Transmission of Contractual Tenancy – Law and Rulings
Law Commission 181st Report suggested amendment to the Section 106 of Transfer of property Act,1882. While Submitting Report in May,2002 Law Commission observed that, “ The recommendations have been made with a view to remove serious injustice and prevent multiplicity of litigation in the country. We hope that the recommendations in this Report will go a long way in attaining the objectives set out above. We are also recommending that the proposed amendments be applied to pending proceedings.” “Ever since 1882, certain words in sec. 106 of the Transfer of Property Act, 1882, have given rise to a lot of litigation. An amendment of sec. 106 is long overdue. The purpose of the present Report is to eliminate this litigation in so far as it relates to computation of period of notice and to relax some of the rigid principles laid down in some judgments which have led to serious injustice and multiplicity of litigation. In fact, in the State of UP, by virtue of a State Amendment under the UP Act 24 of 1954, this section was amended long back. A similar amendment in the Principal Act has to be made so as to remove the hardship caused to litigants in the rest of the country.” Amended Section 106 in The Transfer of Property Act, 1882 reads as under: 106. Duration of certain leases in absence of written contract or local usage.— (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property Question arose when Plaint who filed RAD Suit for protection of tenancy rights dies what are rights and status of his legal heirs under the law? Do they have inheritance of tenancy ? Judgments Prior to Amendment : Validity of Notice United Dairies Ltd. v. Public Trustees. ((1923) 1 KB 469) on the remarks of Greer, […]
Read moreDiscretionary Powers of Governor for appointment in Legislative Council is absolute or subject to advice of Council of Ministers
Discretionary Powers of Governor for appointment in Legislative Council is absolute or subject to advice of Council of Ministers Recently a question was asked with identical facts happening in a State where Council of Minister passed Resolution for nominating a member in Legislative Council, whether the same is binding upon Governor or he can refuse to accept? To study this question let us see provisions of the Constitution of India and various judgments on the issue. Let us see provisions of A.163 of Constitution of India. Article 163 in The Constitution of India 1949 163. Council of Ministers to aid and advise Governor (1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court According to Article 171(3)(e) of the Constitution the State Governor is to nominate one-sixth of the members of the Legislative Council. Article 171, clause (5) stipulates “The members to be nominated under sub-clause (e) of clause (3) shall consists of persons having special knowledge or practical experience In respect of such matters as the following; Literature, Science, Art, Co-operative Movement and Social service.” 171. Composition of the Legislative Councils (1) The total number of members in the Legislative Council of a State having such a Council shall not exceed one third of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty (2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause ( 3 ) (3) Of the total number of members of the Legislative council of a State (a) as nearly as may be, one third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university; (c) […]
Read morePRINCIPLES RELATING TO FORCE MAJEURE- CURRENT CRISIS OF COVID19
Laws involved: Contract Act,1872 and Transfer of Property Act,1882 Contract Act, 1872 S.32 ENFORCEMENT OF CONTRACTS CONTINGENT ON AN EVENT HAPPENING.—Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void. Section: 56 Agreement to do impossible act.—An agreement to do an act impossible in itself is void. Contract to do an act afterwards becoming impossible or unlawful.—A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful.—Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise. Section: 62 EFFECT OF NOVATION, RESCISSION, AND ALTERATION OF CONTRACT.—If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. Section:64 CONSEQUENCES OF RESCISSION OF A VOIDABLE CONTRACT.—When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is the promisor. The party rescinding a voidable contract shall, if he had received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received. Sale of Goods Act ,1930 S.57 DAMAGES FOR NON-DELIVERY.—Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may sue the seller for damages for non-delivery. 58. SPECIFIC PERFORMANCE.—Subject to the provisions of Chapter II of the Specific Relief Act, 1877 (1 of 1877), in any suit for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, on the application of the plaintiff, by its decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, or otherwise, as the Court may deem just, and the application of the plaintiff may be made at any time before the decree. 59. REMEDY FOR BREACH OF WARRANTY.— (1) Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may— (a) set up against the seller the breach of warranty in diminution or extinction of the price; or (b) sue the seller for damages for breach […]
Read moreCOVID19 AND FORCE MAJURE CLAUSE NOTIFIED CONCERNING INDIA
In wake of Wuhan Virus Government of India notified following Office Memorandum. No. F. 18/4/2020-PPD Government of India Ministry of Finance Department of Expenditure Procurement Policy Division Subject: Force Majeure Clause (FMC) Attention is invited to para 9.7.7 of the “Manual for Procurement of Goods, 2017” issued by this Department, which is reproduced as under: A Force Majeure (FM) means extraordinary events or circumstance beyond human control such as an event described as an act of God (like a natural calamity) or events such as a war, strike, riots, crimes (but not including negligence or wrong-doing, predictable/ seasonal rain and any other events specifically excluded in the clause). An FM clause in the contract frees both parties from contractual liability or obligation when prevented by such events from fulfilling their obligations under the contract. An FM clause does not excuse a party’s non-performance entirely, but only suspends it for the duration of the FM. The firm has to give notice of FM as soon as it occurs and it cannot be claimed ex-post facto. There may be a FM situation affecting the purchase organisation only. In such a situation, the purchase organisation is to communicate with the supplier along similar lines as above for further necessary action. If the performance in whole or in part or any obligation under this contract is prevented or delayed by any reason of FM for a period exceeding 90 (Ninety) days, either patty may at its option terminate the contract without any financial repercussion on either side. A doubt has arisen if the disruption of the supply chains due to spread of corona virus in China or any other country will be covered in the Force Majeure Clause (FMC). In this regard it is clarified that it should be considered as a case of natural calamity and FMC may be invoked, wherever considered appropriate, following the due procedure as above. (Kotluru Narayan eddy) Deputy Secretary to the Govt. of India ANALYSIS OF CLAUSE IN THE ABOVE MEMORANDUM AND COMMENTARY: Above Memorandum came in wake of Lockdown of country due to COVID19. Which is known as Chinese Virus. Above Notification is unique in nature includes natural calamity and war , but not include negligence or wrong doing. Law- Contract Act,1872 Agreement to do impossible act.—An agreement to do an act impossible in itself is void. Contract to do an act afterwards becoming impossible or unlawful.—A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful.—Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise. WHAT IS FORCE MAJURE FORCE MAJURE During the pendency of the contract/ purchase order if the performance in whole/ part by […]
Read moreEnforcement of International Award under Section 48 of Arbitration Act,1996
Section 48 of the Arbitration Act, 1966 reads as follows: 48.Conditions for enforcement of foreign awards.— (1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that— (a) the parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. (2) Enforcement of an arbitral award may also be refused if the Court finds that— (a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or (b) the enforcement of the award would be contrary to the public policy of India. Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,— (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] (3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause(e) of sub-section (1) the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. One of the first judgments which construed pari materia provisions in the Foreign […]
Read moreIndian Preamble to Constitution can be amended?
It is a very valid question that arise in mind in today’s scenario. When a State Government orders recitation or Preamble that it is incumbent Duty and responsibility of the Government to teach the correct status and history of our PREAMBLE. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that “the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted. “Once the transfer of power had taken place the question of British Parliament’s subsequent approval which was visualised in the British Cabinet Commission’s original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble “give to ourselves this Constitution” became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure “this twenty-sixth day of November 1949” were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. “If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble.” (see Tbibhuban Parkash Nayyar v. The Union of India) [1970] 2 S.C.R. 732- 737.As Sir Alladi Krishnaswami, a most eminent lawyer said, “so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has’ to be attached to the Preamble in a Constitutional statute”. (Constituent Assembly Debates Vol. 10, p.417). Our Preamble outlines the objectives of the whole Constitution. It expresses “what we had thought or dreamt for so long. The original 1947 Preamble of Indian Constitution is as under WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; in Behram Khurshed Pasikaka v.The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J.observed: We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of […]
Read moreINDIA DOES NOT HAVE REFUGEE ACT, WHY? HOW DOES INDIA CONTROL ILLEGAL MIGRANTS?
To understand this question, we need to go back to history. Post-World War II World War II started in 1939 and lasted till 1945. It saw genocide, concentration camps and slave labour. Aftermath of this war was very serious. Japan was the biggest sufferer. During this period there was need felt to have an institution to manage relationship as intergovernmental organization responsible for maintaining international peace and security, developing friendly relations among nations, achieving international cooperation, and being a center for harmonizing the actions of nations. It is the largest, most familiar, most internationally represented and most powerful intergovernmental organization in the world. The UN was established after World War II with the aim of preventing future wars, succeeding the ineffective League of Nations. The name “United Nations”, coined by President Franklin D. Roosevelt od United States of America. It was first used in the Declaration by United Nations of 1st January 1942, during the Second World War, when representatives of 26 nations pledged their Governments to continue fighting together against the Axis Powers. Delegates of 50 countries met in San Francisco on 24th October,1945 at the United Nations Conference on International Organization to draw up the United Nations Charter. Those delegates mull over on the basis of proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and the United States at Dumbarton Oaks, United States in August-October 1944. The Charter was signed on 26 June 1945 by the representatives of each of the 50 countries. Poland signed it later and became one of the original 51 Member States. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories. United Nations Day is celebrated on 24 October each year. Now you will say why I am discussing UN here. We are discussing UN because in 1951 a Convention was signed under Article 14 of Universal Declaration of Human Rights,1948. The 1951 Convention, was a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January 1951 and within Europe. The Convention came into force on 22 April 1954 Thereafter one amendment was adopted in 1967 Protocol which removed the geographical and temporal limits of 1951 convention. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage. It has since been supplemented by refugee and subsidiary protection regimes in several regions, as well as via the progressive development of international Human Rights Law. India is not Signatory to the Original 1951 Convention nor of 1967 Protocol and hence India has no Refugee Act. NOW HOW DOES INDIA CONTROL ILLEGAL MIGRANTS? For that India has The Foreigners Act,1946. Section 2(a) of the said Act say the Foreigner means a person who is not a Citizen of India. It empowers Government to make orders and law with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 1[India] or their […]
Read moreCAN BANK INITIATE RECOVERY AGAINST GUARANTOR WITHOUT NOTICE OF DISHONOUR?
In a Writ Petition before Bombay High Court, Petitioner challenged the Trial Court order passed under Section 101 of the Maharashtra Co-operative Societies Act, 1960 which was rejected by both the Trial Courts even in Appeal on the ground inter-alia that no due notice of dishonor of Bill of Exchange was given by the Petitioner Bank. Petitioner resisted stating that inter-alia No reasoned award is passed for rejecting the recovery certificate. And No notice of dishonor was given. Neither the original dishonoured bill of exchange was produced before the Trial Court. The guarantor challenged the maintainability of the above Petition on the legal grounds and on the basis of precedents and stare-decisis laid down by the common law under the Negotiable Instruments Act 1881 and the principles of banking system The Petitioner relied upon Section 64 of NI Act. There is no liability of the parties because the Promissory Note and Bill of Exchange must be presented by the Bank for payment to the making / acceptor / drawee by and on behalf of the holder and in default of such presentment, the other parties thereto are not liable thereon. The Bill of Exchange produced before the Trial Court is payable after site after expiry of 90 days and therefore, the notice of dishonor is mandatory under the law. Let us now study provisions of Section 64 Negotiable Act,1881 (NIAct) Presentment for payment. – [(1)] Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder. [Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.] Exception. Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof. [(2) Notwithstanding anything contained in section 6, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information regarding the truncated cheque from the bank holding the truncated cheque in case of any reasonable suspicion about the genuineness of the apparent tenor of instrument, and if the suspicion is that of any fraud, forgery, tampering or destruction of the instrument, it is entitled to further demand the presentment of the truncated cheque itself for verification: Provided that the truncated cheque so demanded by the drawee bank shall be retained by it, if the payment is made accordingly.] Neither Borrower nor Guarantor was not aware of presentment, or dishonor of the Bill of Exchange. What Law say on such circumstances? Case Law In the matter of Bhagwati Natwarlal vs. Jagjivan Mavji 1954 AIR ( SC) 554 it was held that liability of bill arises only after acceptance. In para 5 of the Judgment Supreme Court held that, it is acceptance that establishes privity on the instrument between payee and the drawee. Under Section 91 of NI Act 91. Dishonour by non-acceptance.—A […]
Read moreWhether execution of Arbitration Award is automatically stayed by filing Section 34 Petition?
Recently in Hindustan Construction Company & Anr vs Union of Supreme Court section 87 was struck down. Judgment analysis in Nutshell: In the above matter Petitioners challenged the constitutional validity of Section 87 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Arbitration Act, 1996”) as inserted by Section 13 of the Arbitration and Conciliation (Amendment) Act, 2019 (hereinafter referred to as the “2019 Amendment Act”) and brought into force with effect from 30th August,2019. Petitioners also challenged the repeal (with effect from 23rd October,2015) of Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter referred to as the “2015 Amendment Act”) by Section 15 of the 2019 Amendment Act. Apart from the aforesaid challenge, a challenge is also made to various provisions of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the “Insolvency Code”) which, as stated by the Petitioners, result in discriminatory treatment being meted out to them. Here we shall discuss the Judgment touching the Section 87 inserted by 2019 Amendment Act in Arbitration Act,1996. To be very specific whether upon filing Section 34 Petition challenging Award, the execution of Award is automatically stayed without security? Let us understand the law and arguments before the Supreme Court. Facts: The Arbitration Act, 1996 is based upon the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985) (“UNCITRAL Model Law”), Article 36(2) of which specifically refers to applications for setting aside or suspension of an award, in which the other party may provide appropriate security. Contrary to Article 36 of the UNCITRAL Model Law, Section 36 of the Arbitration Act, 1996 has been construed by judgments of apex Court as granting an ‘automatic-stay’ the moment a Section 34 application is filed within time. From the plain language of Section 36, automatic-stay does not follow, and the judgments of Supreme Court which have so held would require a revisit by this larger bench. In any case, the 246th Report of the Law Commission of India titled, ‘Amendments to the Arbitration and Conciliation Act, 1996’ (August, 2014) (hereinafter referred to as the “246th Law Commission Report”) recommended that Section 36 be amended, which was in fact done by the 2015 Amendment Act, so that automatic-stays are now things of the past. However, despite the fact that the 2015 Amendment Act made large-scale changes to the Arbitration Act, 1996, keeping in view the objects of the Arbitration Act, 1996 of minimum judicial intervention, speedy determination and recovery of amounts contained in arbitral awards, yet, another ‘High-Level Committee to Review the Institutionalization of Arbitration Mechanism in India’ headed by Retd. Justice B.N. Srikrishna by its report dated 30th July,2017 (hereinafter referred to as the “Srikrishna Committee Report”) opined that the 2015 Amendment Act should not apply to pending court proceedings which have commenced after 23rd October,2015 (i.e. the date of the 2015 Amendment Act coming into force), but should only apply in case arbitral proceedings have themselves been commenced post 23rd October, 2015, which would include court proceedings relating thereto. The Government of […]
Read moreAlliance and Laws in India
Democracy is defined as government Of the People, By the People For the People. But it is also said that Democracy is Mob o-cracy. Today’s political scenario in India proves first say wrong and confirms the second version. Article 324 of Indian Constitution provides for formation, appointment in office and functions of Election Commission. It is vested with conducting Election of Assembly, Parliament and Municipality, Panchayat etc. There is also provision for disqualification on ground of defection in Tenth Schedule of the Constitution. It was inserted in 1985. Schedule Ten refers to the defection by Members of Parliament and Assembly. Such disqualification does not apply if there is merger of two political parties with two third Members of legislature agrees to such merger. Courts have no Jurisdiction to try disqualification matters under Tenth Schedule. There is no law governing party manifestos too. There are no prosecution provisions for breach of promises given in manifesto or for not complying with promises given to the voters before election. There are no Statute governing : Pre-poll alliance or Post-Poll alliance or Cancellation or termination of Pre-Poll alliance before election Termination or Breach of Pre-Poll alliance after election is over. Post -Poll alliances Casting Vote is Constitutional Duty but, breach of alliance is not. Voters are non-est entity without any power or rights are bound to accept the decision of parties entering post poll alliance for formation of government, to keep largest party out of power. Citizens have no right in such cases to stop or challenge. Result is fall of government and re-election. Members of Assembly and Parliament are elected to govern common citizens who are voters, however it has reduced nothing but to grab power. When there is deviation from pre – poll alliance, can it be said that there is fraud played on Voters is alliance is terminated after election for power play? Sometimes Voters cast votes on basis of manifesto and leaders who are seeking votes or who is going to lead as Prime Minister or Chief Minister. However due to breach or termination of the alliance, scenario changes. Due to falling short of majority mark Largest Party sits as opposition party and small fractions come together to form government by creating post-poll alliance or in breach of pre-poll alliance. This leads to several instances of horse trading, and,locking elected MLAs and MPs in hotel to stop defection from party. This is though in violation of fundamental rights and wrongful confinement, it is never challenged in court of law, nor any FIR filed for such confinement by elected representatives against their party high commands. Why Post Poll coalition should not be encouraged There is breach of trust of Voters who casted Vote for a purpose. This defeats the purpose and also compromises constitutional federal structure; In coalition government strong party even though it has less seat can control weak party leaders, which will affect policy decisions; Defense, foreign policy Judiciary etc decisions are affected or prejudiced; Finance, health and education policy conflicts When a party seeks votes on the basis of pre-poll alliance and then subsequently after results for any reason […]
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