WHAT HAPPENS WHEN MAKER OF THE WILL DIRECTS TO PAY THE EXECUTOR FROM A PARTICULAR FUND? CAN COURT ISSUE A PROBATE?
To understand the case query we must first learn the provisions of the Indian Succession Act of 1925 IS AN EXECUTOR A TRUSTEE? “There is a distinction between a trustee and an executor, in that the former has only the power to pay what is vested in him as trustee to the persons for whose use he holds it, but has no general power to receive and pay what is due to and from the estate, which is the office of the latter (vide paragraph 13, p. 12 of Williams). The same proposition appears in Halsbury’s Laws of England (3rd Edn., Vol. 16, p. 124, in paragraph 180)” Provisions of Indian Succession Act 1925 Sec 222: Probate only to appoint an executor. (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. Illustrations (i) A wills that C be his executor if B will not. B is appointed executor by implication. (ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds “but should the within-named C be not living I do constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication. (iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words,– “I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates”. The nephew is appointed an executor by implication. Grant of administration of universal or residuary legatees.— When—(a)the deceased has made a Will, but has not appointed an executor, or (b)the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or (c)the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted proving the Will and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered. Narration: Thus, the test for finding out whether a person is an executor according to the tenor is to find out whether he is, by necessary implication, nominated by the testator in his stead to generally administer the estate and to pay the testator’s debts and to receive his dues in the performance of his will. An executor is placed in the stead of the testator and he has the right of action against the testator’s debtors and has also the right to dispose of the goods of the testator towards the payment of his debts and the performance of his will. An executor need not be expressly nominated; and if by necessary implication the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be […]
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CAN WE TRANSFER A FLAT IN A HOUSING SOCIETY WITHOUT OBTAINING A PROBATE? IF YES HOW?
A person generates wealth for his survival, comfort and luxury. He earns wealth for growth of his family and children. When becomes old same children start talking of inheritance of his wealth while he is living. There are various provisions of law to bequeath property : a. after death of a person, which is WILL or Vasiyat. When you make a WILL your inheritance is governed by Indian Succession Act 1925. This is very common practice and people always make WILL during their lifetime. This WILL or Vasiyat operates or say becomes live after death of make of WILL. This is where entire drawback or lacuna lies. Court even permits registered WILL in a way rewrites last wish of the deceased. Is it correct to do that? Once challenge to the WILL is permitted the Probate application is converted into Suit. Which takes decades to come up for hearing. Resultant the parties to avoid litigation and waste of time settle the claim in most of the matters. The question arises is whether this was the last wish of the deceased? Answer is No. But it happens. b. Next is inheritance governed by personal law. i. For Hindus its Hindu Succession Act 1956. There are two school of thoughts Dayabhaga which is prevalent in West Bengal where son gets inheritance in fathers property only on death of the father. While in rest of India Mitakshara School of Law is followed. In this a child in the womb gets coparcenary rights in the family property. c. Hindu WILL requires to be probated. ii. Islamic Law 1. The Holy Quran 2. The Sunna – that is, the practice of the Prophet 3. The Ijma – that is, the consensus of the learned men of the community on what should be the decision on a particular point 4. The Qiya – that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God. Muslim law recognizes two types of heirs, Sharers and Residuary. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuary would take up the share in the property that is left over after the sharers have taken their part. A will executed by a Muslim testator is not subject to the compulsory probate requirements under law. This would be a subject matter of Mohammedan personal law (which differs in its application among Shias and Sunnis). However they do file for probate for transfer of plot of land and other properties in Mumbai. d. In case of a Parsi section 213 (2) of the Indian Succession Act 1925 states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the WILL in question is made or the property bequeathed under the WILL is situated within the “ordinary original civil jurisdiction” of the Bombay high court. e. For WILL made by a Christian probate is not mandatory under Indian Succession Act 1956. COMMENTS: To obtain probate it takes long-time. Now a days 3-4 years even if not contested. So, […]
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SUPREME COURT VERDICT ON ELECTION BOND WILL ONCE AGAIN PROMOTE BLACK MONEY?
The Supreme Court on Thursday ( 15 February 2024 ) delivered its highly-anticipated judgment in the electoral bonds case, holding that anonymous electoral bonds are in violation of the right to information under Article 19(1)(a) of the Constitution. Accordingly, the scheme has been struck down as unconstitutional. Case details: Association for Democratic Reforms & Anr. v. Union of India & Ors. | Writ Petition (Civil) No. 880 of 2017 Electoral Bond was a mode of funding to the political parties in India. The scheme of Anonymous Electoral Bond was introduced in The Finance Bill, 2017 during the Union Budget 2017-18. It was struck down as unconstitutional by the Supreme Court on 15 February 2024. The election funding system, which was in place for seven years, was stopped with immediate effect by a five-judge bench headed by Chief Justice D. Y. Chandrachud, who directed the State Bank of India to stop issuing these bonds and called the scheme “violative of RTI (Right to Information). To understand why electoral bonds were introduced, we must go back to the era before 2014. There were terrorist attacks in which civilians were killed, Kashmir was ruled by separatists, and stone pelting and attacks on the army were common, there is news that says that RBI’s old printing machines were sold to Pakistan and there was a huge amount of black money and counterfeit notes was widely in circulation and it was used to destabilize Kashmir and our country. https://www.pgurus.com/de-la-rue-currency-scam-how-pc-and-a-few-officials-compromised-national-security/ There is no rebuttal to this news. The NPA of Banks was about 250 lakh crores. Loans were disbursed on the phone. The entire country was gripped in negativity and there was no hope left. In 2014, the country decided to change the mandate and chose the NDA government. After coming into power, they started working on serious and critical issues. They came into power, with the promise to wipe out black money from the economy. Consequences of Demonetization: On 8 November 2016, the Government of India announced the demonetization of all ₹500 and ₹1,000 banknotes of the Mahatma Gandhi Series. Prime Minister Narendra Modi claimed that the action would curtail the shadow economy, increase cashless transactions, and reduce the use of illicit and counterfeit cash to fund illegal activity and terrorism. According to a 2018 report from the Reserve Bank of India ₹15.3 lakh crore (15.3 trillion rupees on the short scale) of the ₹15.41 lakh crore in demonetized bank notes, or approximately 99.3%, were deposited in banks, leading analysts to state that the effort had failed to remove black money from the economy. The BSE SENSEX and NIFTY 50 stock indices fell over 6% on the day after the announcement. The move reduced the country’s industrial production and its GDP growth rate. It is estimated that 1.5 million jobs were lost. The move also saw a significant increase in digital and cashless transactions throughout the country. (courtesy Wikipedia). Common citizens cooperated for the better future of this country. Introduction of Electoral Bond Scheme: On 2nd of January 2018 Electoral Bond Scheme was notified. What was the intention, listen to what then Finance Minister […]
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LEAKING A VIDEO OF AN OFFICER COUNTING BALLOT PAPERS DURING THE VOTING PROCESS OF CHANDIGARH MUNICIPALITY TO SOCIAL MEDIA IS IN BREACH OF DATA PRIVACY?
Data privacy is a law and it’s in force. It came into force on 11th August 2023. Recently an election process was held for electing a Mayor in Chandigarh Municipality. The issue started with Presiding Officer Anil Mansinh looking at surveillance camera and mainly ruling Aam Adami Party lost Mayoral post. Hence an issue is raised that returning officer defaced the ballot papers. The AAP approached the Supreme Court and upon seeing the video a judgment is drawn that returning officer Anil Mansinh tempered the ballot paper. There are two issues: The video presented in court is available on social media platform and all are interpreting the way they want. This is breach of #dataprivacy. How we will discuss here. Can court become judgmental by declaring returning officer guilty without scrutinizing the records? Is court pre-decisive and judgmental in this case? DISCUSSION AND ANALYSIS: [A] The video presented in court is available on social media platform and all are interpreting the way they want. This is breach of #dataprivacy. While answering point No.i let us go back to recent history of constitution bench judgment in which current CJI was a part of it. Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017), also known as the Right to Privacy verdict, is a landmark decision of the Supreme Court of India, held that, the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. A nine-judge bench of J. S. Khehar, J. Chelameswar, S. A. Bobde, R. K. Agrawal, R. F. Nariman, A. M. Sapre, D. Y. Chandrachud, S. K. Kaul, and S. A. Nazeer unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” It explicitly overruled previous judgements of the Supreme Court in Kharak Singh vs. State of UP and M.P. Sharma vs. Union of India, which held that there is no fundamental right to privacy under the Indian Constitution. This judgment settled this position of law and clarified that the Right to Privacy could be infringed upon only when there was a compelling state interest in doing so. This position was the same as with the other fundamental rights . Supreme Court ruled that Right to Privacy is “intrinsic to life and personal liberty” and is inherently protected under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. DATA PROTECTION: Central Government passed an Act to provide for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes and for matters connected therewith or incidental thereto. The definition of the term data under this Act is as under : (h) “data” means a representation of information, facts, concepts, opinions or instructions in a manner suitable for communication, interpretation or processing by human beings or by […]
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WHEN A CRIMINAL MATTER IS TRANSFERRED TO ANOTHER STATE HIGH COURT THEN WHETHER COURT OF ORIGIN LOSES POWER AND JURISDICTION TO TRY AND ENTERTAIN REMISSION APPLICATION ?
BILKIS BANU JUDGEMENT AN ANALYSIS Yesterday two Judges bench passed an order setting aside remission given by the Gujarat High Court on the recommendation of the Gujarat Government under Section 432 (7) (b) of the Code of Civil Procedure 1973 in the matter of Bilkis Banu vs Union of India. But there is different view of 5 Judges Constitution Bench in Murugan Vs Union of India . This law needs more clarification. Brief History : These writ petitions was filed assailing the Orders dated 10.08.2022, granting remission and early release of respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which petition shall be considered to be the lead petition), who were all convicted, having been found guilty of committing heinous crimes during the large-scale riots in Gujarat on 28.02.2002 and a few days thereafter which occurred in the aftermath of the burning of the train incident in Godhra in the State of Gujarat on 27.02.2002. The crime in question was driven by communal hatred and resulted in twelve convicts, amongst many Writ Petition (Crl.) No.491 of 2022 Etc. others, brutally gang-raping the petitioner in Writ Petition (Crl.) No.491 of 2022, namely, Bilkis Yakub Rasool, who was pregnant at that time. Further, the petitioner’s mother was gang raped and murdered, her cousin who had just delivered a baby was also gang raped and murdered. Eight minors including the petitioner’s cousin’s two-day-old infant were also murdered. The petitioner’s three-year-old daughter was murdered by smashing her head on a rock, her two minor brothers, two minor sisters, her phupha, phupi,mama (uncle, aunt and uncle respectively) and three-cousins were all murdered. Cause of Action Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes filed the writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order, or direction quashing the Orders dated 10.08.2022 passed by the State of Gujarat by which the convicts in Sessions Case No.634 of 2004, Mumbai (respondent Nos.3 to 13 herein), whose convictions were upheld by a Division Bench of the Bombay High Court and thereafter by Supreme Court. On 28.06.2022, the Department of Home Affairs, Government of Gujarat, addressed a letter to the Secretary, Ministry of Home Affairs, Government of India, seeking sanction from the Government of India on the proposal for the premature release of the prisoners, respondent Nos.3 to 13. By letter dated 11.07.2022, the Ministry of Home Affairs, The government of India conveyed its approval under Section 435 of the CrPC for the premature release of all 11 convicts, respondent Nos.3 to 13. Pursuant to the concurrence of the Central Government, the State of Gujarat issued the impugned orders dated 10.08.2022. In the above background, writ petitions were filed, praying, inter-alia, for issuance of a writ, order, or direction, quashing the Orders dated 10.08.2022 LEGAL ISSUE INVOLVED It was asserted inter-alia that though the crime was committed in the State of Gujarat, the investigation and trial were carried out in the State of Maharashtra under the orders of this Court. Hence, given the language of Section 432(7)(b), only the state of Maharashtra would be the appropriate […]
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TOWERS, TRANSFERABLE DEVELOPMENT RIGHTS AND UNCERTAINTY
TOWER BUILDINGS IN MUMBAI BLISS OR BANE Mumbai was a peaceful place, with sophisticated and cool roads. Tall towers are now new skylines in Mumbai. Jam-packed traffic, roads on ventilators, metro, and coastal roads adorn the site of Mumbai city. Redevelopment of the old building is a booming business now. They are given TDR and additional FSI. But what if this tower falls or collapses? What if the SRA building collapsed and became unsafe? Is there any provision? How such towers will be constructed? What are the rights of flatholders and member’s? Will Insurance save the flat holders’ future? Before answering so many questions let us see the inter-alia relevant provisions of newly framed Development Control Rules for Greater Mumbai. Provisions relating to underdevelopment Control and Promotion Regulation 2034 [ DCPR 2034]. 33(6) Reconstruction of buildings destroyed by fire, or which have collapsed, or which have been demolished under lawful order Reconstruction of buildings that existed on or after 10th June 1977 and have ceased to exist for reasons cited above, shall be allowed to be reconstructed with FSI as per the Regulation No 30(C). Provided that if the area covered under a staircase/lift has not been claimed free of FSI as per the then prevailing Regulation as per the occupation plan, the area covered under staircases/lifts shall be considered while arriving at protected BUA in such cases the premium for entire staircase lift area in the proposed building as per these Regulations shall be recovered. This FSI will be subject to the following conditions: Reconstruction of the new building on the plot should conform to provisions of DP and these Regulations. Reconstruction will be subject to an agreement executed by at least 70 percent of the landlords and occupants each in the original building, within the meaning of the Mumbai Rents, Hotel and Lodging House Rates Control Act, 1947, and such the agreement shall make a provision for accommodation and re-accommodate the said landlord/all occupants in the new building on agreed terms and a certificate from a practicing advocate having a minimum of 10 years’ experience, is submitted confirming that on the date of application, reconstruction, agreements are executed by at least 70% of the landlords and occupants each in the original building with the developer/owner. The Advocate shall also certify that the agreements with occupants are valid and subsisting on the date of application. The Carpet area of residential/non-residential premises may be altered with the consent of occupants. Reconstruction shall be disallowed on set-back areas or areas required for road-widening and such areas shall be handed over to the Corporation. These provisions shall not apply to buildings wholly occupied by warehouses and godowns. If the building is reconstructed with existing FSI/BUA prior to its collapse/demolition, then the requirements of front & marginal open spaces shall be as per the Regulation No.41(5) of these Regulations. Provisions of R.No.41(5) is as under: Provisions in open spaces for plots in Reconstruction/Redevelopment Schemes under the Maharashtra Housing and Area Development Authority Act, 1976, Slum Rehabilitation Authority and Redevelopment Scheme of municipal tenanted properties; in case of DCR 3(5),33(6),33(7),33(7)(A),33(7)(B),33(9),33(9)(A),33(9)(B),33(10), 33(10)(A),33(11),33(15)and 33(20)(A): The following […]
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MEDIATION ACT 2023- PATH TOWARDS PEACE
MEDIATION ACT 2023- PATH TOWARDS PEACE PART- I- MEDIATION Chapter –I What is Mediation? History Mediation is not a new concept for Indians and on the contrary, the same is imbibed in our culture from its inception. It has roots in our culture since ancient times of Buddha, Chanakya, Yagnavlkya and Mahabharat. Duryodhan was adamant and said he would not give an inch from Hastinapur but also demanded Indraprastha, (Today’s NCR) area. Krishna was the first mediator on earth who tried to convince Duryodhan to give up his claim on Indraprastha and keep Hastinapur. But he refused and the consequence was War. In ancient days, any dispute or differences amongst parties were resolved by Mukhiyas, Sarpanch or Panchayats. The same was at the Gram Panchayat Level, whose words and orders were final. People had full respect and faith and had never endeavoured to oppose the same. Indian tradition is marked by joint Hindu Families, where the words sentiments, and, emotions, of all the members of the family are respected and all the disputes and differences of opinion are settled by the Karta of the Family or the eldest person in the Family, so that the family remains united. This was in general the social structure of India and Courts were unknown to our culture. Even today Khap Panchayat makes decisions, and it is final and binding. ( See Sec 3(b) ) By invasion and ruling of Britishers, this system was hampered to some extent and people tended to move to Courts by referring disputes to the Courts for redressal of their disputes in terms of Judgment and Decree, during the British Regime. After partition and enforcement of the Constitution of India, disputes in Courts started piling up and resulted in considerable delays in delivering justice and resolving the dispute. Torts in India even today are not much enforced, however, there are Consumer Forums whose judgment can be executed as a Decree of Civil Court. It is a natural phenomenon that every human being when he is lost in a way goes back to his own origin and again with the same concept, but with improved methods Indian society is now prepared to go back to resolve the dispute by way of mediation in the new name and style of Alternative Dispute Resolution. Unlike Arbitration, mediation is non-judgmental and non-binding. THE PARLIAMENT HAS NOW PASSED THE MEDIATION ACT 2023 Let us see and jump to the current scenario from the days of Mahabharat. APPLICATION: The Act applies to the mediation when it is conducted in India, and — all or both parties habitually reside in case of a company or LL.P or a Firm is incorporated in or has their place of business in India, there is a mediation agreement which provides that any dispute shall be resolved in accordance with the provisions of this Act; or there is an international mediation; or wherein one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations, and local bodies, including entities controlled or owned by such Government and where the matter pertains to […]
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SAME SEX MARRIAGE AND ARDH NARISHWAR – WHETHER IT IS PARALLEL OR THERE IS RESEMBLANCE?
What is Ardh -Narishwar? Is it alike a gay or eunuch? Let us see what is Ardh- Narishwar ‘शंकर: पुरुषा: सर्वे स्त्रिय: सर्वा महेश्वरी।’ (शिवपुराण) अर्थात्–समस्त पुरुष भगवान सदाशिव के अंश और समस्त स्त्रियां भगवती शिवा की अंशभूता हैं, उन्हीं भगवान अर्धनारीश्वर से यह सम्पूर्ण चराचर जगत् व्याप्त है। शक्ति के बिना शिव ‘शव’ हैं शिव और शक्ति एक–दूसरे से उसी प्रकार अभिन्न हैं, जिस प्रकार सूर्य और उसका प्रकाश, अग्नि और उसका ताप तथा दूध और उसकी सफेदी। शिव में ‘इ’कार ही शक्ति है। ‘शिव’ से ‘इ’कार निकल जाने पर ‘शव’ ही रह जाता है। शास्त्रों के अनुसार बिना शक्ति की सहायता के शिव का साक्षात्कार नहीं होता। अत: आदिकाल से ही शिव–शक्ति की संयुक्त उपासना होती रही है। भगवान शिव के अर्धनारीश्वररूप का आध्यात्मिक रहस्य भगवान शिव का अर्धनारीश्वररूप जगत्पिता और जगन्माता के सम्बन्ध को दर्शाता है। सत्–चित् और आनन्द–ईश्वर के तीन रूप हैं। इनमें सत्स्वरूप उनका मातृस्वरूप है, चित्स्वरूप उनका पितृस्वरूप है और उनके आनन्दस्वरूप के दर्शन अर्धनारीश्वररूप में ही होते हैं, जब शिव और शक्ति दोनों मिलकर पूर्णतया एक हो जाते हैं। सृष्टि के समय परम पुरुष अपने ही वामांग से प्रकृति को निकालकर उसमें समस्त सृष्टि की उत्पत्ति करते हैं। शिव गृहस्थों के ईश्वर और विवाहित दम्पत्तियों के उपास्य देव हैं क्योंकि अर्धनारीश्वर शिव स्त्री और पुरुष की पूर्ण एकता की अभिव्यक्ति हैं। संसार की सारी विषमताओं से घिरे रहने पर भी अपने मन को शान्त व स्थिर बनाये रखना ही योग है। भगवान शिव अपने पारिवारिक सम्बन्धों से हमें इसी योग की शिक्षा देते हैं। अपनी धर्मपत्नी के साथ पूर्ण एकात्मकता अनुभव कर, उसकी आत्मा में आत्मा मिलाकर ही मनुष्य आनन्दरूप शिव को प्राप्त कर सकता है। क्यों हुआ अर्धनारीश्वर अवतार? भगवान शिव का अर्धनारीश्वरस्वरूप ब्रह्माजी की कामनाओं को पूर्ण करने वाला है। पुराणों के अनुसार लोकपितामह ब्रह्माजी ने सनक–सनन्दन आदि मानसपुत्रों का इस इच्छा से सृजन किया कि वे सृष्टि को आगे बढ़ायें परन्तु उनकी प्रजा की वृद्धि में कोई रुचि नहीं थी। अत: ब्रह्माजी भगवान सदाशिव और उनकी परमाशक्ति का चिंतन करते हुए तप करने लगे। इस तप से प्रसन्न होकर भगवान सदाशिव अर्धनारीश्वर रूप में ब्रह्माजी के पास आए और प्रसन्न होकर अपने वामभाग से अपनी शक्ति रुद्राणी को प्रकट किया। वे ही भवानी, जगदम्बा व जगज्जननी हैं। ब्रह्माजी ने भगवती रुद्राणी की स्तुति करते हुए कहा– ’हे देवि! आपके पहले नारी कुल का प्रादुर्भाव नहीं हुआ था, इसलिए आप ही सृष्टि की प्रथम नारीरूप, मातृरूप और शक्तिरूप हैं। आप अपने एक अंश से इस चराचर जगत् की वृद्धि हेतु मेरे पुत्र दक्ष की कन्या बन जायें।’ ब्रह्माजी की प्रार्थना पर देवी रुद्राणी ने अपनी भौंहों के मध्य भाग से अपने ही समान एक दिव्य नारी–शक्ति उत्पन्न की, जो भगवान शिव की आज्ञा से दक्ष प्रजापति की पुत्री ‘सती’ के नाम से जानी गयीं। देवी रुद्राणी पुन: महादेवजी के शरीर में प्रविष्ट हो गयीं। अत: भगवान सदाशिव के अर्धनारीश्वररूप की उपासना में ही मनुष्य का कल्याण निहित है। अर्धनारीनटेश्वर स्तोत्र (हिन्दी अनुवाद सहित)!!!!!!!! English Translation: That is, all men are part of Lord Sadashiv and all women are part of Lord Shiva, this entire living world is pervaded by the same Lord Ardhanarishwar. Without Shakti, Shiva is a ‘dead body’ Shiva […]
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RIGHTS OF RESERVATIONS AS PER POPULATION WHETHER CONSTITUTIONAL PROPOSITION?
During the last 40 years in India, politics has been divided into regional and mainstream parties. The mainstream party was the only one dominated by a family. Under its shelter, every state advanced state-level family powerhouse. They are still inter-alia in Uttar Pradesh, Bihar, Rajasthan, Jammu and Kashmir, West Bengal, and Telangana. However, the said respective families would oppose state elections and partner in the central government. This continued for decades. Slowly people realised that there is a change in voting tendency. Well, let’s migrate to the topic under discussion to the current situation as the country will go for Lok Sabha elections in 2024. The small local regional parties referred to in para hereinabove along with the mainstream party formed an alliance. They named it as INDI Alliance. This INDI Alliance has introduced a new idea to fetch more votes. They have proposed that rights on the national resources will be as per the population of a caste. A caste having a larger population should get more facilities. During the tenure of UPA erstwhile Prime Minister said that it is in particular Muslims who has first right to the resources of this country. Please see the link https://youtube.com/shorts/UAdiboSk-vk?si=P1bjy7UvohWHj-CE PARTITION India has seen division in 1947. A bloody partition based on religion. Millions. Many shed lives and were martyred and many children lost while crossing the border. Nehru became the first PM of independent Bharat. INDIA WAS BORN We have a constitution in force. Our constitution gives equal opportunity to all. Let us see what it provides: Article 13. Laws inconsistent with or in derogation of the fundamental rights. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void Article 14. guarantees Equality before the law. —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition with regard to— a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. [(4) Nothing in this article or in clause (2) of […]
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PITH AND SUBSTANCE- BASIC STRUCTURE OF CONSTITUTION WHY A DEBATABLE ISSUE ?
Judicial activism is most debated among the students of law and laymen. What is judicial activism? Judicial activism is exercising the power of judicial review to set aside government acts by the judiciary. Last decade we saw most of the orders passed to administer various policies of the government by the Supreme Court. From abortion of 24-week fetuses to supply of oxygen and medicine, gay rights, gay marriages, Aadhaar- PAN linking, repeal of Article 370, Ram Temple, Rafael allegation. During the coronavirus pandemic court orders were passed distribution of remdesivir, vaccine, oxygen. In Uttar Pradesh, photos of the burial of bodies at Ganga Ghat were used to create sensation and Hon’ble Court dismissed such frivolous litigation. PITH AND SUBSTANCE Origin: It is a legal doctrine originated in Canada. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government. (as applicable in Canada) The doctrine was first articulated in Cushing v. Dupuy, where the Judicial Committee of the Privy Council held that certain rules of civil court procedure could be prescribed under the federal bankruptcy power. It was subsequently confirmed in Tennant v. The Union Bank of Canada, where rules governing warehouse receipts with respect to bank loans could be prescribed under the federal banking power. *The full test was articulated in General Motors v. City National Leasing by Dickson CJ, where he summarized and outlined the analysis to be used in that regard in future cases: The court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent. It must establish whether the act (or a severable part of it) in which the impugned provision is found is valid. In cases under the second branch of s. 91(2) this will normally involve finding the presence of a regulatory scheme and then ascertaining whether the hallmarks articulated by the Court have been met by the scheme. If the scheme is not valid, that is the end of the inquiry. If the regulatory scheme is declared valid, the court must then determine whether the impugned provision is sufficiently integrated with the scheme that it can be upheld by virtue of that relationship. This requires considering the seriousness of the encroachment on provincial powers, in order to decide on the proper standard for such a relationship. If the provision passes this integration test, it is intra- vires Parliament as an exercise of the general trade and commerce power. If the provision is not sufficiently integrated into the scheme of regulation, it cannot be sustained under the second branch of s. 91(2). *(source Wikipedia) INDIA AND THE BASIC STRUCTURE OF THE CONSTITUTION Kesavananda Bharati v. State of Kerala Case, is also known as the Fundamental Rights case. It is one of the most significant decisions in Indian constitutional history, post-independence. It was heard by 13 judges’ bench of the Supreme Court. S.M. Sikri C. J., Hegde J, Mukherjee J, Shehlat J, Grover J, Jaganmohan Reddy J, and Khanna J delivered […]
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