Articles
Deciphering Ratio Decidendi – A Case Study
It is trite to say that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein[1]. Of course, the judgment, or the decision is, and remains binding, unless overruled subsequently. Thus, in the case of a judgment of the Supreme Court, it is what is said under Article 141 of the Constitution, which is a declaration of law and...
Do Personal Laws Come Within The Ambit Of The Constitution ? The Conundrum Continues.......
Legal systems all over the world have constantly grappled with the issue of the nature and content of laws. In a State governed by a written constitution, where laws of all kinds are subordinate to the Constitution, it is axiomatic that an inferior norm that qualifies as law must answer to the test of conformity with the provisions of the written constitution. In this background, it...
Article 50 Of Indian Constitution Vis-a-Vis Independence Of Higher Judiciary: Incessant Disregard Of Legislative History
"The general principle involves two consequences first, that a judge or magistrate who tries a case must not be in any manner connected with the prosecution, or interested in the prosecution. Second he must not be in direct administrative subordinate to anyone connected with the prosecution (or indeed the defence). Quite clearly it is impossible for a judge to take a wholly impartial...
[Law On Reels] 'Ek Ruka Hua Faisla':The Eye To Detail
A jury is a group of people required to attend a legal case and give a verdict based on the evidence presented. If the verdict is not unanimous, the legal case does not meet a near immediate conclusion. The jury obviously requires a discussion organized behind closed doors, in privacy. It may end up requiring more than a day. In those situations, it is preferable, the privacy of the Jurors...
State's Legal Framework To Control Epidemic Diseases And Its Constitutionality
When the humanity is battling against deadly coronavirus, serious questions of federalism, civil liberties and privacy have also been looming large. The Centre armed with shining Disaster Management Act of 2005 (DMA) has been aggressively firing salvos against the States. The States have jumped into the war zone with colonial legislation namely Epidemics Decease Act of 1987 (EDA of...
Legal Flaws On The Mandatory Imposition Of Aarogya Setu App
The extension of the "nationwide lockdown" by another two weeks has brought with it a slew of further directions under the National Disaster Management Act. Many of these directions exacerbate the problems pointed out in previous posts. For example, unlike previous directions, this one actually does impose a physical curfew (between 7PM and 7AM), and directs local authorities to pass...
Justice In Lockdown: Concerning Trend In Bail Hearings Before Trial Courts
'Despite repeated calls, the counsel for the applicant did not appear.' These words appear way too often in orders passed by the District and Sessions Courts at Patiala House Court Complex in New Delhi. The applicants in these cases, whose plea for justice goes unheard due to the absence of their lawyers, are prisoners seeking bail to protect themselves from the COVID19 infection....
Epidemic Diseases (Amendment) Ordinance, 2020 Needs A Relook
In response to the increasing instances of attacks against doctors and healthcare workers throughout the country, the government brought into force the Epidemic Diseases (Amendment) Ordinance, 2020 (the Ordinance). Judging by past experience, there is a looming possibility that the temporary Ordinance may gain permanence through a legislative stamp of validity from the Indian Parliament...
[Column] 'Dispute Resolution As A Service And The New Normal': By CS Vaidyanathan, Senior Advocate
The people have a huge stake in the integrity and independence of the judiciary. In the system of checks and balances, the judiciary as the sentinel on the qui vive has to be ever alert and vigilant to any transgression of the Constitutional limitation by the executive or the legislature. The people have reposed immense faith and trust in the institution of judiciary, because of the...
Exclusion Of CM And State COVID Relief Funds From CSR Is Patently Unconstitutional
Among all the departments of the government of India, one might consider the ministry of corporate affairs the least political of the lot. Despite a benign sounding name and a mostly technical mandate to regulate the corporate sector, it's recent decision to funnel all CSR donations away from State and CM funds, solely to the PM Cares Fund, has given it a disturbingly political...
[NDPS Act] Actual Drug Content Or Total Mixture Amount : Why SC Decision In 'Hira Singh' May Need Reconsideration?
Any NDPS practitioner or their client cannot emphasise enough on the question as to whether it is the total quantity of material seized or the actual drug content by weight in the seized material which decides if the quantity involved in an offence is a small, intermediate or commercial quantity. The answer to this question is pivotal mainly because of two reasons - it decides whether...
Right To Freedom Of Speech And Expression ; Legal And Ethical Checks And Balances On Media
Media is the most powerful platform to express 'right to freedom of speech and expression under our Constitution. Since 1950, starting from cases like Romesh Thapar (1950 SCR 594), the Supreme Court has held that freedom of speech and expression guaranteed to all citizens by Article 19 (1) (a) of Constitution of India includes freedom of the press. The liberty of the press stands on...