ARE LAWS CAUSING THE DESTRUCTION OF THE FAMILY NUCLEUS THREAD?
#BREAKING Union Law Minister Arjun Ram Meghwal confirmed a review of BNS Sections 85 and 86, replicating the repealed IPC Section 498A, due to misuse and inadequate safeguards for men. This is the first review of the new Indian criminal codes, aimed at preventing frivolous complaints while protecting women under domestic violence laws ( 9th January 2025) HINDU MARRIAGES AND LAW – A BRIEF ANALYSIS Why we are discussing this point. Has emotional, civic, cultural and aesthetic moral, values and responsibilities ruptured? Girls are pregnant from illicit or unauthenticated relationship and then when man is not ready to marry, she does two things apply for abortion and FIR for rape. The sense of responsibility towards parents has evaporated? Let’s discuss the various issues. Oyo, a hotel chain has made policy to not to permit couples unless they show marriage certificate. This shows the hotel chain doesn’t want to get involved in criminal and other consequential legal trouble. It says that we are not running a brothel. Hotel authorities are right. But do youngsters understand what path they have chosen? Whether girls understand what matrimonial responsibilities she is objecting is much better than having unauthenticated relationships. In such unauthenticated relation she does not get more than stress, insecurity and no legal rights, sometimes even cut into pieces and thrown in jungle. Misuse of freedom and education will in long run reverse entire process and in future again women will be arrested to household and early marriage. You may say that there is advancement in science but there is no change in biological science. Hindu marriage rituals contains two main ceremony. One is Kanyadaan and another is phera. Marriage has four basic vows. Pious institution of marriage is taken over by physical need. Girls were married at 16 may become right ritual if the trend of unauthenticated relations continue to play real havoc. There are questions asked on social media platforms that does school criminalize love? Those who are involved in school always get married? . All such incidents are not forceful. First phera: The couple prays for nourishment and prosperity, and promises to support each other’s needs and establish a stable home Second phera: The couple prays for strength and courage, and promises to support each other through challenges Third phera: The couple prays for wealth, and asks for the strength to share happiness and pain together Fourth phera: The couple prays for increased love and respect for each other and their families Fifth phera: The couple prays for noble children Sixth phera: The couple prays for a long and peaceful life together Seventh phera: The couple prays for companionship, togetherness, loyalty, and understanding Nowadays youngsters have multiple heart breaks and relationships. Which ultimately leads to mental disorders. Sundown parties and unaccountability take a toll of beautiful life song. Divorces are common and courts also promote by reducing waiting time of six months for mutual divorces. Demand for alimony and maintenance is the main fighting point for which multiple FIRs are filed as per legal advice against husband and his family members. The irresponsibility towards children before coming to conclusion […]
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LIVING WILL- EUTHENESIA
RIGHT TO DIE WITH DIGNITY A FUNDAMENTAL RIGHT IN INDIA? It is easy to live but difficult to die. Life is lived on hope … Than why we are studying Living Will and Euthenesia? What is Euthanasia? It’s a the practice (most countries have not legalized) of killing somebody without pain who wants to die because he/she is suffering from a disease that cannot be cured. We will see this in detail hereinafter discussing Supreme Court Judgments. In India euthanasia was not permitted. Though practice of SATI was prevalent in India, A widow would jump in pyre of her husband as in Hindu religion marriage is not contract but a relationship for 7 births. So, marriage ceremony is also called saptapadi. The SATI practice was banned The Bengal Sati Regulation or Regulation XVII, A. D. 1829 of the Bengal Code was a legal act promulgated in British India under East India Company rule, by the then Governor-General Lord William Bentinck. The act made the practice of sati—or the immolation of a Hindu widow on the funeral pyre of her deceased husband—declared illegal in all jurisdictions of British India and subject to legal prosecution by Britishers. Subsequently Raja Rammohan Roy in played remarkable role in transformation in the social ideas in the History of India. Age old ‘Sati system’, i.e., burning of Widow in her dead husband’s funeral pyre which existed in India was abolished due to the effort of Raja Ram Mohan Roy He was the founder of Brahmo samaj and he also played a vital role in the abolition of Polygamy and Child marriage in India. Another practice in India was of Johar. Sati and Johar are not the same. Johar was self-immolation practiced in Rajasthan to save chastity by women from Mughals and attackers. Well, these are not in stricto sensu can be called euthanasia but a living death for dignity of woman which was part of religious practice. The last documented case of sati in India was in the year 2008, when Lalmati Verma, a 75-year-old woman, jumped into her husband’s funeral pyre after mourners had left the cremation site. Here are some other recent cases of sati: 2006 : Vidyawati, a 35-year-old woman, allegedly jumped into her husband’s funeral pyre in Rari-Bujurg Village, Uttar Pradesh 2006 : Janakrani, a 40-year-old woman, burned to death on her husband’s funeral pyre in Sagar district 2002 : Kuttu, a 65-year-old woman, died after sitting on her husband’s funeral pyre in Panna district of Madhya Pradesh 1987 : case of Roop Kanwar, India passed additional legislation against sati was passed namely The Commission of Sati (Prevention) Act, 1987 is a law in India that aims to prevent the practice of sati and the glorification of it: Purpose The act prevents the voluntary or forced burning or burying alive of a widow. It also prohibits actions that glorify sati, such as ceremonies, processions, financial trusts, temples, or other actions that honour the memory of a widow who committed sati. Punishment The act punishes anyone who glorifies sati with imprisonment of at least one year and up to seven years, and a […]
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SUBSTRATUM OF THE CONSTITUTION OF INDIA A LEGAL PHILOSOPHY ?
Today we hear opposition leader Shri. Rahul Gandhi that there is fear that if ruling party retains power in upcoming election than they will amend the constitution. First, we will see views of Jawaharlal Nehru, then we will discuss method of amendment and how many times Constitution is amended. Jawaharlal Nehru in constituent Assembly said, “During the discussion in the Constituent Assembly on this aspect, some members were in favour of adopting an easier mode of amending procedure for the initial five to ten years. Explaining why it was necessary to introduce an element of flexibility in the Constitution,” Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948, “While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible … while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I think it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote – man and woman – the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so – under this Constitution of course it will have the right to do anything – should have an easy opportunity to make such changes as it wants to. But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible …” So Nehru ji was in favour of flexible Constitution. How many amendments till date: As of September 2023, there have been 106 amendments of the Constitution of India since it was first enacted in 1950. There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by Article 368. Article 368 reads as under : Power of Parliament to amend the Constitution and procedure therefor (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of […]
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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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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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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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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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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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