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation78.

Following Vishaka Guidelines79

After a long-running attempt in courts to tackle the problem of sexual harassment of women at work in India through Vishaka v. State of Rajasthan80, this case arose when the Vishaka guidelines were not implemented properly in many States of India. The Court stated that the guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It further issued various directives to which had to be followed by the State functionaries and private and public sector undertakings/organisations/bodies/institutions, etc. to ensure full implementation of Vishaka guidelines.

Misuse of red beacons on vehicles81

In this case, the Supreme Court gave directions to the Union Government to prevent the misuse of red beacons. The Supreme Court directed that the vehicles ferrying “high dignitaries” specified by the Central and State Governments may be fitted with red beacons but these can be used with or without flasher only when the dignitary is on duty. It had also directed the States to amend the Motor Vehicle Rules to restrict the use of the red beacon and impose an exemplary fine in case of misuse. It further held that “the use of red lights on the vehicles of public representatives and civil servants has perhaps no parallel in the world democracies.”

The NOTA case82

The People’s Union for Civil Liberties an NGO, filed a public interest litigation under Article 32 of the Constitution to challenge the constitutional validity of Rules 41(2) and (3) and 49-O of the Conduct of Elections Rules, 1961,  challenging the provision in which one wishing not to vote for any candidate had to inform the Presiding Officer. On 27-9-2013, this was held ultra vires by the Supreme Court under Article 19 of the Constitution (protection of certain rights regarding freedom of expression) and Section 12883 (maintenance of secrecy of voting) of the Representation of the People Act, 195184. The Court also directed the Election Commission to make the necessary provisions in ballot papers and electronic voting machines (EVMs) to provide a “‘None of the Above” option for voters, this was to enable voters to exercise their right not to choose a candidate while maintaining their right to secrecy.

Legal declaration on transgender community’s identity and rights

The Court declared85 that the Union and State Governments must grant recognition to the third gender in the eye of the law. Further, they should get to enjoy healthcare, education, etc. and all government documents such as ration cards, passports, etc. should recognise the third gender. It also directed the Election Commission of India to take special measures to enroll.

Directions on acid sales86

Directions were issued to curb acid sales. The Court said that acid should be sold only to people who show a valid identity card. Buyers will also have to explain why they need the chemical and sales will have to be reported to the police. The Court directed the Chief Secretaries of all States and the administrator of the Union Territories to comply with the direction given in the order and frame rules in tune with the model rules framed by the Centre to regulate the sale of acid at the earliest and possible.

Shutting liquor vends near highways87

The Supreme Court considering the increase in the number of road accidents due to driving under the influence of alcohol and negative effects of the same both to the individuals and to the society and recognising that no method of restitution through monetary instruments can undo loss and the pain of suffering, issued the directions to shut down all liquor vends like bars, restaurants, shops, etc. which are situated within 500 meters of the outer edge of national/State highways and the ban extended to highways passing through city/town. Along with it, the States were barred from granting fresh licences under Article 142 of the Constitution. The Court justified its ruling by considering various issues of drunk driving and its social, economic and legal consequences.

Guidelines on honour killings88

The Supreme Court observing the petition and data collected by an NGO in its survey against the honour killings in Haryana, Punjab and Western Uttar Pradesh has issued guidelines to check unlawful interference in the lives of interfaith and inter-caste couples by khap panchayats and further directed the State Governments to constitute special cells in each district which can be approached by the couples for their safety and well-being.

Green crackers case89

The Supreme Court applied the precautionary principle and said scientific uncertainty should not be a reason for preventing action that may cause environmental harm. Guidelines were issued on bursting of crackers during Diwali. Concept of “green crackers” was introduced.

Witness Protection Scheme90

In this case, the Supreme Court observed that there is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede and no such legislation has been brought about. Hence, the Supreme Court approved the Witness Protection Scheme, 201891 (as prepared by Union of India) and directed it to come “into effect forthwith” and that “it shall be the ‘law’ under Articles 141/142 of the Constitution, till the enactment of suitable parliamentary and/or State Legislations on the subject92.

Installation of CCTVs in the police stations93

The Supreme Court directed States and Union Territories Governments to look into the compliance on the directions issued in Shafhi Mohammad v. State of H.P.94 which directed installation of the cameras with audio devices at the police stations in their State. Further the Court held that CCTV footage shall be preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

Limit on arbitral bail conditions95

Looking at the bizarre bail conditions the Supreme Court issued a set of guidelines in order to regulate bail conditions to be imposed in cases relating to sexual offences, while setting aside a “rakhi for bail”96 condition imposed by the Madhya Pradesh High Court in a sexual harassment case97.

Judicial legislation in Covid-19

In connection with the impact of Covid-19, the Supreme Court has received a large number of petitions from individuals and organisations. Some prayers were frivolous, while others required high levels of medical or other expertise. The Supreme Court has passed very bold orders, to minimise fatalities. These orders/guidelines of the Supreme Court to ensure proper management of the Covid-19 pandemic were also a form of judicial legislation. As various petitions were filed which were either legislative or executive’s subjects, but the Supreme Court had to ultimately deal with it. In such petitions various guidelines on aspects like fixing prices of testing and kits98, guidelines for equitable distribution of essential supplies and services99, checking hoarding and illicit trade, safety and well-being of children protection homes100, healthcare professionals101, directives to the States/UTs to release prisoners on parole to decongest prisons102; guidelines to be followed for Puri Jagganath Rath Yatra103 and many more.

Judicial legislation v. Separation of power conundrum

Indian Constitution does not strictly accept the concept of separation of power, as laid down in Ram Sahib Ram Jawaya Kapur v. State of Punjab104. It has not indeed recognised the doctrine of separation of powers in its absolute rigidity105but the functions of the different parts or branches of the Government have been sufficiently differentiated.106Hence, the judiciary to indulge in lawmaking is to overstep its limitations.107 Moreover, allowing an unelected body like the judiciary to share the burden of lawmaking is always criticised as it is extraneous to that of the people’s will108.

Judicial legislation for the first time was checked by a 7-Judge Bench decision in P. Ramachandra Rao v. State of Karnataka109, wherein the Court held that giving directions of a legislative nature is not a legitimate judicial function. The Court was considering the question of whether the bar of limitation for criminal trials set by smaller Benches of the Supreme Court in “Common Cause”, A Registered Society v. Union of India110Raj Deo Sharma (1) v. State of Bihar111 and Raj Deo Sharma (2) v. State of Bihar112 were valid. The Supreme Court held that the directions given in the aforesaid decisions were invalid as they amounted to directions of legislative nature which only the legislature could give113.

Even in Bachan Singh v. State of Punjab114  a five-Judge Bench headed by  Y.V. Chandrachud, C.J. held that “We must leave unto the legislature, the things that are the legislature’s. ‘The highest judicial duty is to recognise the limits on judicial power and to permit the democratic process to deal with matters falling outside of those limits.’” Even with regard to Vishaka Guidelines115, the Court expressed its concern much later116 on being an interim Parliament.

But, in many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have a little judicial function in them. Its justification is that the other branches of Government have failed or are indifferent to the solution of the problem. Sometimes failing to circumspect and understand the thin line between law and governance.117

Hence, allegations are made now and then on the judiciary in general and the Supreme Court in particular that it has entered into the domain of the legislature and “taken over” the administration of the country. But analysing various judgments of the Supreme Court, underlying reasons for expanding judicial review and its legitimacy can be understood.

The Judge-made law can be validated when there is serious lacuna or vacuum which has to be filled and left unattended by the legislature, as even “Judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice”118. Moreover, it is  a constitutional obligation of the court to ensure justice is delivered. It is only the tradition that Judges “find” and do not “make” law119. But through interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be120.

In the same way,judicial creativity can also be justified if there is a peculiar issue at hand which has a dead end. For instance, in C. Golak Nath v. State of Punjab121, the Supreme Court has invented the doctrine of “prospective overruling” as it would have upset everything done so far in the agrarian field122. Even the basic structure123, doctrine of harmonious construction124, pith and substance125 etc., can also be categorised into this.

Laws enacted need to fulfil the needs of the people, with changing time, expanding the scope of existing provisions in the Constitution is also legitimate. For instance, in Maneka Gandhi v. Union of India126 and K.S. Puttaswamy v. Union of India127scope of Article 21 is expanded manifolds and new dimensions were mandated by the Court. Hence, by interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be128. Adding/subtracting legislation in the name of interpretation can be categorised as illegal129. Even an order “to do complete justice” under Article 142 cannot be “inconsistent with the substantive provisions of the relevant statutory laws.”130

Whether Judges find law or make the law

After analysing the above landmark judgments it can be inferred that Judges make law when there is a legal vacuum or no express principles of law. But when existing laws fail to provide all the resources to deliver justice or “complete justice”, Judges do tend to find the law within the framework of legislation through its interpretative techniques or judicial creativity and “the Judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society”131.

Impact of Judge-made law

While Judge-made law pushes the legislature to introspect on its failures, it also creates credibility and a certain sense of reliability amongst the people. On the other hand it creates a sense of uncertainty and unwanted strife between the organs of the State, Judge-made laws are against the natural justice principles which demands that the law should be known before it is enforced, decisions of Judges are not intelligible to common man and sometimes are in accordance to their subjective notions.

Dichotomy of opinion: Conservative versus Activist Judges

The activist approach to the Judicial legislation suggests that interpretation of the constitutional and statutory provisions in such a way to meet the then contemporary needs or to lay down a new law, be it procedure or substantive, through in the form of guidelines or orders. In contrast, in the conservative/traditional approach to the judicial legislation suggests, the judiciary not willing or stepping into the legislative domain to interpret the constitutional provisions and statutes irrespective of needs in the system. The process of making law by Judges is also one of the many forms of judicial activism, and traditional approach to this can be put it loosely as judicial passivism.

For example, by analysing these two judgments, contrast of opinion can be understood: In Madhuri Patil v. Commr., Tribal Development132 K. Ramaswamy, J.  issues 15 guidelines to prevent fraudulent and fabricated certificates being made by the forward communities to reap the benefits which were allocated to the reserved communities. Later in Dayaram v. Sudhir Batham133 doubted the correctness of the said judgment but  R. Raveendran, J. speaking for the Bench came to a conclusion holding that they were not taking over the functions of the legislature but merely filling up the vacuum till legislature chose to make an appropriate law.

In contrast, in Rajesh Sharma v. State of U.P.134, a two-Judge Bench of the Supreme Court held that Section 498-A IPC135 was being misused by vindictive wives and 8 directives were issued. The very first directive was that in every district in India a Family Welfare Committee should be set up by the District Legal Services Authority, and all complaints under Section 498-A should be referred to it, and no arrest should be made before receiving its report. Since there is no such law for setting up family welfare committees, the 3-Judge Bench of Supreme Court in Social Action Forum for Manav Adhikar v. Union of India136, set aside the abovementioned directive of the two-Judge Bench.

The reason held is that the Court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary, and the matters of policy should be left for the elected representatives of people to decide and no direction can be issued by the Court.

 Reasoning from Activist Judges on judicial legislation

Judges Views on judicial legislation
Justice

V.R. Krishna Iyer137

“The Judge is not a mimic. The greatness of the Bench lies in creativity….To meet the needs of the society, the Judges do make law and it is now recognised everywhere that Judges take part in this law-making function and, therefore, Judges make law.”
Justice

P.N. Bhagwati138

“There is no need for Judges to feel shy or apologetic about the law creating roles….Lawmaking is an inherent and inevitable part of the judicial process….There is bound to be a gap between the generalities of law and the specifics of life…thus making and moulding the law he takes part in the work of creation.”
Justice

K. Ramaswamy139

“The role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.”
Justice Kurian Joseph140

 

“I would like to sum up stating that judicial legislation is not necessarily an innovative role of an activist Judge, it is the solemn duty or role or function of Judge who has taken oath under the Constitution of India to uphold it…. He shall not non-suit a person crying for justice taking a technical approach that there is no enacted law to be applied in the given circumstances.”

Reasoning from traditional Judges on judicial legislation

Judges Views on judicial legislation
Justice Pathak141 “the Court must never forget that its jurisdiction extends no farther than the legitimate limits of its constitutional powers and avoid trespassing into political territory … excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions”.
Justice Y.V.Chandrachud142 “The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits.”
Justice MarkandeyKatju143 “Judges ought to know their limits and must not try to run the Government; they must have modesty and humility, and not behave like emperors.”

 

Justice S.B. Sinha144

 

 

 

“The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.”

By comparing traditional and activist Judges, we can come to a conclusion that even in traditional Judges there is acceptance to judicial legislation to some extent, and which some Judges term it as legitimate judicial legislation145. Nonetheless, when it comes to the vacuum which needs to be filled, Judges did not hesitate in using their legislative powers.  At the same time when there is a blank wall, courts were not reluctant to lay new doctrines/guidelines to cross the obstacles. The fundamental difference is that there is a tendency amongst activist Judges to pass orders which tend to cobble with policy decisions and lay guidelines which are sometimes against the statute laid. While traditional Judges refrain to comment on policy decisions and passing orders when there is a statute even sometimes ineffective to meet the needs.

Executive and legislature criticism on judicial legislation

For instance, if we look at the Supreme Court’s order in People’s Union for Civil Liberties v. Union of India146 against corruption in the Food Corporation of India, the Union Agriculture Minister, Sharad Pawar reacted147 by sayings that it was not possible to implement the “suggestion” made. The Supreme Court made it very clear that it did not make a “suggestion to the Government; it was an “order”148. The then Prime Minister Manmohan Singh said that the Supreme Court should refrain from interfering in policy issues149.

Similar criticism can be observed when the Supreme Court has directed the interlinking rivers in India150. In 1993, the Court’s order to conduct military operations in Hazratbal, Kashmir received a lot of criticism. Commenting on this, an Army General wrote: “for the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation”. On the same lines, the Supreme Court’s order to Jharkand Assembly to conduct a motion of confidence and not to entertain any other business was criticised by the legislators as against the Article 212 of the Constitution151 which states that courts are not to inquire into any proceedings of the legislature152.

Even former Union Finance Minister, Mr Arun Jaitley vehemently criticised on this issue. In his words:

I have often heard (the) argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It is a flawed argument. It is flawed because if any organ of the State is not doing its duty, it can be directed to do its duty. Usurpation of power… by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears are pending, Judges are not doing the job. So must somebody step in and now exercise that power? The answer is no… And therefore, it is extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.153

Beneficiaries’ response on judicial legislation

Whether a law is passed through legislative route or from a judicial court, ultimately it is the people’s welfare which is relevant and should be predominant and not Montesquieu’s 18th century treatise on separation of powers154. Judge-made law has touched the lives of millions, it is because of this belief that people even today run to the courts when there is a mess. In many instances because of this trust, the Supreme Court was the first to be approached; this in many ways burdened the court and even led it to adventure in unwarranted domains. Time and again the Supreme Court saved the supreme aspirations of this nation’s founding fathers and mothers. Perhaps it is the Supreme Court which has transfused the vision of our Constituent Assembly.

Conclusion

“It is indeed possible to characterise with precision that (any particular) agency of the State is executive, legislative or judicial, but it cannot be predicted that a particular function exercised by any individual agency is necessarily of the character which the agency bears”155. Hence, every agency is under the Constitution, even Judges are under the Constitution, but Constitution is what Judges say156.

“Like it or not, the balance of constitutional power will remain in favour of the courts, but only so long as our Judges are perceived to be persons of exceptional competence and of high moral integrity. If that perception changes (God forbid), the constitutional system as it now operates will breakdown”157.

It is, therefore, necessary for academicians, lawyers and Judges to re-examine the roles postulated by the Constitution for the three wings of the State. If the Judges legitimately legislate and the Constitution recognises judicial legislation, then the limits to judicial legislation shall also be explored and reasoned out. Even if it is welcomed should it be permanent or interstitial should also be considered. Alike judicial review, Judge-made law shall also have to satisfy legitimacy. Ultimately Judges are not legislators, but finishers, refiners and polishers of legislation158.


*Professor at University College of Law, Osmania University, Hyderabad.

**Final year student at University College of Law, Osmania University, Hyderabad. Author can be reached at mrpavankasturi@gmail.com.

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134(2018) 10 SCC 472.

135Penal Code, 1860, S. 498-A.

136(2018) 10 SCC 443.

137 Esha Saha, Judicial Legislation – Boon or Bane?, Live Law, 18-7-2013, <https://www.livelaw.in/judicial-legislation-boon-or-bane/>, (last accessed on29-6-2021)

138P.N. Bhagwati, Judicial Activism in India <https://media.law.wisc.edu/m/4mdd4/gargoyle_17_1_3.pdf> (last accessed on 19-6-2021).

139C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457.

140Justice Kurian Joseph, Judicial Legislation, (2016) 2 SCC J-18, 26-27.

141Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

142Bachan Singh v. State of Punjab, (1980) 2 SCC 684, 741, para 175.

143Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.

144Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408, 426, 427, para 38.

145Markandey Katju, Can Judges Legislate? The Supreme Court Sets the Record Straight, The Wire, <https://thewire.in/law/can-judges-legislate-the-supreme-court-sets-the-record-straight>, (last accessed on 25-06-2021).

146(2010) 14 SCC 611.

147Dhananjay Mahapatra, Distribution of Foodgrains an Order, Not a Suggestion, SC Pulls up Pawar, Times of India (31-8-2010), <http://timesofindia.indiatimes. com/india/Distribution-of-food-grains-an order-not-a-suggestion-SC-pulls-up-Pawar/ articleshow/6467212.cms>(last accessed on 4-11-2021).

148Agarwal, Anurag K., Judicial Legislation and Judicial Restraint, Economic and Political Weekly, Vol. 46, No. 1, 2011, pp. 22-24, JSTOR,<www.jstor.org/stable/27917983>(accessed on 29-6-2021).

149 Siddharth, Order on free grain to poor can’t be executed, says Manmohan Singh, The Hindu, (6-9-2010),  https://www.thehindu.com/news/national/Order-on-free-grain-to-poor-cant-be-executed-says-Manmohan-Singh/article15906394.ece, (last accessed on17-7-2021).

150Amitha Bhaduri, Citizens Voice Alarm over Recent Supreme Court Judgment on Interlinking of Rivers, India Water Portal (27-2-2012), <https://www.indiawaterportal.org/articles/citizens-voice-alarm-over-recent-supreme-court-judgement-interlinking-rivers>, (last accessed on7-7-2021).

151Constitution of India, Art. 212.

152T.R. Andhyarujina, Disturbing Trends in Judicial Activism, The Hindu, (6-8-2012), <https://www.thehindu.com/opinion/lead/Disturbing-trends-in-judicial-activism/article12680891.ece>, (last accessed 7-7-2021).

153Ananthakrishnan G., National Law Day: Judicial Activism Based on Flawed Premise, says Arun Jaitley, (26-11-2017), The Indian Express, <https://indianexpress.com/article/india/national-law-day-judicial-activism-based-on-flawed-premise-says-arun-jaitley-4954840/, (last accessed on 7-7-2021).

154Soli J. Sorabjee,  Judicial Activism — Boon or Bane?, (2008) 3 SCC J-24.

155Jayantilal Amratlal Shodhan v. F.N. Rana, AIR 1964 SC 648, para 11.

156Justice Charles Evans Hughes.

157Fali S. Nariman, A Question of the Right Balance, The Hindu, 15-8-2007, <http://www. hinduonnet.com/af/india60/stories/ 2007081550270800.htm> (last accessed on 4-11-2010).

158Corocraft Ltd. v. Pan American Airways Inc., (1969) 1 QB 616 : (1968) 3 WLR 1273 (CA).

New releasesNews

Table of Contents


Editorial………………………………………………………………………………… IX

Advertising in the Era of Social Media Influencers:
A Socio-Legal Analysis of the Indian Digital Landscape

Farah Hayat…………………………………………………………………….. 1

Evaluating Privacy Violations of Facial Recognition Technology in the Backdrop of OECD Privacy Principles

Prerna Sengupta and Riddhi Bang………………………………………….. 22

Privacy, National Security, And Government Interests: The Many Facets of End-to-End Encryption in India

Aditi Singh and Ujjwal Agarwal…………………………………………….. 46

The Crime of Being Obscenely Private on the Internet: Section 67 and 67A of the IT Act, 2000

Mani Munjal and Anuj Nakade……………………………………………… 64

Weekly Rewind


Top Story


Inherited property of a female Hindu dying issueless and intestate to return to source

In an important ruling on the property of female Hindu, the Supreme Court has held that the property of a female Hindu dying intestate would return to source I.e. if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

https://www.scconline.com/blog/post/2022/01/24/explained-who-can-claim-share-in-the-inherited-property-of-a-female-hindu-dying-issueless-and-intestate/


Supreme Court 


Suspension of 12 Maharashtra BJP MLAs for one year “grossly illegal”; worse than expulsion, disqualification or resignation 

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly on 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the Supreme Court has held that the suspension beyond the remainder of the concerned (ongoing) Session is unconstitutional, grossly illegal and irrational.

The Court observed that suspension beyond the Session would be bordering on punishing not only the member concerned, but also inevitably impact the legitimate rights of the constituency from where the member had been elected.

The suspended MLAs belong to BJP, the principal Opposition Party in the Maharashtra Legislative Assembly. The Ruling Party is a coalition between the Shiv Sena, the Nationalist Congress Party (NCP) and the Indian National Congress (INC) christened as “Maha Vikas Aghadi”.

On July 5, 2021, 12 BJP MLAs were suspended after the house witnessed heated exchanges between the members of the Opposition Party and the Ruling Party due to an impression formed by the former that the business of the House was being conducted   in unilateral manner, with conscious and engineered effort to suppress voice of the Opposition Party.

https://www.scconline.com/blog/post/2022/01/29/suspension-of-12-maharashtra-bjp-mlas-for-one-year-grossly-illegal-worse-than-expulsion-disqualification-or-resignation-sc/

Cheque gets deposited to the account of account holder with strikingly similar name. Bank blames customer. SC “surprised” at NCDRC’s ruling  

In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the Supreme Court has set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.

The Account Holder Sunil Kumar Maity was informed by the bank that his account number has changed. A sum of Rs. 3, 00, 000 was deposited in this new account number. However, a few days later, his passbook showed a balance of Rs. 59 only. Interestingly, this “new” account number belonged one “Sunil Maity” who had withdrawn a sum of Rs. 1 lakh and 2 lakhs on two occasions.

The bank report submitted before the NCDRC indicated that the bank had every reason to believe that wrong account number was intentionally inserted by the appellant himself. Surprised that the NCDRC relied on this report to pass an order in favour of the bank, the Supreme Court observed that “There was no way that the appellant would have known that the second respondent, namely Sunil Maity had an account in the same branch. No sane person would deposit cash or cheque meant to be deposited in his account in an account number belonging to another person with similar name.”

https://www.scconline.com/blog/post/2022/01/25/cheque-gets-deposited-to-the-account-of-account-holder-with-strikingly-similar-name-bank-blames-customer-read-why-sc-was-surprised-at-ncdrcs-ruling/


High Court Updates


  Madhya Pradesh High Court

Can a Kazi adjudicate disputes like a Court and pass an order like a decree?

In a recent ruling, the Madhya Pradesh High Court while entertaining a Public Interest Litigation observed that if a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.

https://www.scconline.com/blog/post/2022/01/27/can-a-kazi-adjudicate-disputes-like-a-court-and-pass-an-order-like-a-decree/

Allahabad High Court

“…we boast ourselves as an educated society, but we live our lives with double standards”: Allahabad HC condemns prevailing caste system even after 75 years of independence

While condemning the prevailing caste system even after 75 years of independence, Allahabad High Court made a very significant observation in a cold-blooded murder in an alleged honour killing case, that,

 Caste system in our society is deep rooted, we boast ourselves as educated society, but we live our lives with double standards. Even after 75 years of Independence we are not able to get out with this social menace. This is pitiable and tragic. It is the moral duty of those sane person, who are well-off, to protect the under-privileged and downtrodden, so that they feel themselves safe, secure and comfortable. Simultaneously, the other group also feel that they are the integral and inseparable part of the society, and it is in the larger interest of the country and high time for the introspection for everyone to give serious thought over the matter.

https://www.scconline.com/blog/post/2022/01/25/we-boast-ourselves-as-an-educated-society-but-we-live-our-lives-with-double-standards/

Can wife claim maintenance under S. 125 CrPC where appeal is pending against divorce granted under S. 13 HMA?

 A husband approached the Allahabad High Court claiming that the Family Court could not have granted maintenance to wife under Section 125 CrPC when divorce was already granted in his favour under Section 13 of Hindu Marriage Act.

Allahabad High Court answered to this claim by stating that When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

https://www.scconline.com/blog/post/2022/01/24/can-wife-claim-maintenance-under-s-125-crpc-where-appeal-is-pending-against-divorce-granted-under-s-13-hma/

Bombay High Court

Can a girl be treated as property and given in donation? Bom HC addresses in light of “Daanpatra” executed by father of a daughter

Bombay High Court while addressing a case wherein a father executed Daanpatra to give the minor daughter in donation to a baba observed that  A girl is not property that can be donated and further directed the Child welfare committee to ascertain if the child could be declared as a child in need of protection.

High Court made a very pertinent observation in the case which was,

When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.

https://www.scconline.com/blog/post/2022/01/25/an-a-girl-be-treated-as-property-and-given-in-donation/

Calcutta High Court

Daughter-in-law who obtains compassionate appointment by stating that she will take responsibility of her mother-in-law is bound by that undertaking

Moving to another very interesting matter from Calcutta High Court, it was noted that a 80 year old widow had approached the Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son.

High Court held that the daughter in law was bound by the undertaking by which she had obtained the compassionate appointment.

https://www.scconline.com/blog/post/2022/01/21/daughter-in-law-who-obtains-compassionate-appointment-by-stating-that-she-will-take-responsibility-of-her-mother-in-law/

Delhi High Court

False invocation of Ss. 354A, 506 IPC merely trivalises offence of sexual harassment casting doubt on veracity of allegations by victim who has in reality faced sexual harassment

Delhi High Court in a recent decision expressed its anguish at how provisions such as Sections 354A/506 IPC are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.

In this false invocation of sections pertaining to sexual assault case, the Court stated that such instances merely trivalise the offence of sexual harassment and casts a doubt on the veracity of the allegations filed by every other victim who has in reality faced sexual harassment, thereby setting back the cause of women empowerment.

https://www.scconline.com/blog/post/2022/01/28/false-invocation-of-ss-354a-506-ipc-merely-trivalises-offence-of-sexual-harassment-casting-doubt-on-veracity-of-allegations/


District Court Updates


53-year-old man molested a 9-year-old minor boy by pressing his private parts: Court sentences man under POCSO Act

A Fast Track Court of Thiruvanathapuram addressed a case wherein a minor boy aged 9 years old was sexually assaulted by a 53-year-old man who had squeezed the boy’s private part causing him pain.

In this case, Bench expressed that the accused is a prudent man, well acquainted with the prose and cons of his misdeeds. His attitude shows his scant respect and honour for the legal system and morality. So he is not entitled to get the benevolent provisions of the Probation of Offenders Act, 1958.

In view of the said observation, the accused did not deserve any leniency for the sentence and was imprisoned for 5 years along with Rs 25000 fine.

https://www.scconline.com/blog/post/2022/01/21/53-year-old-man-molested-a-9-year-old-minor-boy-by-pressing-his-private-parts/

Husband’s company can have ‘Virat Kohli’ as a brand ambassador, but cannot provide maintenance to wife: Man tried appearing as a pauper? Saket Courts adjudicates

A District Court while addressing a case of maintenance claimed by a wife wherein the husband stated that he was a businessman but had no monthly income and was sustaining himself on charity and borrowing from relatives and friends, found that the husband’s company was one of the manufacturers of brand “too yum” and the brand ambassador of the said brand was ‘Virat Kohli’, hence it looked highly improbable that a company which is running into great losses was in a position to afford a celebrity of such stature for the advertisement of its product.

Court made an observation that “It cannot be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.”

This is indeed is a very interesting case from Saket Court of Delhi.

https://www.scconline.com/blog/post/2022/01/20/maintenance-to-wife/


National Consumer Disputes Redressal Commission


 Minor treated for “Measles” instead of “Stevens-Johnson Syndrome” due to wrong diagnosis and leading to medical negligence

Due to doctor’s lack of skill and reasonable standard of care a minor was wrongly treated due to wrong diagnosis.

In an unfortunate case of medical negligence, wherein an Ayurveda Doctor gave wrong treatment to a child i.e. gave the treatment of Measles instead of Steven Johnson Syndrome, Commission observed that,

 The patient at her young age of 12 years suffered very serious and potentially fatal SJ syndrome. It was the patient’s sheer good luck that she survived in spite of such grossly inappropriate/inadequate treatment at every stage.

Therefore, the patient was awarded a lump sum amount of Rs 10 lakhs.

https://www.scconline.com/blog/post/2022/01/28/medical-negligence-6/


Legislation Updates


CISF issues circular to implement “One Hand Bag Rule” in airports more strictly 

A new circular has been issued by Central Industrial Security Force (CISF) which handles airport security on January 19, 2022. As per the circular, no passenger shall be permitted to carry more than one hand bag, other than the exceptions issued by the Bureau of Civil Aviation (BCAS). The circular noted that passengers are flouting the rule and on average carrying 2-3 bags to the screening point which causes congestion and inconvenience to other passengers.

CISF has instructed all airlines and airport operators to implement the ‘One Hand Bag Rule’ more meticulously to ease out congestion.

https://www.scconline.com/blog/post/2022/01/25/cisf-issues-circular-to-implement-one-hand-bag-rule-in-airports-more-strictly/

Gas Cylinders (Amendment) Rules, 2022 

The Amendment requires all the high pressure cylinders and Cryogenic containers used for filling of Non-Toxic, Non-Flammable Gases and Liquids to have permanent and tamper proof marking in form of Bar Code or RFID or QR code or any means of electronic identification number at conspicuous place on cylinders and containers.

https://www.scconline.com/blog/post/2022/01/28/high-pressure-cylinders-and-cryogenic-containers-used-for-filling-non-toxic-gases-and-liquids-to-have-tamper-proof-markings-vide-gas-cylinders-amendment-rules-2022/

Drugs (Amendment) Rules, 2022 

The amendment requires every active pharmaceutical ingredient (bulk drug) manufactured or imported in India to bear Quick Response code on its label at each level packaging that store data or information readable with software application to facilitate tracking and tracing.

The Amendment Rules will come into force from January 01, 2023.

https://www.scconline.com/blog/post/2022/01/22/qr-codes-on-active-pharmaceutical-ingredients-mandatory-vide-drugs-amendment-rules-2022/

High Court Round UpLegal RoundUp

82 Judgments from the High Courts of the Country, you wouldn’t want to miss. Here’s a short recap from the month of January 2022.


Allahabad High Court


Strikes by Advocates

To condole demise of any member or anyone else, can Members of Bar obstruct functioning of Courts? All HC decides

J.J. Munir, J., expressed that,

The Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts.

Read full report here…

Motor Accident Claim 

Taking Rs 15,000 as notional income of a family member who is non-earning, in a motor accident claim: Is it reasonable? All HC decides

The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., enhances quantum of award of a non-earning member in a motor accident claim, while referring to the Supreme Court decision in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060.

Read full report here…

Settlement

Settlement terms decided by Mediation and Conciliation Centre, can be the reason for quashing of an FIR under S. 482 CrPC: All HC

Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.

Read full report here…

Maintenance

Can wife claim maintenance under S. 125 CrPC where appeal is pending against divorce granted under S. 13 HMA? All HC decides

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

Read full report here…

Caste System

“…we boast ourselves as an educated society, but we live our lives with double standards”: Allahabad HC condemns prevailing caste system even after 75 years of independence

While expressing that “Caste system in our society is deeply rooted, we boast ourselves as educated society, but we live our lives with double standards” Rahul Chaturvedi, J., granted bail to an accused of cold-blooded murder in an alleged honour killing case. 

Read full report here…


Andhra Pradesh High Court


 LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? HC answers

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner

Read full report here…


Bombay High Court


Feeding of Dogs

Feeding of Dogs inside complex v. Feeding of Dogs outside complex: Bom HC appoints amicus curiae to assist Court in resolving dispute

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., addressed a matter in which a dispute revolved with regard to the feeding of dogs in the society complex.

Read full report here…

Elections for Sarpanch

Candidate contesting elections for Sarpanch post making “self-declaration” that he/she has “toilet” at their residence, is sufficient compliance under Maharashtra Village Panchayat Act? Bom HC examines

G.S. Kulkarni, J., considered the question,

Whether a “self-declaration” made by a candidate contesting elections to the post of Sarpanch, that he/she has a “toilet” in a house where he/she resides was sufficient compliance, to be not disqualified under Section 14(1) (j-5) of the Maharashtra Village Panchayat Act, 1959?

Read full report here…

Domestic Violence Act

Whether right to claim monetary reliefs, protection order and compensation under the D.V. Act, extinguish on death of “aggrieved person”? Bom HC explains

Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.

Read full report here…

Employees Compensation Act

Can ‘minor’ who succumbed to an accident during course of employment be compensated under Employees Compensation Act or Insurance Company will be absolved of its liability? Bom HC explains

Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.

Read full report here…

False Promise of Marriage

False promise of marriage to satisfy lust, leading to offence of cheating and rape?: Bom HC refuses to quash FIR for offences under Ss. 376, 417 IPC

The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ.,  refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.

Read full report here…

Law on Section 498-A IPC

Can an alleged girlfriend be arrayed as an accused in a crime registered under S. 498-A IPC? Bom HC reiterates SC’s observation

The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., reiterated that an alleged girlfriend cannot be arrayed as accused in an offence registered under Section 498-A of Penal Code, 1860.

Read full report here…

Maintenance to Senior Citizen

Son ousted benighted widowed mother, deprived her right to “live a normal life” apart from maintaining and supporting her livelihood: Bom HC

G.S. Kulkarni, J., while addressing another unfortunate case concerning a mother who was ousted from the tenement she owned by her own son. In view of the said, Court expressed that,

This appears to be another clear case where the petitioner(son) has no other intention but to enjoy the tenement exclusively, ousting the roof over his mother’s head, taking advantage of her incapacity at such an old age.

Read full report here…

Property

Can a girl be treated as property and given in donation? Bom HC addresses in light of “Daanpatra” executed by father of a daughter

“When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.”

Read full report here…


 Calcutta High Court


 Compassionate Appointment

Daughter-in-law who obtains compassionate appointment by stating that she will take responsibility of her mother-in-law is bound by that undertaking: Cal HC

80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.

Read full report here…


 Delhi High Court


Termination of Pregnancy

Foetus with severe cardiac anomaly, but pregnancy beyond 24 weeks: Can a mother be permitted for termination of pregnancy? Del HC explains in light of ‘mental health’ of mother

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Read full report here…

Arbitration

Future Retail seeking to terminate arbitration proceedings with Amazon: Read Delhi HC’s decision on 4 significant points

Amit Bansal, J., noted that,

“…there is only a very small window for interference with orders passed by the Arbitral Tribunal while exercising jurisdiction under Article 227. The said window becomes even narrower where the orders passed by the Arbitral Tribunal are procedural in nature.”

Read full report here…

‘Stay’ on proceedings before Singapore Tribunal; Prima Facie case in favour of Future Group

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., stayed the arbitration proceeding in Amazon v. Future Group before the Singapore Tribunal.

Read full report here…

Arrest and Incarcerations

‘Arrest, incarceration destroys a person and affects innocent relatives’: Del HC sentences police officer to 1-day SI for contempt of court, breach of directions in Arnesh Kumar case

Najmi Waziri, J., observed that “Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”

Read full report here…

Divorce

“Overseas wife”, 11 years old marriage, husband visited wife for few days on yearly visits from Canada: A moribund marriage or not? Del HC decides

While addressing a matter of divorce proceedings, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

“…every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.”

Read full report here…

Bail

Delhi HC explains when a Court can seize liberty of an accused undertrial

Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

Read full report here…

Can gravity of offence be the sole ground to deny bail? Del HC decides in a multi-person scam involving Rs 200 Crores

Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.

Read full report here… 

Compromise

Will Delhi HC allow waiving off alleged offence of rape in view of compromise and subsequent marriage between complainant and accused? Read to know

Stating that, Rape is an act against society, Rajnish Bhatnagar, J., held that simply entering into a compromise allegation of rape will not lose its gravity.

Read full report here…

Desertion

Wife refused to join company of husband on ground of ‘auspicious time’. Would this amount to ‘desertion’ by wife? Chh HC elucidates

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., held that the wife refusing to join the company of her husband in view of waiting for auspicious time, would amount to desertion. 

Read full report here…

Disinvestment

Dr Subramanian Swamy’s plea that Air India’s Disinvestment is arbitrary, illegal, corrupt: 5-pointer report of Del HC decision

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., dismisses Dr Subramanian Swamy’s plea stating that any delay in the process of disinvestment of Air India would cause loss to public exchequer, besides creating uncertainty amongst the existing employees.

Read full report here…

Matrimonial Expenses

‘Unmarried daughter, even if earning, can’t be assumed to have sufficient resources to meet matrimonial expenses’: Del HC orders father to pay marriage expenses of daughters

 Father’s duty to maintain his unmarried daughters, including his duty to provide for their marriage is clearly recognized by the law.

Read full report here…

Sexual Assault

 Del HC upholds conviction for rape and penetrative sexual assault where ‘wife’ was below 18 yrs of age

Mukta Gupta, J., decided an appeal challenging the impugned decision whereby the appellant had been convicted for the impugned decision whereby he had been convicted for offences punishable under Section 376 of Penal Code, 1860 read with Section 4 of the POCSO Act and the order on sentence dated 15-1-2020 whereby the appellant had been directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 10,000, in default whereof to undergo simple imprisonment for a period of six months. 

Read full report here…

False invocation of Ss. 354A, 506 IPC merely trivalises offence of sexual harassment casting doubt on veracity of allegations by victim who has in reality faced sexual harassment: Del HC

Subramonium Prasad, J., expressed its anguish at how provisions such as Sections 354A/506 of Penal Code, 1860 are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.

Read full report here…

Trademark

Why is ‘Rooh Afza’ seeking injunction against ‘Dil Afza’? Here’s how Del HC stressed upon ‘deep emotion’ while deciding

Buying a bottle of sharbat may involve emotions, but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case, those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’.

Read full report here…

Del HC restrains Courtyard Holidays World Private Limited from using registered trademark “COURTYARD”: Read a detailed report on trademark infringement case

Asha Menon, J., in a trademark infringement case, restrained the ‘Courtyard Holidays World Private Limited’ from using the impugned marks “COURTYARD”, “COURTYARD HOLIDAYS”, “COURTYARD HOLIDAYS WORLD”, and/or any other mark/logo or label and/or domain name which is identical or similar to the Plaintiff’s registered trademarks “COURTYARD”.

Read full report here…

Conviction

Son-in-law inflicts injury with axe on mother-in-law and wife, Challenges conviction under S. 307 IPC: Del HC revisits law while refusing to interfere

It is trite law that for conviction for an offence punishable under Section 307 IPC, it is not necessary that the victim should suffer an injury and, in a case, where the offence is committed with an intention to commit the murder of the victim, Section 307 IPC would be attracted as in the case of firing when no resultant injury is suffered by the victim.

Read full report here…

Faceless Assessment Scheme

Provision of Personal Hearing would defeat the purpose of Faceless Assessment Scheme? Del HC decides

The Division Bench of Manmohan and Navin Chawla, JJ., while focusing on the principles of natural justice and right to personal hearing observed that,

“Faceless Assessment Scheme does not mean no personal hearing.”

“An assessee has a vested right to personal hearing and the same has to be given, if an assessee asks for it.”

Read full report here…

Judicial Overreach

Photograph of summons sent through WhatsApp as an addition to ordinary process would amount to Judicial Overreach? Del HC decides

Amit Bansal, J., expressed that

Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system.

Read full report here…

Insurance Claim

Whether insurance company is liable to pay claim even if vehicle stolen and unauthorisedly driven? Del HC decides

…if the proposition of the insurance company was accepted, it would militate against the very concept of a beneficial legislation for the victims of an accident. If such a finding were to be returned then the effect would be that even though a vehicle is insured but is stolen, not only would the insurance company be entitled to avoid its liability but the owner of the vehicle who has insured his vehicle against theft and accident would be saddled with a liability for no fault of his.”

Read full report here…

Law on Rejection of Plaint

Contents of plaint or Examining sufficiency of plaint? Del HC explains the bounden duty of Court

Prateek Jalan, J., expressed that,

For the purposes of an order under Order VII Rule 11 of the CPC, the Court must come to the conclusion that the plaint is required to be rejected.

Read full report here…

Victims’ Rights | Fair Trial

Fair trial is the hallmark of criminal procedure, it entails not only rights of victims but also interest of accused: Delhi HC

“It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.” 

Read full report here…

Maintenance

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

Read full report here…

Misconduct

Customer produced to prove the guilt of misconduct by Conductor of DTC Bus: Is it correct? Del HC answers while reiterating established position of law

Prathiba M. Singh, J., while examining a case which was dismissed 30 years ago with regard to a workman’s misconduct, reiterated the well-established law that, customers’ need not be produced in such proceedings in order to prove the misconduct of the workman.

Read full report here…


 Gujarat High Court


Conjugal Rights

Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Guj HC answers

A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.

Read full report here…

POCSO

Court goes beyond the relief sought, helps POCSO victim to become self-sufficient

The Division Bench of Sonia Gokani and N.V. Anjaria, JJ. went beyond the case to help a POCSO victim to continue her further studies from her parental home. Order was issued against a Criminal Misc. Application filed by the desirous victim pleading the Court to allow her to handover the custody of her minor daughter and join her parents. The applicant was called before the Court with her child before passing of the order.

Read full report here…

Senior Citizen Act

Senior Citizen Act cannot rescind Domestic Violence Act

“The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislation have to be harmoniously construed.”

Read full report here…


Himachal Pradesh High Court


Internet Services

Petition filed highlighting the plight of residents of the State regarding internet services in view of virtual classes/courtrooms etc.; Elaborate suggestions laid down

A Division Bench of Tarlok Singh Chauhan and Chander Singh Barowalia JJ.  directed the respondents to comply with the directions given and report compliance on the next date of hearing.

Read full report here… 

Compassionate Appointment

Compassionate appointment is not a matter of right but subject to policy changes; appointment rightly rejected to son as mother is already employed with PWD

Read full report here…

Order 18 Rule 17-A CPC

Power under Or. 18 R. 17 CPC cannot be invoked to fill up omission in the evidence already led by a witness

“…basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court.”

Read full report here…


Jammu and Kashmir High Court


Dowry Death

Dowry Prohibition Act vis-a-vis J&K Dowry Restraint Act; HC blurs the line between the two

In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,

“The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.

Read full report here…


Jharkhand High Court


 Maintenance

What is the effective date of grant of maintenance? Is it the date of judgment or the date of filing of maintenance application?

Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

Read full report here…

Civil Services

Mistakenly entered wrong digit of Roll No. in OMR sheet? Can one seek to add obtained scores when the sheet is rejected by Scanning Machine? HC answers

 S.N. Pathak, J., rejected the petition filed by a civil services candidate, who was declared unsuccessful in prelims examination due to darkening wrong last digit of roll number in OMR sheet. The Bench stated,

“May be the petitioner has not intentionally darkened digit 6 instead of 8, but sympathy has no place in the eyes of law. The law will prevail in view of the terms and conditions as mentioned in the Advertisement, Admit Card and that of the Rules framed by the JPSC.”

Read full report here…


Kerala High Court


 CLAT PG-2021

Is confining Selection process of NTPC to CLAT PG-2021 candidates only prima facie discriminatory? HC to decide

V.G. Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.

Read full report here…

Guardian of Property

Guardian of Property v/s Guardian of Person of the minor; HC clarifies jurisdiction of District Court

The Division Bench of A. Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.

Read full report here…

Maintenance

Right to maintenance of child born out of inter-faith marriage: Is father under obligation to maintain his children even when there’s no statutory stipulation? HC answers 

In a significant case regarding Right to maintenance of child born out of inter-faith marriage, the Division Bench of Dr. Kausar Edappagath and A. Muhamed Mustaque JJ., held that the child being non sui juris, the State and the Courts as Parens Patriae are bound to protect it irrespective of law being silent in this regard. The Bench expressed,

“We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children.” 

Read full report here…


Karnataka High Court


 Sale Deed

Will an ex post facto approval validate a sale deed where prior approval by State Government was a statutory prerequisite? HC answers

Read full report here…

Bail

Bail order not containing cogent reasons liable to be set aside for non-application of mind

The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order

Read full report here…

Social Classification

Persons with disability are a homogenous class irrespective of social classification; such classification can’t be impeached by linking it with Art. 16 or Art 15

“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”

Read full report here…

Motor Accident

“If relief is not moulded by awarding higher compensation, we will be failing in our duty”; Kar HC discussed compensation vis a vis permanent sexual disability in motor accident cases 

The Court observed that the Motor Vehicles Act, 1988, is a benevolent legislation and the duty is cast upon the Tribunal to award just and fair compensation to the victim of a Motor Vehicle Accident and thus taking into consideration the inflation and constantly depreciating purchasing power of the rupee, the court deemed deem it appropriate to enhance the compensation.

Read full report here…


 Madras High Court


 Right to Relax

Right to Relax in danger? Would installing CCTVs in spas and massage parlours infringe bodily autonomy of a person? Madras HC pens down its view

“Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.”

Read full report here…

License

Clubs allowing members to bring liquor purchased from outside, and drink without FL-2 license. Is it permissible? Madras HC examines, Issues directions 

“Any Association, Club or otherwise cannot go beyond the scope of its bye laws and the Competent Authorities under the Societies Registration Act are also empowered to initiate action for violation of the bye-laws.”

Read full report here 

Compensation

Rat-bite in hospital, compensation claimed: Madras HC relies on newspaper report since no rejoinder was given by Hospital

“….while examining a particular fact in the Writ Petition, strict rules of evidence do not apply but existence of a fact can be taken judicial note by surrounding circumstances…”

Read full report here…

Outrage the religious beliefs

Expressing opinion with regard to temple restoration, would amount to attract an offence under S. 295-A IPC? Report on Madras HC decision 

G.R. Swaminathan, J., quashed an FIR stating that S. 295-A IPC is attracted only if there is deliberate and malicious intent to outrage the religious beliefs of a particular class.

Read the full report here…

‘On Judgement Day, God shall admonish petitioner for committing un-Christian act’: Read whether Madras HC holds Catholic Priest prima facie accountable under S. 295A IPC for using ‘Bharat Mata’ and ‘Bhuma Devi’ in offensive manner

To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity. 

Read full report here…

State Revenues

Cases involving large scale revenue unresolved for several years, leading to looting of nation’s properties: Read what Madras HC observes

There is a Grouping Section, which is functioning in the High Court. The said Section must be utilised for collecting large scale revenue involved cases now pending before the High Court for many years and the Registry must place all those cases before the Hon’ble the Chief Justice for speedy disposal.

Read full report here…

Conjugal Rights

Whether denial of conjugal rights to a prisoner amounts to violation of Art. 21 of the Constitution of India?  Madras HC answers in light of “extraordinary circumstances”

Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Read full report here…


 Madhya Pradesh High Court


 Arbitration

Dismissal of application under S. 34 of Arbitration and Conciliation Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award 

Vishal Dhagat, J. expressed that, dismissal of application under Section 34 of Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award, therefore, appeal under Section 37 will be maintainable if application under Section 34 is dismissed on ground of limitation. 

Read full report here…

Does Arbitral Tribunal have exclusive jurisdiction to settle disputes relating to “works contract” in State of Madhya Pradesh under the scheme of M.P Madhyastham Adhikaran Adhiniyam, 1983? MP HC explains

Bench expressed,

“…the Act of 1983 provides that whether the parties to a “works contract” incorporate an arbitration agreement or not, any dispute relating to “works contract” shall fall within the exclusive jurisdiction of the Tribunal.”

Read full report here…

Courts should emphasize on bridging the gap between the time period of reservation and delivery of the judgment

“It is the need of the hour to emphasize over the need to pronounce judgment expeditiously and curtailing the time gap between reserving of a case and pronouncing of judgment to the bare minimum, it is vivid that the Tribunal heard and reserved the original application preferred on 20.02.2019 whereafter the impugned judgment was pronounced by the Tribunal on 17.01.2020 i.e. after nearly 11 months, which is a very long period of time”

Read full report here…

State saddled with costs for colourable exercise of power reflecting favours; petition allowed

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed petition filed under Article 226 of the Constitution filed by Smt Rampyari Patel and quashed impugned order dated 06-07-2021 passed by State Government.

Read full report here…

Disciplinary Proceedings

Delinquent employee in disciplinary proceedings has statutory right to engage a Defence Assistant

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed the petition filed under Art 226 by an employee facing disciplinary proceedings.

Read full report here…

 Strike

It is duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike; Court dismisses appeal

Sujoy Paul, J. dealt and dismissed a petition while highlighting the increasing issues of strikes and boycotts by the lawyers.

Read full report here…

Reservation

Difficult Areas vis-a-vis Difficult Services, Issues of reservation and incentive marks; HC puts an end to the battle between Doctors and State

 “If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

Read full report here…

 Kazi

 Can a Kazi adjudicate disputes like a Court and pass an order like a decree? MP HC answers

“If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.”

Read full report here…


Orissa High Court


Investigating Agency

Court can neither be a mute spectator to the whims and fancies of the investigating agency nor be a party to it; Ori HC observes in a case where final form was submitted after 15 years

The Court held that the inaction of the investigating agency to conclude the investigation for as long as 15 years, that too, without offering even a semblance of explanation is a direct affront to the cherished principle of right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India.

Read full report here…

Public Interest

Retaining an employee in service if he lacks in the standard of efficiency required to discharge the duties of the post he presently holds is not in public interest

“The Court observed that the object of compulsory retirement is to weed out the dishonest, the corrupt and the deadwood. It is true that if an honest Judicial Officer is compulsorily retired it might lower the morale of his colleagues and other members in the service.”

Read full report here…


Punjab and Haryana High Court


 Live-in-relationship

Merely living together for few days is not live-in-relationship; HC imposes cost of Rs 25000 on runaway couple

In a case where a young couple who had started living in a hotel two days ago had approached the Court for protection, Manoj Bajaj, J., imposed a cost of Rs. 25000. The Bench expressed,

“Merely because the two adults are living together for few days, their claim of live-in-relationship based upon bald averment may not be enough to hold that they are truly in live-in-relationship.”

Read full report here…

Bail

Long custody is an essential factor for granting bail under UAPA; HC grants bail to woman lodged in jail along with her infant in connection with a Facebook post

Anupinder Singh Grewal, J., granted bail to the woman who was in custody along with her barely two years old infant in connection with alleged offence committed under UAPA. The main allegation against the petitioner was with regard to a Facebook post supporting banned organization ‘Sikhs for Justice 2020 Referendum’.

Read full report here…

Divorce

Are Recordings of Private Conversation between Husband and Wife permissible as evidence under S. 13 of HMA, 1955? HC decides 

Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Read full report here…

Investigation

P&H HC stresses upon adopting contemporary methods of investigation rather than taking third-degree shortcuts

Bench reiterated that,

“police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force.” 

Read full report here…


Rajasthan High Court


Mother tongue or English as a medium of instruction? Raj HC dealt with the issue when State decided to convert a Hindi medium school to English medium

“…the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19.”

Read full report here…

Police Protection

Courts are not meant to provide police protection to youths who have fled to marry according to their own wishes; Raj HC reiterated

The Court observed that in a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society. If any person misbehaves or manhandles them, the Courts and police authorities are there to come to their rescue, but they cannot claim security as a matter of course or right.

Read full report here…

Pecuniary Jurisdiction

Objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity in accordance with S. 21 CPC

“no such objection was taken by the defendants at the earliest stage or not during the course of trial when it reached to its final stage. Now at the stage of final disposal, the application has been submitted which has been accepted by the learned court below by overlooking the mandatory provisions contained under Section 21 of the Code of Civil Procedure.” 

Read full report here…

Reverse Burden of Proof

Burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities, need not be proved beyond all manner of doubt

Read full report here…


Telangana High Court


 Section 138 NI Act

A joint account holder cannot be prosecuted unless and until he/she is a signatory to subject cheque

“…Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Section 138 of N.I. Act  that “such person shall, be deemed to have committed an offence,, refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I. Act.”

Read full report here…


Tripura High Court


Insurance Company

Compensation amount limited to amount claimed, Insurance Company’s liability reduced

S.G. Chattopadhyay, J. in the concerning matter to Parimal Das, held that the person claiming compensation should receive the amount not more than what he claimed. However, this doesn’t mean that the court is powerless to not award more compensation than the amount claimed.

Read full report here…

DNA Testing

Unless and until there is a challenge to the personal documents, direction cannot be given for DNA testing; Court dismisses appeal

Amarnath Goud, J., dealt with a petition wherein the case of the petitioner was that the respondent was not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent was selling the properties which were in dispute before the trial court. Petition further prayed to reconsider DNA testing approval which was dismissed earlier.

Read full report here…

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of the following Advocates as Judges in the Orissa High Court:

1. Shri V. Narasingh,

2. Shri Sanjay Kumar Mishra,

3. Shri Biraja Prasanna Satapathy, and

4. Shri Sri Raman Murahari @ M.S. Raman.


Supreme Court of India

[Statement dt. 29-1-2022]

Op EdsOP. ED.

Introduction

The former Chief Justice of India, Justice Sharad Bobde in his address at the launch of Supreme Court Vidhik Anuvaad Software (SUVAS)[1] on the National Constitution Day, 2019, stated,  “While technology has enabled us to go paperless in many courts and go digital, if not all the way then substantially, in many courts, we now have the benefit of modern artificial intelligence tools that will assist in improving the efficiency of our justice system through sophisticated and contextual automation of existing repetitive non-judicial tasks and functions to reduce pendency, expedite judicial adjudication and create more time for Judges to resolve complex cases.” The unprecedented outbreak of COVID-19 Pandemic has largely affected the functioning of our courts across India and only very urgent matters are being heard through videoconference facilities after the lockdown.  The Supreme Court of India had issued guidelines in order to direct the courts at all levels to frame mechanism for using online videoconferencing till the normalisation of the situation.[2] While High Courts and many District Courts continue to hear cases online, some lawyers find it difficult to argue complex cases with volumes of files through videoconferencing. Moreover, there is need for standardisation and consistency in deployment of software tools and practices in embracing virtual courts in India[3]. It is being debated whether free and open source based products (such as used in e-courts project) would be suitable or should customised enterprise-based model be adopted involving private players for virtual courts?

After the successful launch of the e-courts project, the e-courts filing software is available for use in 21 High Courts and 18,000 District Courts of India[4]. However, despite funds sanctioned, most High Courts had not recruited required trained personnel for e-courts project. So far only in few High Courts such as the Delhi High Court, there are functional e-courts where pleadings are digitised and accessible by lawyers and Judges through the use of computers. Fortunately, online dispute resolution (ODR) and dispute resolution has been adopted by many countries including India and holds promising future for virtual courts in India. Centre for Online Dispute Resolution (CODR), Sama, Presolv360, Centre for Alternative Dispute Resolution Excellence (CADRE) and Crek ODR are few popular ODR platforms. Likewise, automation, artificial intelligence and robots have begun deciding traffic challan cases not just in USA but also in India.

National Informatics Centre has been involved in the computerisation of courts since 1990 and continues to do so to bring speedy access to justice to all litigants across India. In the present day, where the number of internet users have increased to 59% in India[5], the proposition of having “virtual courts” is considered to be more feasible than ever before. Therefore, institutionalising of the technology in the court process is the need of the hour.[6]

I. E-Courts Mission Mode Project

The e-Courts Mission Mode Project has brought a remarkable change in the litigation landscape of India. E-courts website features numerous litigant-centric services like finding the case status, electronic cause lists, and easy access to daily orders in PDF formats.[7] From a data gathering perspective, arguably the e-courts project’s greatest achievement has been the creation of the National Judicial Data Grid (NJDG).[8] The e-filing manual provides for complete process on how records at courts could be digitised and filed.[9] In August 2018, three applications were launched which included e-Filing, e-Pay and NSTEP (National Service and Tracking of Electronic Processes). E-court filing facility also enables a litigant to pay court fees online. Moreover, the National Service and Tracking of Electronic Processes provides transmission of processes to different court complexes and also to mobile application of the Court Officer. The process involves enabling of Global Positioning System (GPS) in order to provide the photograph and signatures of the appropriate person after the service is provided. For giving the information to the litigants regarding the status of their case, there also exists facility via e-mails or text messages.[10]

II. Embracing virtual courts

In the backdrop situation of worldwide pandemic, the shift to virtual court was a real challenge. A committee of seven Supreme Court Judges[11] led by Justice N.V. Ramana decided not to revert to the concept of physical hearing and follow the system of virtual courts as it eliminates the risk due to physical presence of the litigants and lawyers in the process of adjudication.[12]

In the year 2019, the Delhi District Courts established its first e-court, that initially dealt with the matters related to the traffic challans online. Justice Chandrachud urged Chairpersons of e-Committees of various High Courts to build such Information and Communications Technology (ICT) capacities and create virtual courts for other petty violations.[13] In April 2020, the High Court of Telangana passed directions for conduct of hearings through videoconferencing in the State till the time of pandemic. Moreover, the Bombay High Court issued special directions in connection with live streaming of matters listed for hearing in April 2020 before Justice G.S. Patel. Prior to this the Kerala High Court had live streamed its hearing for general public through Zoom App.[14] Therefore, both need and pace at which virtual courts have been adopted in India has been phenomenal and a major milestone toward adoption of technology in access to justice delivery in India.[15]

III. Adoption of virtual courts in other countries

During the pandemic, countries such as UK, China, Canada, Singapore and Netherlands have actively adopted virtual courts. Whereas, the Supreme Court of USA has been hearing the arguments through telephone conference and lower courts, like the United States District Court for the Eastern District of New York have issued a number of administrative orders regarding the administration of justice. One such order empowers Judges to conduct proceedings by telephone or videoconferencing where practicable.[16] In United Kingdom the Ministry of Justice[17] and Judiciary[18] has allowed using of remote hearing methods such as videoconferencing. However, in order to make the hearing public and to safeguard the principle of open justice, the media persons have been allowed remote access.[19] Moreover, the UK Coronavirus Act, 2020, enables the use of video and video enabled courts for conducting proceedings with all parties at remote locations given the emergency situation.[20]

The Supreme Court of China ordered the courts of all level to operate through online platform amidst Coronavirus Pandemic. Courts at all levels to guide litigants to file cases or mediate disputes online, empowering Judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get adequate legal services and protection. In many provinces and cities, the Supreme People’s Court has been promoting “mobile micro court” usage on the WeChat social media site to help courts hold internet trials.[21] Also, the Supreme Court has made process quite convenient by allowing litigants to materials through the internet or by post, adding that people can dial 12368, a litigation service hotline, to follow their lawsuits or ask for legal services.[22]

In Ontario, the Supreme Court has extended the video and telephonic conferencing from urgent matters to all the matters. E-filings are being permitted using electronic signatures. Moreover, members of the media and public can gain access to the proceedings by e-mailing their requests to the court staff.[23]

The Supreme Court of Singapore, too, has issued guidelines for using audio and videoconferencing for hearing matters using Zoom.[24] It has introduced the COVID-19 (Temporary Measures) Act, 2020, that allow court proceedings to be conducted using remote communication technology such as teleconference, videoconference, and e-mail so that physical attendance in the courtroom can be minimised or dispensed with.[25]

In Netherlands, all disputes before a Single Judicial Judge are heard at a teleconference and all appeals and demands are electronically heard (via videoconferencing or telephone) before a trialogue.[26]

Similarly, in China, court-annexed ODR which enables dispute resolution through alternative dispute resolution (ADR) methods has great potential to resolve COVID-19 related disputes efficiently without burdening traditional courts.[27]

IV. Rise in the online dispute resolution in India

The online dispute resolution is defined by the United Nations Commission on International Trade Law Working Group as “a mechanism for resolving disputes accelerated through the use of electronic means of communications and other information and communication technology”.[28] ODR is conspicuous, fast, easily accessible and cost-effective. Online dispute resolution is considered as ADR and it includes mediation, negotiation or arbitration but is restricted to civil cases where both parties have given their mutual consent. Out of these, ODR mediations are 70% preferred, it has proven as the most effective mode for dispute resolution.[29] There are few ODR platforms that have made the process quite convenient as well as efficient.

CADRE (Centre for Alternative Dispute Resolution Excellence) is a website-based manifesto for ODR in which one party addresses the platform and then contact the other party. When both the parties agree, an arbitrator is appointed, the parties in the dispute do not come in contact face to face but through electronic means such as video calls. The details regarding the meeting are sent to both parties through e-mails or WhatsApp. The result of the meeting which is lawfully binding comes out within 20-25 days of time. Moreover, this particular platform has been engaged in resolving tenant and rental contract dispute for NestAway an online rental start-up.[30]

Another popular ODR platform is Sama that provides for the convenient approach to high-quality ADR service providers and assists the public to resolve disputes online. Sama is being used by ICICI Bank as an ODR platform to resolve around 10,000 disputes with values rising up to INR 20 lakhs. [31]

The Centre for Online Dispute Resolution (CODR) is an institution that handles cases online end-to-end. The decision is made unbiased and confidentiality is maintained.[32]

Agami is a non-profit ODR platform that aims to create a better system of law and justice by providing time stamping and convenient dispute resolution method[33].

V. Key issues and suggestions

The pandemic situation disrupted normal life and separated the employees from their offices, and virtual courts became access to justice lifeline.[34] Since the open courts stopped working, the courts have been hearing only urgent matters through videoconferencing.[35] While some policymakers, find virtual court hearings convenient others find it cumbersome, particularly those who are not so technologically savvy or where volumes of files are required in a case.  On the other hand, it is easy for litigants to have their cases heard even if they are in far-flung areas but in district level, required technology and tools may not be adequate or not available.[36] Some part of the public believes that open courts are irreplaceable since the fundamental principle in the administration of justice is that courts must be open to the public.[37]

There are also other challenges to adoption of virtual courts. Judiciary and our courts have access to a lot of sensitive data, a debate emerges on use of a private party to digitise such data and its safety.[38] Secondly, it is pertinent to adopt a standardised software tool or platform for virtual courts across India.[39] Thirdly, if virtual courts have become order of the day, extant laws such as the Information Technology Act, 2000[40] and the Evidence Act, 1872[41] may need to be amended along with that the Practice Manuals of Supreme Court, High Courts and the District Courts.[42]

ODR forum concept can accelerate adoption of virtual courts in India, particularly in petty claim matters such as traffic challans where AI-based software can decide cases. ODR forums will increase the chances in making virtual courts and online hearings more viable and efficient. It will help reduce the backlog of cases before various courts in India.

Finally, there is an urgent need to deploy more ICT at district level and increase training in use of these technologies.

While adoption of virtual courts has been quite rapid during the pandemic, its further growth requires addressing these key issues. Adoption of standardised tools, deployment of required technology, training are some of the pressing challenges. Adoption of virtual courts is favourable in many respects, such as elimination of location constraints, reduction in the outstation travel by the counsel concerned, minimisation in investment for court infrastructure. However, if virtual courts are not just a temporary measure as during the Covid Pandemic, a separate law to deal with the same will also need to be enacted and amending existing laws will become necessary. Also, it will be essential to cull our rules for filing electronic evidence for adoption by various courts in India and aligning it with e-filing project.[43] There is also an urgent need for technology deployment at district court level and training its personnel so that both virtual/hybrid courts can function.


LLB (Del), LLM (Lon), PhD (NIU). Author is an internationally renowned cyber law expert and Advocate, Supreme Court of India; and Founder of Seth Associates, a reputed law firm based in India.  Dr Seth is an official trainer to National Judicial Academy, National Police Academy and other law enforcement bodies and has authored several books and e-papers on cyber laws. Dr Seth is part of several expert committees formed by the Government and industry forums for bringing legal and policy reforms in information technology laws in the country. Author can be contacted at karnika@sethassociates.com.

[1] SUVAS provides appropriate real-time access to case status, display board, daily orders and judgments to the litigants and lawyers.

[2]Available at <https://vidhilegalpolicy.in/2020/05/01/virtual-courts-in-india-a-strategy-paper/> (accessed in July 2020) wherein the author expressed her views in a panel discussion on the subject organised by Vidhi.

[3]Available at <https://vidhilegalpolicy.in/2020/05/01/virtual-courts-in-india-a-strategy-paper/> (accessed in July 2020) wherein the author expressed her views in a panel discussion on the subject organised by Vidhi.

[4]E-filing software was launched in 2018 by  Chief Justice of India when the Chairman of e-Committee of  Supreme Court of India, was Justice Madan B. Lokur.

[5]Available at <https://www.statista.com/statistics/617136/digital-population-worldwide/> (accessed in July 2020).

[6]Available at <https://vidhilegalpolicy.in/2020/05/01/virtual-courts-in-india-a-strategy-paper/> (accessed in July 2020) wherein the author expressed her views in a panel discussion on the subject organised by Vidhi.

[7]Available at  <https://doj.gov.in/sites/default/files/Report-of-Evaluation-eCourts.pdf> (accessed in July 2020).

[8]Available at <https://njdg.ecourts.gov.in/njdgnew/index.php> (accessed in July 2020).

[9]Available at  <https://ecourts.gov.in/ecourts_home/static/manuals/efiling-User-manual.pdf> <https://www.iasparliament.com/uploads/downloads/Current_Affairs_Magazine_February_2020_www.iasparliament.com.pdf> (accessed in July 2020).

[10]Available at <https://vidhilegalpolicy.in/2020/05/01/virtual-courts-in-india-a-strategy-paper/> (accessed in July 2020) wherein the author expressed her views in a panel discussion on the subject organised by Vidhi.

[11]The other Members of the Committee are Justices Arun Mishra, R.F. Nariman, U.U. Lalit, A.M. Khanwilkar, D.Y. Chandrachud and L. Nageswara Rao.

[12]Available at <https://www.thehindu.com/news/national/sc-to-continue-virtual-court-system/article31828053.ece>  (accessed in July 2020).

[13]Available at  <https://www.barandbench.com/news/use-of-technology-must-be-institutionalised-even-after-lockdown-justice-chandrachud-in-video-conference-with-hc-judges-manning-e-committees> (accessed in July 2020).

[14]Available at <https://www.lexology.com/library/detail.aspx?g=5e264a78-7b02-499e-9fb3-ee2aa9fa13fa> (accessed in July 2020).

[15]Available at <https://www.legalexecutiveinstitute.com/virtual-courts> (accessed in July 2020).

[16]Available at <https://www.nortonrosefulbright.com/en-nl/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings> (accessed in July 2017).

[17]Available at  <https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak> (accessed in July 2020).

[18]Available at <https://www.judiciary.uk/announcements/review-of-court-arrangements-due-to-covid-19-message-from-the-lord-chief-justice/> (accessed in July 2020).

[19]Refer to Point 3. Available at <http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51y-video-or-audio-hearings-during-coronavirus-pandemic> (accessed in July 2020).

[20]Available at <https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts/coronavirus-bill-summary-of-impacts> (accessed in July 2020).

[21]Available at <https://www.jurist.org/commentary/2020/05/sayra-kakkar-court-functioning-covid19/> (accessed in July 2020).

[22]Available at <http://english.court.gov.cn/2020-02/13/content_37533572.htm> (accessed in July 2020).

[23]Notice for Matters to be Heard in the Ontario Superior Court of Justice During the COVID-19 Emergency. Available at <https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notices-no-longer-in-effect/covid-19-suspension-crim/> (accessed in July 2020).

[24]Available at <https://www.supremecourt.gov.sg/docs/default-source/default-document-library/2020-03-27—guide-to-telephone-conferencing-and-video-conferencing.pdf> (accessed in July 2020).

[25]Refer to the COVID-19 (Temporary Measures) Act, 2020. Available at <https://sso.agc.gov.sg/Act/COVID19TMA2020> (accessed in July 2020).

[26]Available at <https://www.jurist.org/commentary/2020/05/sayra-kakkar-court-functioning-covid19/> (accessed in July 2020).

[27]Available at <https://theprint.in/opinion/indian-courts-prepare-different-kind-covid-crisis/410164/> (accessed in July 2020).

[28]Available at <https://www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf> (accessed in July 2020).

[29]Available at <https://www.mondaq.com/india/arbitration-dispute-resolution/935022/online-dispute-resolution-odr-a-positive-contrivance-to-justice-post-covid-19> (accessed in July 2020).

[30]Information available at  <https://www.cadreworks.org/cadre-continuum> (accessed in July 2020).

[31]Available at <https://www.sama.live/about-us.php> (accessed in July 2020).

[32]Available at <https://resolveoncord.com/index.html> (accessed in July 2020).

[33]Available at <https://agami.in/about/> (accessed in July 2020).

[34]Available at <https://www.globenewswire.com/news-release/2020/09/04/2089138/0/en/Global-Web-and-Video-Conferencing-SaaS-Industry.html> (accessed in July 2020).

[35]Available at <https://www.ndtv.com/india-news/coronavirus-supreme-court-says-virtual-courts-system-will-ensure-justice-amid-pandemic> (accessed in July 2020).

[36]Available at <https://www.indialegallive.com/top-news-of-the-day/news/virtual-courts-can-it-replace-open-court-hearings/> (accessed in July 2020).

[37]Available at <http://www.lawstreetindia.com/experts/columnlist> (accessed in July 2020).

[38]Adoption of Virtual Courts in India — A Strategy Paper by Vidhi, April 2020, available at <https://vidhilegalpolicy.in/wp-content/uploads/2020/07/20200501__Strategy-Paper-for-Virtual-Courts-in-India_Vidhi-1.pdf> (accessed in July 2020).

[39] Available at  <https://vidhilegalpolicy.in/2020/05/01/virtual-courts-in-india-a-strategy-paper/> (accessed in July 2020) wherein the author expressed her views in a panel discussion on the subject organised by Vidhi.

[40] Information Technology Act, 2000.

[41] Evidence Act, 1872.

[42]Author’s suggestions made during Webinar on Virtual Courts in India-JALDI (Justice, Access and Lowering Delays in India) Project of Vidhi Centre for Legal Policy.

[43]Suggestion made by the author during Webinar on Virtual Courts in India–JALDI (Justice, Access and Lowering Delays in India) Project of Vidhi Centre for Legal Policy.

Case BriefsHigh Courts

Madhya Pradesh High Court: Sujoy Paul, J. dealt and dismissed a petition while highlighting the increasing issues of strikes and boycotts by the lawyers.

The petition was regarding a request to classify the petitioner as permanent employee in pursuance of Government Circular from the date of his entitlement and pay all the consequential benefits, in the interest of justice.

In the present case, advocates were abstaining from work. However, Supreme Court in the case of Harish Uppal (Ex-Capt.) v. Union of India, (2003) 2 SCC 45 was of the opinion that despite the strike of the Advocates, the Courts may decide the matters on merit. The rationale behind the case was “law is already well settled and it is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. If a boycott call is given by the Bar Association, lawyer who has accepted a brief cannot refuse to attend Court. It is also settled that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. Courts are under an obligation to decide and hear cases brought before them, the matter cannot be adjourned if the lawyers are on strike. It is for the reason that if the Court does not go with the matters, it would tantamount to becoming a privy to the strike. “

A lot of similar judgments were also mentioned to support the above statements.

The petition was dismissed concluding that lawyers have no right to go on strike or call for boycott. If any protest is required, press statement, TV interviews, carrying banners/ placards outside court premises wearing black or white or any colour armbands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc.

It was reiterated that Lawyers must refuse to abide by any call for strike or boycott.

As per the pleadings, petitioner was not a civil post holder but an employee of a cooperative society. The petitioner had claimed benefit of Circular of Government and said circular showed that it was applicable to Government Departments and to the employee of Zila Panchayats, it could not be extended in favour of the employees of co-operative society.[Rajbahadur Baiga v. State of Madhya Pradesh, 2021 SCC OnLine MP 2619, decided on 20-12-2021]

Advocates were abstaining from work!


Suchita Shukla, Editorial Assistant has reported this brief.

District CourtLegal RoundUp

As we are approaching the end of 2021, let’s dive in to know all the important decisions that District Courts of India delivered along with some decisions on very important settled laws.

Top Stories


ICICI – Videocon Scam

‘It APPEARS that Chanda Kochhar has misused her official position in sanctioning loans to Videocon Group’: Read Court’s order issuing process against the former MD & CEO of ICICI Bank

Sessions Court, Greater Bombay issued summons, being of the prima facie opinion that Chanda Kochhar, Former MD and CEO of ICICI Bank may have misused her official position in sanctioning loans to Videocon Group and got illegal gratification through her husband.

Read more…

MJ Akbar v. Priya Ramani | #MeToo

Woman has a right to put her grievance at any platform of her choice even after decades || No defamation case against Priya Ramani

Rouse Avenue Court, New Delhi in an essentially significant decision revolving around the #MeToo movement, acquitted Priya Ramani (accused) and held that no case under Section 500 of the Penal Code, 1860 was found against her.

Read more…

State v. Tarun Tejpal | #MeToo

Destruction of crucial evidence, calculated narrative, conduct not natural of rape victim, et al.: 22-pointer comprehensive analysis of the 527-pages judgment of Sessions Court acquitting rape-accused Tarun Tejpal

District and Sessions Court at Panaji,  after a trial which went on for 7 years 2 months and 25 days, Kshama M. Joshi, Additional Sessions Judge, Mapusa, acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist working with Tehelka. The court gave benefit of doubt to accused, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.

Read more…

Toolkit Case

Freedom of speech includes ‘Right to seek a Global Audience’, Court draws distinction between dissenting opinion & seditious activities: Bail Granted to Disha Ravi || Detailed report

Law prescribes only such activities would be intended, or have intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. ‘Violence’ seems to be the gravamen of the charge.

Read more…

Delhi Riots

Delhi Court held that Umar Khalid cannot be permitted to remain behind bars in the present case on the basis of such a sketchy material against him and added that he cannot be made incarcerate in jail for infinity merely on account of the fact that other persons who were part of the riotous mob were to be identified and arrested in the matter.

Read more…

“Court is not insensitive towards the mental agony and the financial loss suffered by the complainant due to this incident. However, the sensitivity or the emotions alone are not the factors to be taken into consideration by the court while deciding the fate of any accused. These cannot take place of evidence. There should be sufficient and legally admissible evidence on the basis of which charges can be framed against an accused, which is lacking in the instant case.”

Read more…


Consumer Protection

State Consumer Dispute Redressal Commission, Odisha modified the compensation amount awarded to a Law Student in light of being subjected to ‘Deficiency of Service’ and ‘Unfair Trade by ‘Amazon’.

District Consumer Disputes Redressal Commission-II, Hyderabad ordered More Megastore Retails Ltd. to payback Rs 3 (with interest) that were charged from the complainant as the cost of the carry bag with company’s name and logo printed on it. The Commission also ordered More Megastore pay a compensation of Rs 15,000 to the complainant.

Read more…

Retailers/shopkeepers charging for plastic/paper/cloth carry bags with their Brand logos printed on them for which the consumers have to shell out extra amount from their pocket is not only unfair trade practice but also undue profiteering at the expense of the common man.

Read more…

Defamation

Any dereliction, negligence on the part of the editor, publisher of the newspaper would cause severe damage to the safety of the public, harmony among communities in the society. Public peace and tranquillity is the prime issue to be maintained in the civilized society.

Read more…

Crypto frauds

KYC is the responsibility of the intermediary and cannot be left to the individuals be it institutional transfer or person to person trade, with the intermediary shying away from the responsibility to ensure legitimacy of the source of money and establishment of real identity of the parties.

Read more…

COVID-19

Sessions Court, Jammu and Kashmir denied anticipatory bail to the person accused of obstructing the vaccination drive and spreading rumours regarding the vaccination.

Read more…

“Opinions can never substitute facts and for creation of an offence, certain facts constituting the offence need to be disclosed and not the mere possibilities as has been done in the present matter.”

Read more…

Red Fort Violence

Tis Hazari Courts, Delhi granted bail to a person alleged of inciting violence at Singhu Border and Red Fort in respect to the Farm Laws.

Read more…

Tis Hazari Courts, Delhi granted bail to the applicant Boota Singh, accused of inciting violence and disturbing law and order at Red Fort during Republic Day protest against controversial farm laws.

Read more…

Tis Hazari Courts, Delhi granted bail to the applicant Maninder Singh, accused of severely attacking and assaulting policemen on duty with his sword near the main entrance of Red Fort during Republic Day protest against controversial farm laws.

Read more…

Tis Hazari Courts granted bail to an accused Lakhbir Singh in Republic Day Violence, while noting that he had already joined the investigations and produced his mobile phone and disclosed that it was the same mobile phone which was being used by him on 26th January for recording videos and further uploading the same on his Facebook page.

Read more…

Hate Speech

“Freedom of speech has to be an integral part of any democratic country as in ours. However, this freedom has its own limitations and reasonable restrictions.”

 “Every citizen has a right to express his thoughts but not in a manner to target a particular community and promoting enmity.”

Read more…

Sessions Court, Gurugram granted bail to the Ram bhagat identified as Jamia shooter in a hate speech case. However, considering the nature of the offence alleged, the Bench imposed certain restrictions on the accused directing him not to organize or attend or address any public gathering which is likely to promote disharmony or feeling of enmity, hatred or ill-will between religious/racial groups/community or any gathering which is prejudicial to the maintenance of religious harmony or likely to disturb the public tranquillity.

Read more…

Property Dispute

Out of love and affection, a person can also contribute in the sale amount on behalf of other person and unless said fact is challenged by the former, the other persons have no right to question it. The mentioning of names as vendees in the registered sale deed clearly demonstrates the intention of the persons at the time of execution of the said document to create a right in favour of such persons. Had there been any contrary intention, names of such persons would not have been mentioned in the said sale deed.

Read more…

Dishonour of Cheque

Saket District Court found the accused guilty of an offence under Section 138 of the Negotiable Instruments Act, where the accused had admitted signatures on the cheque and also failed to make the payment within 15 days of receipt of summons.

Read more…

Tis Hazari Courts, New Delhi, while noting the ingredients of Section 138 of the Negotiable Instruments Act, 1881 acquitted a person charged for offence punishable under Section 138 NI Act.

Read more…

Patiala House Courts, New Delhi acquitted the accused of offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1885, holding that the accused successfully dislodged the statutory presumption.

Read more…

Saket Courts, New Delhi reiterated what is expected of an accused to rebut the statutory presumption against him in cases of cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881.

Read more…

If the accused is able to raise a probable defence, which creates doubt about the existence of legally enforceable debt or liability, the onus shifts back to the complainant.

Read more…

Saket Courts, Delhi convicted the accused for an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881. While delivering the judgment, the Court reiterated the well-settled position of law and discarded various defence taken by the accused.

Read more…

Dwarka Courts, New Delhi, resolved the dispute pertaining to Section 138 of Negotiable Instruments Act, 1881 in light of the 4 conditions laid down under the said Section.

Read more…

Dwarka Courts, Delhi on noting a very weak case of the complainant and not being able to produce sufficient evidence, dismissed his complaint filed for the dishonour of cheque under Section 138 of Negotiable Instruments Act, 1881.

Read more…

In light of the cheque being returned by the bank due to “Account Closed” Bhola Pandit, XX Addl. C.M.M, convicted an accused under Section 138 of the Negotiable Instruments Act, 1881

Read more…

Court of XX Addl. Chief Metropolitan Magistrate, Bengaluru City: convicted a person who presented a cheque to repay a loan but the same was dishonoured due to insufficient funds.

Read more…

Divorce

Family Court, Pune addressed a petition for divorce by mutual consent under Section 28 of the Special Marriage Act, 1954 and granted the same noting the difference of opinion and incompatibility of petitioner’s temperament.

Read more…

Family Court, Pune granted a decree of divorce by mutual consent to a couple who due to difference of opinion and incompatibility of their temperament could not live together.

Read more…

Family Court, Ahmednagar allowed a petition granting a decree of divorce by mutual consent to the petitioners.

Read more…

Medical Negligence

Patiala House Courts while addressing a case of medical negligence expressed that d,octors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment.

Read more…

Domestic Violence & Maintenance

Saket Courts, New Delhi, dismissed an appeal filed by the husband against the order of the trial court granting maintenance to the wife.

Read more…

Although the domestic violence is incident which happens within four walls of the house. No independent evidence can be expected.

Read more…

LXIII Addl. City Civil & Sessions Judge, Bengaluru, dismissed an appeal filed under Section 29 of the Domestic Violence Act finding that the petitioner wife had proved the factum of domestic violence.

Read more…

Coparcener

Tis Hazari Courts, Delhi, discussed the legal position on a coparcener’s daughter also being a coparcener of the Hindu Undivided Property.

Read more…

Drink and Drive

“There has to be a zero-tolerance for drunken driving and such cases should be dealt with stern hands for flashing proper message in the society.”

 Read more…

Theft of Electricity

Karkardooma Courts, Delhi, decided a matter wherein a person was found guilty of direct theft of electricity.

Read more…

Termination of Services

Saket Courts, New Delhi, decided a matter wherein an employee claimed full back wages from the date he was terminated till the date of his superannuation.

Read more…

Condonation of Delay

“A litigant who takes liberty with court procedure should anticipate the necessary consequences.”

“…a stern message is required to be sent to the litigants who indulge in frivolous and vexatious litigation as such litigation not only clogs arteries of justice delivery system but also deprives genuine litigants of their fundamental right of speedy trial.”

Read more…

Failure to file Charge Sheet

District Court Complex, Rouse Avenue, allowed applications filed under Section 167(2) CrPC and granted bail to the accused persons for failure of the Central Bureau of Investigation to file charge sheet within the permissible period of 60 days.

Read more…

New releasesNews

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Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., remarked that,

Insurance for lawyers has been an aspiration for several years.

In the present matter, while lauding the object of the Chief Minister’s Advocates Welfare Scheme, for advocates enrolled with the Bar Council of Delhi, the following two issues were raised:

  • The first, is in respect of a condition in the Scheme that the benefit of the same will only be available to such advocates whose names appear in the voter’s list of Delhi. A large number of advocates who are enrolled with the BCD and practising in various District Courts, the High Court, the Supreme Court and other fora, have been excluded due to this condition, as they are not residents of Delhi but reside outside Delhi, predominantly in the NCR region in areas such as Noida, Gurugram, Faridabad, Ghaziabad etc.
  • The second issue concerns those lawyers who were unable to register for the Scheme within the original deadline and are thus seeking an extension of the deadline for registration.

Broad summarization of the reliefs sought:

  1. Issuance of insurance policies to all eligible advocates already registered under the Scheme;
  2. Quashing of the condition requiring advocates to have a voter ID card of Delhi for obtaining the insurance policies under the Scheme. In effect, therefore, what is sought is the extension of the Scheme to lawyers residing outside Delhi, in the NCR region/neighbouring areas, so long as they are registered with the Bar Council of Delhi.
  3. Reopening of the registration portal to enable advocates who have been unable to register as yet, to put in their registrations.

Point wise analysis of the decision

  • Whether advocates registered with the BCD who reside in the NCR region/neighboring areas are entitled to benefits under the Scheme?

Place of Practice v. Place or Resident? 

Bench observed that on a conjoint reading of the provisions of the Advocates Act, 1961, the Bar Council of Delhi Rules, 1963 and the BCIPP Rules shows that insofar as advocates are concerned, primacy is given to the place of practice and not to the place of residence of the advocate.

Legal practice in Delhi and the NCR region/neighbouring areas

A substantial number of advocates who primarily practice in Delhi live in the NCR region/neighbouring areas, including in areas such as Noida, Gurugram, Sonepat, Rohtak, Faridabad, Ghaziabad, some areas of Punjab etc. Such advocates are registered with the BCD and are also members of the Bar associations of the court complexes where they practice.

The said advocates also contribute to the revenue stream of the Delhi Government by practicing in Delhi.

Therefore,

The advocates’ place of residence has no bearing on this whatsoever. Moreover, the place of residence of the advocate is also not set in stone. Depending upon the income levels of the advocate, the advocate may move to Delhi. It is a matter of common knowledge that not all advocates can afford housing in Delhi and may, therefore, choose to reside in the NCR region/neighbouring areas. However, the character of their practice, being essentially in Delhi, would not change.

Whether the scheme can be restricted to advocates who have voter ID cards of Delhi?

GNCTD had submitted that if the Government wishes to restrict the benefits of the Scheme to a sub-classification of advocates registered with the BCD as also residing in Delhi, the Court cannot interfere in the said policy decisions.

Whether Court can interfere in the policy decision of the Government?

High Court expressed that almost all decisions of governments taken as executive decisions would involve policy matters. Such decisions, as per the settled law would be amenable to judicial review, if it is seen that the same is either discriminatory or arbitrary.

There cannot be a hard and fast rule that in a welfare scheme, Courts cannot interfere, even if they are violative of the rights of a section of the citizens.

 Whether the sub-classification of advocates registered with the BCD would be permissible in law?

The scheme was introduced with the objective of welfare of the advocates. Object was to recognize the positive role played by advocates in society.

Chief Minister of Delhi had announced the Scheme with an outlay of Rs 50 crores to be utilized for the welfare of the legal community.

In Supreme Court decision of State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, test for determining whether a classification is valid or not was laid down.

Crux of Classification Test

There is no rational nexus between the grouping and the object, and the same is found to be arbitrary, the classification was unreasonable and liable to be struck down.

Further, it was added that submission on behalf of the GNCTD that the conditions to be imposed in the Scheme being one of governmental policy, the Court ought not to interfere in the same, would not be correct if the conditions are found to be discriminatory or arbitrary.

Bench elaborating more, stated that the GNCTD cannot impose the condition of residence in Delhi to advocates and not to its own employees.

The scheme of the Advocates Act, 1961 as also the various Bar Council Rules and Regulations give primacy to the place of practice and not residence.

Governmental policies are amenable to judicial review and if the allegation is one of discrimination the same would have to be examined on the touchstone of Article14. The Scheme carves out a distinction within advocates registered with the BCD, between those advocates who are residents of Delhi and those who are not. The Scheme is extended to the former and not to the latter. The said classification does not have a rational nexus with the object of the Scheme.

Hence, the Court held that the said condition and the resultant classification was discriminatory and arbitrary.

Bench lauded the Scheme floated by GNCTD for recognizing the need of advocates who belong to the various strata of society for having insurance for themselves and their families.

During the pendency of the petitions, a number of advocates enrolled with BCD with voter ID Cards of Delhi had already availed the Scheme and thus, the Scheme is already having a practical impact on the lives of advocates practicing in Delhi, especially during the pandemic.

  • Whether registration ought to be reopened to enable advocates who missed the initial deadline to obtain benefit under the Scheme?

With respect to reopening of registration for new advocates, a proper scheme would have to be evolved as the same would not be possible for the current year.

Upon extension of the Scheme to advocates from the NCR region/neighbouring areas, newly enrolled advocates and advocates who may register afresh for the Scheme having been enrolled post the deadline of 2019, the number of advocates who may become eligible may increase considerably.

High Court added that from the data filed by the BCD, it is clear that the BCD has funds to contribute to the Scheme, though the same may not be fully sufficient to fund the entire Scheme. The Advocates Welfare Fund Act, 2001 having been enacted for the purpose of welfare of Advocates, this Court is of the opinion that to the extent possible, the said Fund ought to be utilised to support the Scheme for insurance.

BCD either by itself or by receiving contribution from the advocates themselves ought to willingly share the burden.

Conclusion and Directions

a. The Chief Minister’s Advocates Welfare Scheme announced by the GNCTD is a Scheme that has a laudable objective of recognising the role of lawyers in protecting the rights of citizens and their constructive role in society. It is also in recognition of the role played by advocates and their contribution to the legal profession. The Scheme has, with this objective already enabled insurances for thousands of advocates in Delhi and has provided relief and succour to them especially during the pandemic. However, the condition in the Scheme that it would be applicable only to residents in Delhi with Voter IDs, is held to be discriminatory and arbitrary as the sub-classification from amongst the advocates enrolled with the Bar Council of Delhi, has no rational nexus with the object to be achieved. Accordingly, the Scheme shall be extended to all advocates registered with the Bar Council of Delhi, whose names and credentials are verified, without the insistence of Voter ID showing residence in Delhi;

b. For the current year’s policies, all advocates who had registered themselves and are eligible for the benefits under the Scheme shall be extended the benefits. The GNCTD has already spent approximately Rs.40 crores to enable advocates to avail of the insurance policies. Out of the total number of advocates for whom policies have already procured, there are 5,044 advocates from the NCR region/neighbouring areas within the verified list of advocates for whom premium has already been paid. They shall enjoy the benefits of the Scheme. All such further eligible advocates, who had registered within the deadlines prescribed, as per this judgement, who have been left out shall now be included and the policies/coverage, on the same terms, for the remainder period of the current year, shall be procured from the LIC and NIACL by 31st July 2021. Only the pro-rata premium would be liable to be paid by the GNCTD to the insurance companies, which the insurance companies had agreed to, during the course of hearing.

c. Insofar as the future years are concerned, since the pool of advocates has been increased, the total premium for life and Mediclaim insurance, may be more than the budget outlay of Rs.50 crores. The GNCTD cannot be made to solely bear the burden of providing the insurance premium, though it is urged that the outlay may be increased depending upon the requirements, taking inflationary trends etc., into consideration. The BCD which has been unable to provide for group insurance for advocates, ought to complement the efforts of the GNCTD which has clearly taken the position that the issue is not being treated in an adversarial manner. Thus, the deficit on a year-to- year basis, beyond the budgeted amount of the GNCTD, shall be funded by the BCD.

  1. For the said purpose, the BCD may source the funds in the following manner. It is –
  • Free to utilize its own funds, including the funds collected under the Advocates’ Welfare Act, 2001.
  • Free to seek any voluntary contribution from Senior advocates and other financially well-off advocates, who may be willing to contribute for the betterment of the legal community.
  • The BCD may, if the need so arises, collect some part of the premium from the advocates who are beneficiaries of the Scheme.

Lastly, the Court added that the Law Secretary of the GNCTD and the Chairman Bar Council of Delhi shall be responsible for working out the modalities of the Scheme.

The GNCTD, after consulting the BCD, would be free to decide on the nature of the Scheme to be availed of from the insurance companies, either on an annual basis or on a periodic basis such as three years or five years, so that the annual premia can be duly scaled down. The new scheme in terms of the present judgment shall accordingly be announced by 30th September, 2021, after consultation with the BCD and insurance companies. [Govind Swaroop Chaturvedi v. State of NCT of Delhi, 2021 SCC OnLine Del 3676, decided on 12-07-2021]


Advocates before the Court:

For the Petitioner: G.S. Chaturvedi, Petitioner in person.

For the Respondents: Mr. Rahul Mehra, Sr. Advocate and Mr. Satyakam, ASC for GNCTD.

Mr. Sanjay Rawat, Advocate for NIACL with Mr. Gaurav Sharma, Branch Manager.

Mr. Ramesh Gupta, Chairman, BCD. Mr. Rakesh Khanna and Mr. K.C. Mittal, Sr. Advocates with Mr. Rajiv Khosla, Advocate for BCD.

Mr. Kamal Mehta, Advocate for LIC.

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., expressed that:

“…advocates are not above law and, in fact, it is the advocates who have to give more respect to the law, as it is their bread and butter.”

“Court should not be a mute spectator to the legal gimmicks…”

Factual Matrix

Respondent Police had registered a case wherein 2nd petitioner was stopped by police officials on duty while she was proceeding in her car. Her car was stopped as the lockdown was imposed and on query she responded that she had come out for the purpose of purchasing medicines, however, respondent 2 informed that she had stated that she came out for purchasing fish.

It was also stated that she had no valid pass for going out during the lockdown period.

In light of the above incident, a challan of Rs 500 was issued

Crux of the matter

The whole melee started on the issuance of challan, after which 2nd petitioner started quarrelling with police officials.

Overall scene that has led to the present matter was that, petitioner 1 claimed and proclaimed that she was an advocate, used filthy, abusive and unparliamentary language, used derogatory words and castigated the police officials on duty and in fact threatened them that they will be stripped off their uniforms, if they tried to intervene and cause any hindrance to the movement of the petitioners.

Police officials were smeared all over with mud by 1st petitioner. Hence, for total violation of lockdown guidelines and non-adherence to the provisions of the Disaster Management Act and violation of the provisions of the Penal Code, petitioners were slapped with by filing of the above complaint and further leading to registration of case.

In Court’s earlier order, Bar Council of Tamil Nadu was directed to file a status report as to the mechanism that was in place for taking action against those unruly advocates, who cast a slur by their act, demeaning the whole legal profession without bothering about the impact of their acts on the disciplined and law-abiding members of the legal fraternity.

As per the status report, a mechanism was envisaged under Section 35 of the Advocates Act for proceeding against a member of the Bar for unprofessional conduct or other misconduct. However, the said provision spoke only about the complaint received on which action is initiated by the Bar Council.

Though, from the status report it was not clear as to the suo motu powers of the Bar Council in dealing with such instances, where the unprofessional act comes to the knowledge of the Bar Council, though not on the basis of a complaint, in which case, the matters such as the present one goes unnoticed, though it was in the public domain and reached the ears and eyes of the public through the visual media.

Sine the status report was silent, it led to the inference that generally no action was taken against such persons, if there was no complaint before the Bar Council.

It is also not clear whether the Bar Council has deliberated on this aspect of initiation of suo motu action against such unruly members of the Bar, who damage and stature and sanctity of the institution and also the members associated with the said institution.

Police personnel | Frontline Workers

It is to be pointed out that the police personnel has been one of the frontline workers in trying to curb the spread of the deadly virus by maintaining the lockdown guidelines imposed by the Government from time to time since March, 2020 and it is further to be pointed out that the pandemic is not yet over and caution has been given about the on-coming of the 3rd and 4th wave, which are predicted to have a still more detrimental impact on the human race.

Police personnels have not only been working overtime but also working with least concern for their family and themselves and have been dedicating their lives to the cause of humanity. In such a scenario, the least expected of the general public and also the intellectual group of legal professionals that they should be given the minimum basic respect and courtesy while handing them.

Advocates Stature

Advocate because of his avocation and his social-minded acts, rise up the pedestal and in fact that was the reason law gave them the stature to question even the police. But that stature should be used in a legal and lawful manner without maligning the reputation and position of any individual person or any official of the Government.

Further, it was elaborated that,

Usage of the position of advocate for other than just causes is nothing but an act of corrupt nature, which requires to be cut down by the sword held in the hands of the statue of Justice.

The doyens of the Bar, more especially the Madras Bar, have held aloft the rule of law for centuries together and Madras Bar is always looked upon with awe and admiration.

 A very significant observation made by the Court was that, nowadays, a few members, just to enrich themselves and for their selfish cause, throw to the winds the larger interest of the legal fraternity and cause irreparable damage to the other members of the legal profession by their acts, as has been done in the present case. 

Bench noted that 1st petitioner indulged in the above-stated act in Infront of her daughter 2nd petitioner who was said to be a 4th-year student. In such a backdrop, it is more expected of the 1st petitioner to teach the 2nd petitioner the ethics for following the rule of law, as otherwise, her act as in the present case, would engrave upon the mind of the 2nd petitioner, which would not be a welcome sign to the legal profession.

High Court expressed that if it allowed such mindset to go unnoticed, it would be a great injustice that this Court would be doing to the legal profession and also to the genuine, dignified and respectful legal professionals, who respect this profession and the robes they wear and would also be sending a wrong signal to send 2nd petitioner who is slowly climbing up the ladder to enter the legal profession.

In view of the above discussion, Court did not grant anticipatory bail to the 1st petitioner.

With regard to 2nd petitioner, Court stated that mere quarrelling with the police officials cannot be said to be a wrongful act, which would attract the penal provisions pressed into service by the respondents against 2nd petitioner and any view taken to the contra would be negating the rights guaranteed to the citizens under the Constitution.

Law Enforcement Agency and their role

The law enforcing agency is manned by persons, who have experience in dealing with criminals and not each and every individual, who commits a mistake should be branded as a criminal by bringing the individual within the four corners of the penal code.

Unnecessary infliction of charges of this nature on every individual would only make the individual look into the loopholes of the system and try to wriggle out of the same after committing mistakes, which should be avoided at all costs.

Hence, Bench stated that respondents shall ponder dropping of all the charges made against 2nd petitioner as there was no substance in the said charges.

Bar Councils’ Mechanism to deal with erring Advocates

Law has given the legal professional privilege and status, but the said privilege is to be used sparingly and only for upholding the majesty of law and following the rule of law. It is not given for the purpose of maligning the rule of law and demeaning the other members of the Bar to the benefit of the individual.

Any infraction by this Court in not safeguarding the interest of the legal profession would be a doom for the entire judiciary and the legal fraternity as a whole.

 Bar Council in its report submitted that it takes action only when it receives any complaint against any erring advocate.  However, what this Court was more bothered about was the fact that not all unprofessional conduct or other misconducts lead to a complaint being written by the Bar Council.

Any unprofessional conduct of a member of the legal profession, coming to the knowledge of the Bar Council through the visual media for which no complaint emanates from any quarter, can the Bar Council allow that instance to go unnoticed for the mere reason that the Advocates Act does not envisage suo motu action?

Court feels that it is high time the Bar Council enforces Section 35 of the Advocates Act, which gives it power and authority to initiate action suo motu on the incidents, which comes to its knowledge through the digital/print media, for which there is no complaint given by any individual.

In view of the above discussions, 2nd petitioner deserves anticipatory bail while dismissing the petitioner insofar as 1st petitioner.

Another issue that the Court dealt was a WhatsApp audio which was circulated by one R. Krishnamurthi, a member of the Bar who circulated the audio on social networking platforms attributing mala fides to the Bench.

advocate has further stated that I should recuse from hearing the case any further and has also attributed dishonesty and also stated that I am taking a lopsided view in favour of the law enforcing agency. Though I have called only for certain particulars, the advocate has gone on to make allegations that I have taken a biased view and I am leaning towards the law enforcing agency and has even casted aspersions against me openly in the social networking domain

Adding to the above, Bench also noted that the advocate imputed allegations against the Judiciary in falling to take any action against the law enforcing agency for very many irregularities committed by them during the pandemic situation, which are not in consonance with law.

The act of the advocate is very much contumacious and attracts initiation of criminal contempt proceedings. The whole audio paints a very gloomy picture and without any material aspersions are attributed against the Bench.

It was noted that the said Krishnamoorthy was a total stranger to the proceedings, yet he had made derogatory statements in the social media against the judicial functions of the Bench, including seeking Judge’s recusal, which was nothing but interference with the administration of justice.

Hence, High Court held that the act of aforesaid advocate attracted Section 2(c) of the Contempt of Courts Act.

This Court would not fall prey to such acts perpetrated by gossip mongers and unscrupulous elements, with a view to scuttle the judicial process and make the judiciary dance to their tunes.

Bench directed Registry to issue notice regarding initiation of Suo Motu Criminal Contempt proceedings against the said R. Krishnamoorthy as provided for under Section 14 of the Contempt of Courts Act and, thereafter, place the matter before the Hon’ble Chief Justice for being listed before the appropriate Bench for hearing. [Tanuja Rajan v. State, 2021 SCC OnLine Mad 2242, decided on 18-06-2021]


Advocates before the Court:

For Petitioners: Ms. A.Louisal Ramesh

For Respondent : Mr. A.Gopinath, GA (Crl. Side) for R-1 Mr. Haja Mohideen Gisthi for R-2


Madras HC | Is there any mechanism to take action against members of legal fraternity for their misbehaviour with officials on duty? Bar council of Tamil Nadu to respond

 

Hot Off The PressNews

Bar Council of India has notified that AIBE XVI onwards — No books, notes or study material will be allowed in the examination hall. Candidates can only carry Bare Acts without notes.

The said notification can be accessed on the following website: https://allindiabarexamination.com

 

———————————————————————————————————–

IMPORTANT DATES FOR AIBE-XVI

-26th Dec 2020 – Online Registrations Begins.

-21st Feb, 2021 – Last date for Online Registrations

-06th March, 2021* – Release of Admit Card Online.

-21st March,2021* – All India Bar Examination-XVI in various cities across India.


All India Bar Examination

Conference/Seminars/LecturesLaw School News

Institute of Law, Nirma University is organising International Symposium in association with South Asia Network for Justice Education (SANJE) on 8th and 9th February 2021.

Law education largely focuses on legal market trends and providing services in which community needs of justice is often undermined in the legal education process. Looking at the present scenario of access to justice resources in India, the need is felt to create a cadre of lawyers who act as justice professionals. This requires thorough grounding and grooming of young promising law students during the course of their law education. We attempt to build a team of law clinicians and multidisciplinary professors along with justice educationists who help law students to develop diverse perspectives on the justice needs of the community. This requires organised efforts through a network of justice educators who can deliberate design, develop and deploy innovative strategies and transformative pedagogies. In this regard, the problem is not just the absence of justice education, but more fundamentally it is the absence of important information, including techniques, examples, support, and even guidance, that could encourage attempts to bring about justice education. Bringing about justice education requires a massive change from traditional ways of teaching.

The Symposium focuses on empowering all like-minded law teachers, legal aid professionals, and paralegal, teachers from other allied disciplines, and build the community of clinicians who design and engage budding justice professionals through innovative pedagogy for a just and sustainable society.

Schedule:

Date – 8 February 2021

Time- 7: 30 PM – 9:00 PM

Theme: Educating future lawyers for a just & sustainable society, Promoting social justice through performing arts

Moderator: Prof. (Dr.) Varsha Ganguly, Professor, Institute of Law, Nirma University, Ahmedabad.

Resource Persons:

  • Prof. (Dr.) Srikrishna Deva Rao, Vice-Chancellor, National Law University, Delhi.

  • Prof. (Dr.) Lisa Radtke Bliss, Associate Dean, Experiential Education and Clinical Programs, Georgia State University, Georgia.

  • Prof. (Dr.) Catherine F. Klein, Director, Columbus Community Legal Services Catholic University, Washington DC.

  • Prof. (Dr.) Sarasu Esther Thomas, Registrar, and Professor of Law, National Law School of India University, Bengaluru.

Date: 9 February 2021

Time: 7: 30 PM – 9:00 PM

Theme: Clinical legal education – Best practice standards and interdisciplinary model, Education 4.0 justice initiatives, Quality assessment tools,

Moderator: Prof. (Dr.) Purvi Pokhariyal, Dean & Director, Institute of Law, Nirma University, Ahmedabad.

Resource Persons

  • Prof. (Dr.) Susan L. Brooks, Associate Dean, Experiential Learning & Clinical Professor, School of Law, Drexel University.

  • Prof. (Dr.) Asha Bajpai, Former Professor and Visiting Faculty at the Tata Institute of Social Sciences, and Institute of Law, Nirma University.

  • Prof. (Dr.) M R K Prasad, Professor of Law, V.M. Salgaocar College of Law, University of Panaji, Goa.

  • Prof. Abhayraj Naik, Advisor, Consultant and Researcher based in Bengaluru; Visiting Faculty at Azim Premji University, Bengaluru.

Who can register: Academicians, Research scholars, LL.M. students, any PG student studying Law, Education, Arts, Fine Arts, Management, Social Sciences and Humanities, Social Work, and any relevant faculty.

Registration Link: HERE 

For any queries contact email id: arpit.sharma@nirmauni.ac.in

Hot Off The PressNews

Bar Council of India decided to hold the next All India Bar Exam on 21-03-2021.

AIBE-XV is to be held on the scheduled date i.e. 24-01-2021 and there will be no change of date of All India Bar Exam-XV anymore.

For AIBE-XVI, the Online registration will start from 26-12-2020 and the last date for registration will be 21-02-2021. The last date for payment of exam fee would be 23-02-2021 and 26-02-2021 will be the final date for completion of online forms. Admit Cards shall be released online 06-03-2021 and the exam will be held on 21-03-2021.

In this way, Bar Council of India is going to hold two All India Bar Exams within a period of two months (i.e. All India Bar Exam-XV on 24-01-2021 and All India Bar Exam– XVI on 21-03-2021).


Bar Council of India

[Press Release dt. 21-12-2020]


Also Read:

Bar Council of India releases new schedule for All India Bar Examination–XV [Check New Dates]

New releasesNews

Contents

Articles

DESIGNED FOR ABUSE: SPECIAL CRIMINAL LAWS AND RIGHTS OF THE ACCUSED…………………………………………………………………………………………. 1

—Kunal Ambasta

UNIFORMITY IN DIVERSITY?: REFLECTING ON THE ESSENTIAL PRACTICES DOCTRINE AND ITS IMPLICATIONS FOR LEGAL PLURALISM      ………………………………………………………………………………………………………..17

—Kalindi Kokal

WHOSE FOREST IS IT AFTER ALL?……………………………………………………. 29

—Ujal Kumar Mookherjee and Manjeri Subin Sunder Raj

PROTECTION OF HARMED INVESTORS: THE MISSING LINK IN THE DISGORGEMENT ORDERS OF THE SEBI……………………48

—S.N. Ghosh

OPERATIONAL CREDITORS IN INSOLVENCY: A TALE OF DISENFRANCHISEMENT…………………………………………………………..68

—Sudip Mahapatra, Pooja Singhania and Misha Chandna

Essays

RIGHTS ISSUES – UNTYING THE KNOTS……………………………………………… 82

—Sayantan Dutta

ETHICAL HACKERS UNDER THE INFORMATION TECHNOLOGY ACT: THE CYBER TERRORISM CONUNDRUM AND ‘PROTECTED’ SYSTEMS…………………………………………………………………………………………………………………………………………..93

––Vivek Krishnani

Book Review

PRIVACY 3.0: UNLOCKING OUR DATA-DRIVEN FUTURE BY RAHUL MATTHAN…………………………………………………………….103

—Amlan Mishra

New releasesNews

Contents

Articles

India’s Electoral Legal System: Need for Structural Reform

Krishan Mahajan………………………………………………………………… 1

Elections and Election Commission of India: A Contemporary Evaluation

Afroz Alam ………………………………………………………………………..  9

Significance of the Ballot System in the Indirect Elections in India: with Special Reference of Rajya Sabha

Uday Shankar & Ashok Vardhan Adipudi …………………………………..  19

Validating Democracy through Proportional Electoral System

Ayaz Ahmad …………………………………………………………………….  38

An Integrated Approach to Resolve the Crisis of Defection in India

Chirag Balyan ………………………………………………………………….  50

First Past the Post System and its Limitations: A Case for Proportional Representation in India

Parth Sharma …………………………………………………………………..  82

Evaluating Criminal Disenfranchisement in India

Abhijit Anand & Tapan Vahal ………………………………………………..  96

Violations of Model Code of Conduct and Accountability of Election Commission of India

Neelesh Shukla & Hartej Singh Kochher ………………………………….  113

Electrising the Scourge Over Electoral Corrupt Practices

Shivani Puri & Prateek Kumar ……………………………………………..  128

E-Bonds: Code Anonymous in Indian Elections

Vrinda Bhardwaj & Kumar Mangalam ……………………………………  144

Breaking the Shackles: Recognising Election Manifestos as Legitimate Expectations

Omkar Upadhyay ……………………………………………………………..  156

Case Comments

Contextualizing Religious Politics and Elections in India: Judicial Discourse in Abhiram Singh v. C.D. Commachen

Yogesh Pratap Singh & Siddharth Panda …………………………………  173

A Missed Chance to De-Criminalise Indian Politics: A Comment on Manoj Narula v. Union of India

Nikita Pattajoshi & Swayamsiddha Mishra ……………………………….  184

Book Reviews

Navin Chawla, “Every Vote Counts: The Story of India’s Elections”

Rajat Solanki & Nidhi Chauhan …………………………………………….  195

Alok Shukla, “Ambush: Tales of the Ballot”

Deban Satyadarshi Nanda …………………………………………………..  204

Hot Off The PressNews

Bar Council of India releases new schedule for AIBE — XV

ACTIVITY

IMPORTANT DATES

Online Registration had began from 16-05-2020
Bank Payment through challan started from 16-05-2020
Online registration extended till 03-12-2020
Last date for payment 10-12-2020
Last date for completion of online form 15-12-2020
Online release of admit cards 05-01-2021
Date of Examination 24-01-2021

Bar Council of India