JUDICIAL ACTIVISM AFFECTING ORIGINAL SCOPE OF DUTIES? An analysis based on Article 138 of the Constitution :
My Quote: We must consider a person whose money and land is blocked in litigation dies everyday. Article 138. Enlargement of the jurisdiction of the Supreme Court (1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer (2) The Supreme Court shall have such further jurisdiction, and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court Poetic Justice: English drama critic Thomas Rymer coined the phrase in The Tragedies of the Last Age Consider’d (1678) to describe how a work should inspire proper moral behavior in its audience by illustrating the triumph of good over evil. The demand for poetic justice is consistent in Classical authorities and shows up in Horace, Plutarch, and Quintillian, so Rymer’s phrasing is a reflection of a commonplace. Philip Sidney, in The Defence of Poesy (1595) argued that poetic justice was, in fact, the reason that fiction should be allowed in a civilized nation. But Indian Civilization believes in Karma which was much much prior to theory of poetic justice: And here they say that a person consists of desires, and as is his desire, so is his will; and as is his will, so is his deed; and whatever deed he does, that he will reap. : Brihadaranyaka Upanishad, 7th century BCE Judicial Activism: During #pandemic #Covid19India Judiciary played active role. As such over last 15 years there is more judicial activism. When we change or expand horizon we need more efficiency, professionalism, workforce, intellect, reduction in procedure and process, and also with today’s time we need modern technology. We have in last decade seen Judiciary calling #AirChiefMarshal for questioning on #Rafaeldeal We saw courts ordering change in 1000 years custom and usage in case of #shabarimala At the same time #NJAC was struck down. There is Judicial activism seen by way of PILs and suo motu cognizance. However the fundament duty of Judiciary has seen serious backlog. May it be suit, appeal or execution. We cannot value the total amount stuck in financial recovery cases, and land cases pending in various courts across India. Common citizens discuss but do not debate because of scare of law. I am referring these sequences of events because recently Bombay High Court said if people die of lack of oxygen it’s violative of Article 21. What does it provide? Article 21 in The Constitution of India 1949 gives Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. Backlog of Cases violate of Constitutional Rights? there is report which requires serious considerations even by those who are executing duties under oath. https://prsindia.org/policy/vital-stats/pendency-cases-judiciary which says: In 2016, compared to 2006, number of cases disposed of increased approximately from 57,000 to 76,000 in Supreme Court; from 14.4 lakh cases to 16 lakh cases in High Courts and from […]
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What will be fate of West Bengal Chief Minister after Six months? Can a candidate who has lost election be a Chief Minister after period of six months? What does constitution provide?
In normal circumstances we have seen Manmohan Singh did not contest a single general election, but he was appointed as Prime Minister and he was elected in Upper House of Parliament within six months to continue in office. Similarly in Maharashtra Uddhav Thackeray Chief Minister Maharashtra did not contest election but was nominated in Upper House of Assembly. These are cases where candidate had not contested election. But in case of West Bengal Mamata Banerjee who recently took Oath as Chief Minister, contested election and lost it. This makes case peculiar. Now for that we need to know the provisions of the Indian Constitution. Article 164 in The Constitution of India 1949 Other provisions as to Ministers (1) The chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State (3) Before a Minister enters upon his office, the Governor shall administer so him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule The Advocate General for the State Article 173 in The Constitution of India 1949 Qualification for membership of the State Legislature A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, not less than twenty five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament Article 191 in The Constitution of India 1949 Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First […]
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WHY CENTRAL GOVERNMENT RELUCTANT TO IMPOSE PRESIDENT RULE IN WEST BENGAL?
Let us see various provisions of the Indian Constitution. Article 352 in The Constitution of India Proclamation of Emergency (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation Explanation A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof Note: This power was exercised in the year 1977 Article 355 casts duty on the state to provide safety and security. Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. 44th Amendment: The Forty-fourth Constitutional Amendment substituted “armed rebellion” for “internal disturbance” in Article 352. “Internal disturbance” is, therefore, no longer a ground for taking action under that Article. Further, it cannot, by itself, be a ground for imposing President’s rule under Article 356(1), if it is not intertwined with a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution. What is Internal Disorder: ( Source Sarkaria Commission Report) 6.3.04 It is difficult to define precisely the concept of ‘internal disturbance’. Similar provisions, however, occur in the Constitutions of other countries. Article 16 of the Federal Constitution of Switzerland uses the expression “internal disorder”. The Constitutions of the United States of America and Australia use the expression ‘domestic violence’. The framers of the Indian Constitution have, in place of this term, used the expression ‘internal disturbance’. Obviously, they have done so as they intended to cover not only domestic violence, but something more. The scope of the term ‘internal disturbance’ is wider than ‘domestic violence’. It conveys the sense of ‘domestic chaos’, which takes the colour of a security threat from its associate expression, ‘external aggression’. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause. Such an internal disturbance is normally man-made. But it can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy. Instances: Gujarat.—(9-2-1974) The anti-price-rise agitation in Gujarat turned into a mass movement with demands for removal of the Ministry and dissolution of the Assembly. Army had to be called in at some places to deal with violence. […]
Read moreCAN THERE BE ORAL COPY RIGHT ASSIGNMENT? CAN COPY RIGHTS BE CLAIMED WITHOUT AGREEMENT?
Sections 18 and 19 of Copy Right Act 1957 is important for discussion. Let’s see provision of two relevant Sections. 18. Assignment of copyright.— (1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole of the copyright or any part thereof: Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. (2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly. (3) In this section, the expression “assignee” as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence. 19. Mode of assignment.—[ (1) ] No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent [(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment. (3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties. (4) Where the assignee does not exercise the right assigned to him under any of the other sub-sections of this section within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment. (5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. (6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India. (7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.]] There is landmark judgment on this issue passed by Karnataka High Court. Judicial Views: In K.A. Venugopala Setty vs Dr. Suryakantha U. Kamath, Karnataka High Court it framed question on oral agreement for Assignment and held that, “from the aforesaid provisions contained in S. 19 of the Act, it is clear that assignment of the copyright must be in writing and signed by the assignor or his duly authorised agent. In addition to this, the assignment must in clear terms state the rights proposed to be assigned and the size of the work. […]
Read moreCAN HOSPITAL DETAIN PATIENT FOR NON PAYMENT OF BILLS?
Hospitals often keep hostage a patient or detain dead body for non-payment of its bills. During covid19 pandemic one Mumbai Hospital bill of Rs.17 lakh was viral on social media. In Madhya Pradesh 60years patient was tied to bed by hospital authorities for non-payment of bill of small amount of Rs.10000/- approx.. Whether this is justified? What does our law say? Constitution of India under Article 21 guarantees its citizens right to personal liberty and prohibits any discrimination. It says, “Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.” So if bill is unpaid one cannot detain body nor can traumatize a person who is patient in such inhuman way. In Consumer Education & Research vs Union Of India & Others 1995 AIR 922 ,Supreme Court held that, “right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.” Right to Health: Its not fundamental right but Directive Principles of State Policy part IV Article 39 to 43 deals with this aspect. Article 39 (e ) says about health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; and (f) provides that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. While Article 47 directs State to act raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. This includes Panchayats, Municipalities to endeavor under Article 243G. In Bandhua Mukti Morcha vs Union of India 1984 AIR 802, 1984 SCR (2) 67 Supreme Court held that, Right to Health is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullen’s Case, to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. High […]
Read moreCAN THERE BE TWO PROBATES /LETTERS OF ADMINISTRATION IN INDIA?
An interesting question came up recently, can there be more than one probate ? One for Specific property and another for rest or general properties? It was a different question, and I was curious to know can this happen? So, started reading provisions and on research I got the answer. No, you will have to read entire blog. It was not easy for me too. So, let’s go… When there is a Will or application of Letters of Administration its governed by Indian Succession Act,1925. Otherwise property is devolved as per personal succession. Let’s see provisions of The Indian Succession Act,1925 Section 232 in The Indian Succession Act, 1925 232. 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 to prove 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. Section 254 in The Indian Succession Act, 1925 254. Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration.— (1) When a person has died intestate, or leaving a Will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be an administrator. (2) In every such case letters of administration may be limited or not as the Court thinks fit. Section 255 in The Indian Succession Act, 1925 255. Probate or administration, with Will annexed, subject to exception.—Whenever the nature of the case requires that an exception be made probate of a Will, or letters of administration with the Will annexed, shall be granted subject to such exception. Section 257 in The Indian Succession Act, 1925 257. Probate or administration of rest.—Whenever a grant with exception of probate, or of letters of administration with or without the Will annexed, has been made, the person entitled to probate or administration of the remainder of the deceased’s estate may take a grant of probate or letters of administration as the case may be, of the rest of the deceased’s estate. The answer to the question propounded in the order of reference must be found only in chapters 1 and 2 […]
Read moreDetails of 2 crore users put on sale on Dark Web : Law and consequences in India
There was a breaking news about details of 2 crore users by Big Basket put for sale on Dark Web. It was revealed by one cyber intelligence firm Cyble, that BigBasket has leaked sensitive data such as full names, email IDs, password hashes, contact numbers, addresses, and more on the dark web. Adding to the woes of BigBasket, a hacker has put the data on sale for around Rs 30 lakh. What is Dark Web? Oxford Dictionary defines Dark Web as under: the part of the World Wide Web that you can only get access to with special software, allowing users and website owners to remain secret, used especially for criminal activities Lexico Defines Term as: The part of the World Wide Web that is only accessible by means of special software, allowing users and website operators to remain anonymous or untraceable. Cambridge Dictionary says : parts of the internet that are encrypted (= use a secret code), that cannot be found using ordinary search engines, and that are sometimes used for criminal activity: The dark web can provide a haven for extremist groups to exchange ideas. For example: Sale of Drugs Sale of Data illegally Dark web was point of discussion in Sushant Case in India. Sale of illegal weapon Now let us see what law says regarding data breach in India Information and Technology Act,2000 provides as under: The said provision was inserted in 2009 [84A. Modes or methods for encryption.–The Central Government may, for secure use of the electronic medium and for promotion of e-governance and e-commerce, prescribe the modes or methods for encryption. 84B. Punishment for abetment of offences.–Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be punished with the punishment provided for the offence under this Act. Explanation.–An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. 84C. Punishment for attempt to commit offences.–Whoever attempts to commit an offence punishable by this Act or causes such an offence to be committed, and in such an attempt does any act towards the commission of the offence, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.] 85. Offences by companies.– (1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be […]
Read moreTHE FOURTH ESTATE : THE POLICE (INCITEMENT TO DISAFFECTION) ACT, 1922 PARALLEL INVESTIGATION AND THE VIEWS OF COURTS
The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. Though it is not formally recognized as a part of a political system, it wields significant indirect social influence. Article 19(1) (a) grants every citizen Freedom of Speech and Expression. We hear in News Channel debate that in Mumbai police is using British Era Act. That is The Police (Incitement to Dissatisfaction) Act,1922 ( the said 1922 Act) It was a news for any lawyer. Justice M.C.Chagla had said, there are so many laws in India , that we also come to know when it is argued by an Advocate before us. This was relating to Rationing Law. Under the circumstances its necessary to read and understand the views of the Courts after Independence. Its relevant for us to study and understand the law and its effectiveness. 1. Short title, extent and commencement.— (1) This Act may be called the Police (Incitement to Disaffection) Act, 1922. [(2) It extends to the whole of India, except [the territories which immediately before 1st November, 1956, were comprised in Part B States].] (3) It shall come into force in any State or part of a State on such date as the State Government may, by notification in the Official Gazette, direct. State amendments Andhra Pradesh.—In sub-section (2) of section 1, after the expression ‘except the territories which immediately before the 1st November, 1956 were comprised in Part B States’ add ‘other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956’. [Vide Andhra Pradesh Act 23 of 1958, sec. 3 and Sch. (1-2-1960)] Madhya Pradesh.—In section 1— (i) in sub-section (2), after ‘Part B States’, add ‘other than the Madhya Bharat and Sironja regions of the State of Madhya Pradesh’; (ii) for sub-section (3), substitute the following:— “(3) It shall be in force in all such areas in Madhya Pradesh in which it was in force immediately before the commencement of Madhya Pradesh Second Extension of Laws Act, 1961 (40 of 1961), and shall come into force in other areas, on such date as the State Government may, by notification, appoint”. [Vide Madhya Pradesh Act 40 of 1961 First Schedule, Part A, Item 5.] Maharashtra, Gujarat.—In its application to the State of Maharashtra in section 1.— (i) To sub-section (2), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall extend to the Saurashtra and Hyderabad areas of the State of Bombay”. (ii) To sub-section (3), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall come into force in that part of the Saurashtra area of the State of Bombay in which the Police (Incitement to Disaffection) Act, 1922, as modified and applied to that area by the State of Saurashtra (Application of Central and Bombay Acts) Ordinance, 1948, was in force immediately before such commencement.” [Vide Bombay Act 77 of 1958, sec. 3 (7-10-1958): Act 11 of 1960, sec. 87 (1-5-1960)] (Meghalaya) —In […]
Read morePARLIAMENTARY PRIVILEGES UNDER CONSTITUTION AND PRESS
Constituent Assembly: The freedom of press, as one of the members of the Constituent Assembly said, is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions. James Madison when he offered the Bill of Rights to the Congress in 1789 is reported as having said: ‘The right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of this Government’. ‘(See 1 Annals of Congress (1789-96) p. 141). Halsbury’s Law of England “Any act or Omission which obstructs any member or officer of the House in the discharge of their duties, or which has a tendency to produce such a result would constitute contempt of legislature” Earl Jowitt, (Lord Chancellor of Great Britain since 1945-51) defines the privilege in the following words, “An exceptional right of advantage, an exemption from some duty, burden or attendance to which certain persons are entitled, from a supposition of the law that the stations they fill or the offices they are engaged in, are such as require all their care, and that therefore, without this indulgence, it would be impracticable to execute such offices so advantageously as the public good requires”. In his book ‘Law Custom and Constitution’ Anson points out that, “The rules of which they (the privileges) consists are not readily ascertainable, for they obtain legal definition when they are cast in statutory form, or when a conflict between the House and the Courts have resulted in some questions of privilege being settled by judicial decisions”. Unlike England where privileges are uncodified in India its codified in the Constitution in Article 105 and 194. However what constitutes breach is uncodified. “A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.”: [Quoted in Near v. Minnesotta] Blackstone in his Commentaries, “the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” Fundamental Rights vested under Constitution of India Amongst others inter-alia the Fundamental Rights relating to Freedom of Speech and Liberty are enshrined in Articles 19 to 22. Right to Freedom (Articles 19 – 22) Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution guarantees freedom to citizens. The freedom right includes many rights such as: Freedom of speech Freedom of expression Freedom of assembly without arms Freedom of association […]
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