Apex Court Research Articles

Public Sentiment on Ayodhya Verdict by the Supreme Court of India

Social media has become one of the most important sources in understanding opinion of people regarding important and trending topics. One such topic was the Supreme Court’s verdict on almost seven-decade old Ayodhya land dispute case. On 9th November 2019, the apex court ordered that the disputed land in question be used for construction of Ram Temple. As it was one of the most anticipated judgements in India’s history, Twitter, was buzzing long before the date of verdict. To perform sentiment analysis, around 70,000 tweets pertaining to the verdict were collected from 26th Oct 2019 to 23rd Nov 2019. The dataset was then divided into three phases i.e., pre-verdict, on day of verdict and post-verdict and NRC Lexicon has been used to analyze the results and extract positive, negative, and neutral tweets. Sentiment analysis of each phase indicates that the verdict has been accepted by the public.

THE DOCTRINE OF ESSENTIAL PRACTICES OF RELIGION

India is a secular state which has no official religion of the State. However, all religions are given equal respect and dignity. The people are free to profess, practice and propagate1 their religion and this is protected under the fundamental right of Article 25. It is to be noted that the Supreme Court is the custodian of the Constitution and has the right to interfere in the legislations that violate the Fundamental rights of the Citizens i.e through the process of Judicial review. On other hand, the practices that are inherent and essential part of the religion cannot be interfered with by the Judiciary or any other organ as it is protected by the Constitution. Eversince the case of ‘The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiyar of Sri Thirur Mutt’, the Apex Court has developed the doctrine of the Essentiality test to determine whether the religious practice is essential part of the religion or not. The primary goal of the research paper is to analyse how the Judiciary employs this test to different cases pertinent to religious practice and describe the criticisms followed on this test. Also, the research also analyses how the role of the Supreme Court varied from the interpreter of the Constitution to the role of theological interpreter. The research is based primarily on the ratio and judgements of the cases. In the end, the overall utility of the essentiality test would be elucidated.

Constitutionalizing Gladue Rights: Critical Perspectives and Prospective Paths Forward

While remedial sentencing practices for Indigenous accused in Canada have often been described in rights-based terms, Canadian jurisprudence has been reluctant to characterize s. 718.2(e) of the Criminal Code as an actual “right.” At the same time, front-line judges who are witnesses to — and complicit in — the systemic overincarceration of Indigenous people have created something more out of Gladue than a Criminal Code sentencing guideline. Indeed, they have followed our apex Court’s direction that “application of the Gladue principles is required in every case involving an Aboriginal offender.” Following a few recent expansions of Gladue into yet more spheres of the administration of colonial justice, this paper investigates whether there is utility in reconceiving Gladue as a Charter right. While the substantive and theoretical criticisms of the legal policy mechanism of Gladue are valid, binding judicial and administrative decision-makers with a Charter responsibility to consider the particular circumstances of Indigenous realities when liberty interests of an accused are at stake can serve to strengthen the check on colonial maladministration of justice.

The Federal Case for Judicial Review

Abstract In ‘The Core of the Case Against Judicial Review’, Jeremy Waldron reset the terms of the debate over judicial review, concluding that a legislature outperformed a court as the institution best suited for resolving rights disagreements. Waldron’s arguments have had influence in both theory and practice, as even now, scholars and politicians in the United Kingdom (UK) draw on his work in debates over codifying the British constitution. But Waldron’s project is grounded in an unstated assumption—his political unit is a unitary nation state. Federation fundamentally challenges his approach and flips his conclusion on its head. This Article presents the “federal” case for judicial review and contends that, in a federation, it is the federal apex court that is superior to the federal legislature for settling disagreements over rights.

Covid-19 Induced Virtual Courts Sessions in Nigeria: Practicalities and Impracticalities

The Presidential Declaration of Corona Virus Disease 19 as a ‘dangerous contagious disease’ occasioned the emergence of several regulations imposing restrictions on movements and social distancing measures. The Chief Justice of Nigeria and other heads of court also approved the Guidelines and Practice Directions containing modalities for virtual court sessions. This paper aims to examine the legal implications of virtual court session. The traditional requirement that court sessions should be held in places open to the public signifies a constitutional disapproval of virtual court sessions. It is contended that Practice Directions and Guidelines are weak mechanisms for entrenching virtual court sessions in Nigeria since they are within the lowest rung of the hierarchy of laws. Hence, the reform needs to be holistic. It should entail amendment of certain provisions of the constitution, laws, and rules of courts to enable a virtual innovation without legal hiccups. In alternative to constitutional amendment which usually takes long, this work, in addition to predicting the decision of the apex court on six grounds, suggests the immediate need for a judicial intervention in interpreting the constitutionality of virtual court session. This is to put to rest the fear harboured by some individuals that the serious judicial efforts put in by judges and counsel via virtual court sessions would end up becoming a nullity on appeal to the apex court.

PROTECTION AGAINST SELF-INCRIMINATION AS A FUNDAMENTAL RIGHT IN INDIA

The Latin adage "Nemon tenetur seipsum accusare"—which translates to "No man is required to accuse himself"—is the earliest example of the right against self-incrimination in mediaeval Roman Catholic law. Through objections against the inquisitorial and blatantly unfair techniques employed to question suspects in the mediaeval times in England, the right gradually developed in common law. One of the cornerstones of the British System of Criminal Law was "no person shall be compelled in any case to be a witness against himself," which the United States of America adopted and included in their Constitution. This principle was later incorporated into the Indian Constitution under Article 20(3). The Constitution (Fourty-fourth Amendment) Act of 1978 gave Article 20 of the Indian Constitution non-derogable status. This means that under no circumstances, not even in an emergency, can the state fail to protect this right. “This exemplifies the importance that our Constitution has placed on it. Throughout the early years of our Constitution, there has been considerable misunderstanding over what evidence is protected, and there has appeared to be a conflict between Article 20(3) and the provisions of the Indian Evidence Act, 1872. be a witness against himself and thereafter under Article 20 of the Indian Constitution.” 1 The Apex Court received these judgments and referred them to an eleven-judge panel after clubbing them.

Jurisdiction of MCI to Deal with Cases of Medical Negligence and Professional Misconduct Against Delinquent Physician: Delhi High Court

Unethical practices and Professional Misconduct by doctors are on the rise. Due to which trust between doctors and patients have declined and dissatisfaction is on the rise among consumers of healthcare in India. To have disciplinary control over registered medical practitioners in India, Medical Council of India has enacted the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002. But due to less emphasis on medical ethics during teaching of medical education in medical colleges, there is no awareness and knowledge among registered medical practitioners. This is one of the reasons for increasing cases against doctors by the patients and/or their attendants. Low legal literacy, complexity of law and statutory provisions (regulations) cases come before various high courts and even before Apex Court of India for enforcement and for interpretation. This paper deals with one such case where a delinquent physician was awarded with penalty of removal of name from State Medical Register/ Indian Medical Register for one year. Doctor challenged the case before Delhi High Court. This Research Paper is an attempt by the author to create awareness among all stakeholders, which help to improve the quality of healthcare in India.

Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights of persons with print and visual disabilities. The threatened rights include the right of access to information, the right to education, the right to equality and the right to human dignity. South Africa has been undergoing a process of copyright reform for over 15 years to remedy the violation of these rights. However, pending the finalisation of this process, the threat to these rights persists, and the matter thus warranted the intervention of the apex court in Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33. This note first considers the regulation of copyright in South Africa to provide context. The note then analyses the Constitutional Court’s decision and considers the decision of the court a quo to provide some background on the matter. The note ends with an analysis of the implications of the judgment for persons with print and visual disabilities and a discussion of issues that the court did not consider.

Judging Readability: A Study of Opinions Written by Apex Court Judges from Australia, Canada, South Africa, the United Kingdom, and the United States

Judging Readability: A Study of Opinions Written by Apex Court Judges from Australia, Canada, South Africa, the United Kingdom, and the United States

SECURING THE RIGHT TO PRIVACY AGAINST THE STATE SURVEILLANCE

This research paper gives an overview on right to privacy as a fundamental and human right of every citizen and the important aspects are being covered subject to restrictions imposed by state. Privacy as a fundamental right has been upheld by the apex court of the nation and the activities of state which violates this essential and basic right needs to be considered by the judiciary under their power of judicial review and judicial activism Data in today’s society is used by the Big Tech companies to make millions of dollar and this trade of data undermines the basic right of citizens who do not want their nasty algorithm to affect the privacy of citizens. A number of cases has been heard by judiciary and the landmark judgments have provided for protection of right to privacy. Article 21 of Indian constitution has a very wide scope and the intent of the framers of the constitution when they framed this article was not to limit its applicability to life and liberty but also cover various other facets of it. This paper will further provide a comprehensive analysis on right to privacy in India.

Role of Constitutional Courts in Matters Concerning Contracts by Government and Public Contracts: a Brief Analysis of Case Law

The Article examines the role of constitutional courts in interpreting the constitutional values as far as it relates to rights of individuals and/or contractors vis-a-vis rights and duties cast on the Government and public entities as defined in Article 12, Constitution of India, 1950 so as to balance the competing rights and duties of both. The Article would focus on contracts which can be said to be Government contracts, the focus on the terms of Contract and special emphasis on Law relating to entering into contract by tenders, black listing/ debarment of Contractors by the Public Sector and/or Government organizations, namely, on the contours of Articles 14,19 and 226 read with interpretation of Articles 298 and 299, Constitution of India, 1950 as interpreted in the realm of administrative/ constitutional jurisdiction of the Constitutional Courts. The Article would take the reader to the term contract and the development in area of Constitutional Law augmenting the perfection of Constitutional vision of justice, boundaries of judicial review and contours of deciding whether the contract was enforceable contract or not. The Article would take the reader to the concept of what is blacklisting, and can a company be blacklisted? If the answer is 'Yes' what are the Rules of black listing of contractors. the principles, namely, enunciated by the Apex Court. The principles of natural justice and their applicability to such debarment, was for any collateral purpose or in colorable exercise of power. The principles for which the prerogative writs are invoked time and again, and the remedies for breach of the contractual liability of the Government would also be discussed at length vis-a-vis statutory remedies of preferring suits or appeals and/or the equitable remedy. In the end on the toxicology of debarment vis-a-vis the period during which it would remain in operation is discussed.

Why the supreme court of Ghana erred on the proper application of the doctrine of vicarious liability in its recent decision in Kwadwo Appiah v. Kwabena Anane

The Common law has evolved in leaps and bounds since the Normans Conquest of 1066. Certain areas of private law including the tort of negligence have developed into settled doctrines well known and generally followed in many common law jurisdictions. Vicarious liability is one of such well-developed doctrines with clear prerequisites for its deployment. The Supreme Court of Ghana is also required to follow the doctrine of vicarious liability unless there is a clear reason for a departure. The apex Court is mandated to justify any departure from its previous decisions with sound judicial analysis of the precedents vis-à-vis the case under consideration. In the case under review, the Supreme Court obviously ignored the established rules for the application of the doctrine of vicarious liability. The Court equally failed to justify the need for such a monumental departure from the tenets of the doctrine. The Supreme Court of Ghana invoked the doctrine of vicarious liability when the most basic of requirements for its applicability- such as the existence of an employment relationship or its analogous relationship between the tortfeasor and the Defendant-had not been established on the facts before the Court. The burden of this paper is to demonstrate that the Court erred when it failed to follow well-established principles for holding the defendant vicariously liable for a tort or breach of statutory duty by the tortfeasor. The paper expresses grave concern that unless the Supreme Court’s decision is departed from by the Court there is going to be a monumental confusion in Ghana’s Legal System as all other courts are bound to follow decisions of the Supreme Court.

Understanding Medical Negligence under the Legal Regimes in Bangladesh: Gaps and Ways Forward

Right to health and medical services are the basic constitutional rights in Bangladesh which are closely related to right to life of a person. But the scenario of medical negligence is unfortunately increasing in Bangladesh which leads to violation ofconstitutional rights and statutory rights of the people. Though there are couples oflegal forums to address right to medical services and to regulate medical professions in Bangladesh, the legal avenue of Bangladesh is suffering from vibrant vacuum of a comprehensive legislation on medical negligence which would specifically address and prevent this offence in Bangladesh. Besides, the prevalent legal frameworks are insufficient and inadequate to provide effective remedies in case of medical negligence. Therefore, to a large extent,the cases of medical negligence are gone unaddressed without efficacious legal remedies due to absence of specific law on this issue, loopholes of the existing laws and discrepancy between law and practice. Though it is positive sign that the apex court of Bangladesh, time to time, is upholding directives to prevent medical negligence and asking the concerned authority to bring reformation in the laws, the concerned authority is hardly found to comply with the directives upheld by the court.Thus, this study will attempt to examine the prevalent national and international legal frameworks dealing with medical negligence and to critically analyze the gaps and lacunas to address and prevent the offence. In addition to, this study will also critically seek the role of the judiciary of Bangladesh in awarding remedies and upholding directive to prevent it. Apart from highlighting the present scenario of medical negligence in Bangladesh, the underpinning thrust of this paper is also to analyze challenges in confronting medical negligence under the existing legal frameworks as well as this study will also strive to highlight the suggestions for bringing reformation in the prevalent legal frameworks in Bangladesh to effectively prosecute medical negligence offences in Bangladesh.

The Right to Nationality and Repatriation under International Law: A Study on Biharis in Bangladesh

This article aims to examine the legal position of Biharis in Bangladesh and their status in international law. It also reiterates the position of the international community, repatriation rights and judicial decisions on Bihari issues. Despite giving the citizenship rights to the Biharies in Bangladesh many of them did not renounce their Pakistani citizenship and actively refused to integrate with majority Bengalis. Therefore, the Bihari people’s right to get into Pakistan, their homeland, is an internationally recognized right having the force of customary international law. The article is based on secondary data materials. The key sources of this article include textbooks, journal articles, daily newspapers and online documents. The study has also relied on international instruments and decided cases of Apex Court of Bangladesh and Pakistan. The article found that Pakistan has violated and continues to violate the Biharis international right to get into their state of nationality by refusing repatriation. Besides, the new generations of stranded Biharis have mostly rejected their forefather’s stances and ideologies. Hence, the government should give them full opportunity to educate themselves to become productive citizens of Bangladesh.

MATTERS CONCERNING SEAT AND VENUE OF ARBITRATION: CRITICAL AND COMPARATIVE ANALYSIS

The parties going for arbitration must confine their mind to the assorted aspects of the Mediation process while choosing a seat under the Arbitration and Conciliation Act, 1996. The selection of seats or venues in conflict during arbitration will be seen through the instance of various countries including India. The paper explores the selection of seats and venues in domestic arbitration. It mainly widens the view of whether the change of venue of arbitration needs a mutual agreement or not. It focuses on the issues that arose before the Supreme Court while resolving the dispute of selecting seats during adjudication. The broader aspect on which this paper relies is the conundrum of the seat and venue of adjudication. Further, it’ll examine the curious case of seat/venue/place in arbitration and therefore the need for legal practitioners to use clear phraseology. It’ll explore the numerous features of selecting a seat for arbitration as an analysis. In addition, the paper is going to cope up with the deepening crisis within the seat venue debate in ‘Indian Arbitration’. Further, the impact of seats in arbitration, then Indian parties choosing the foreign seat of arbitration, and seat v. venue in contemporary arbitral jurisprudence are some important facts that we’d like to grasp. It highlights the recent position of law decided by the Apex Court with relation to the determination of seat of arbitration and at last provides the distinction between seat and venue of Arbitration. Before summarising the entire paper we are going to have a glance at a number of remarkable controversies associated with the seat of adjudication. Lastly, some suggestions are going to be given and through these suggestions, we’ve tried to resolve the dispute that arises during the selection of seat or venue.

The Curious Case of Right to Privacy in India

Privacy forms an intrinsic part of human life and in the present times, it is considered to be an inalienable right of every individual. It is one of the concepts prevalent in the country since the Vedic period but with time it lost its significance and soon it was realized that this basic right of maintaining one’s secrecy and solitude as per one’s whims needs a definitive meaning and stringent practical application to secure citizens autonomy. The increasing need led to Judicial interventions and the successive interpretations of the Apex court became indispensable in establishing privacy as a fundamental right. This paper aims to explore the evolution of the concept of privacy from an undefined to a concrete fundamental right under the Constitution of India.

Commentary on C-307/18 Generics (UK) Ltd v Competition and Markets Authority: competition delayed, competition denied?

This issue’s Contemporary Critique discusses the ruling of the European Court of Justice (ECJ) in Generics (UK) v Competition and Markets Authority. Anticipated as it was, the judgment is something of a milestone in EU antitrust. For one, it marked the first foray by the EU’s apex court into the legal minefield of reverse patent settlements that have, over the past decade, sparked considerable debate in academic and policy-making spheres alike. For another, Generics (UK) is a quite sweeping judgment, addressing head-on several foundational concepts of EU competition law. It therefore has ramifications for EU antitrust enforcement beyond the specific issue at the heart of the case. In her Critique, Krystyna Kowalik-Bańczyk, judge at General Court of the EU, offers a comprehensive reading of the ECJ’s ruling. Generics (UK), she ultimately argues, provides timely and clear clarifications regarding several points of uncertainty that had accumulated over the years. In her view, the Court’s pronouncements should not be viewed as an attack on patent holders but rather a defence of the competitive process.

Book Review: Moseneke D All Rise: A Judicial Memoir (Pickado Africa Johannesburg 2020)

The contribution is the review published by former Deputy Chief Justice, Dikhang Moseneke, about his illustrious 15-year term in the Constitutional Court as both the judge and Deputy Chief Justice. The book uniquely provides a rare window into the dynamics of judicial decision-making at the apex court. Often, legal academics only interact with the judiciary through the judgements. Yet, Moseneke gives the reader much more to the judicial decision-making process than just the judgements. The book further traverses one of the most controversial aspects of the Constitutional Court’s jurisprudence, such as same-sex marriages, succession to chieftainship.

Compensatory Assistance To The Victims Of Acid Attacks

Violence with throwing acid is a heinous act of crime which falls under the offence against body. Attack of acid is mostly committed against women who are of young age. It is an intentional act, object in most cases to take revenge. Basically, it is gender based violence and gradually increasing against women. Acid that normally used in attack are easily available in market. The Criminal Law (Amendment) Act, 2013 and guidelines issued by the apex court under the Laxmi case regarding compensation and assistance in favour of acid attack survivor, so the proper treatment can be done, expense can be bearable and victim can face the challenges. Through this research paper scholar wants to highlight on caused, impact and relief provide by the state to the innocent victim and also recommended that proper check should be done on sale of acids.

The role of superior judiciary in protecting its independence: A case study of judicial legitimization of military regimes in Pakistan

Pakistan has faced four military regimes, in three out of it, the military rulers were not declared illegitimate by the supreme judiciary, on the contrary, the doctrine of necessity became the quoted terms as causes of accepting those extra-constitutional moves. While adjudicating these cases, the establishment either used their personal influence or manured the judiciary to take afresh oath of allegiance of the military rulers under the provisional constitutional orders (PCO). Thus, the cases before these judges were just hoodwinking or a lip service of endorsing and affixing a stamp of validity. Even then the superior judiciary had authorized the military rulers to amend the constitution, which is the role prerogative of the parliament not only as per Pakistan constitution. Thus, superior judiciary was unable to stand in front of power dynamic, except in the case of Asma Gillani vs federation of Pakistan, but it was adjudicated, when General Yahya was not in power. While applying heterogeneous sampling research techniques the study has attempted to accumulate a variety of expert opinions on the role and independence of the judiciary. Findings show that the judges, to assure smooth running of the country, sacrificed the very spirit of the constitution. The apex court decisions only tried to maintain the statuesque and to pave the way to let the system run.