Ble Supreme Court Research Articles

Compensatory Justice Jurisprudence in INDIAN Public Law – An Analysis

Compensatory Justice Jurisprudence took birth in the case of Rudal Sah when the Hon'ble Supreme Court broke one more link in the shackles of restrictive interpretation and added another feather in the cap of Article 21 to crown the personal life and liberty of people. Post Rudal, there are a series of judgments discussed in the present paper which strengthened the power of Supreme Court and High Courts to compensate the victims or their dependents for the excesses done by the State machinery or on failure of State to take care when there was a duty imposed upon them to exercise reasonable care. There are cases ranging from 'birth after vasectomy' to 'death due to open manholes' to 'custodial death' wherein Supreme Court has ventured out to grant compensation. Over a period of time, the Hon'ble Supreme Court has given a dynamic interpretation to the constitutional remedies provision under the Constitution so as to enhance the fundamental rights of an individual. The present paper examines the cases in which the Courts have awarded compensation for the excesses committed by the state or for negligence of the State as well as examine the self-imposed restrictions of Supreme Court in not awarding compensation in certain cases. However, the question always remain as to what is the rationale for providing such compensation and if granted how much is to be granted. Further what is the criterion for providing the compensation or it is ad hoc. What about the erring officials in discharging their public duty and finally whether judicial activism has led to judicial adventurism.

Legislative Pivot of Section 3 of the Competition Act, 2002 and the Argument of 'Relevant Turnover' as Against 'Total Turnover': Key Takeaways from Excel Crop Care Ltd. v. Competition Commission of India (Supreme Court)

The Competition Act, 2002 is a regulatory legislation enacted to maintain free market so that the Adam Smith’s concept of invisible hand operates unhindered in the background. The Hon’ble Supreme Court of India took upon itself, in the matter of Excel Crop Care v. Competition Commission of India (2017), the task of answering certain crucial questions of law relating to the Competition Act, 2002 (hereinafter referred to as the “Act”), which came before the Hon’ble Court for adjudication. These questions can be accounted for as follows: a. Section 3 of the Act having been notified on 20th May, 2009 is prospective or retrospective in operation? b. Is there any difference between collusive bidding and bid rigging? c. Whether penalty under Section 27(b) of the Act has to be on “total turnover” of the company covering all its products or it is relatable to “relevant turnover” viz. relating to the product in question in respect whereof the provisions of the Act are contravened? This research paper is a lucid presentation of the answers given to the above mentioned questions by the Hon'ble Supreme Court of India.

Hon'ble Justice V.R. Krishna Iyer: Thoughts on Corporates and Commercial Laws

I feel privileged and short of words to write a chapter in this book compiling thoughts on Hon’ble Justice V.R. Krishna Iyer. With my limited capacity of vocabulary, I have tried to read some of the reflections of his Lordships through his compilation of writings in over a dozen of books and his decisions as a judge of the Hon’ble Supreme Court of India.

Alternative Dispute Resolution Mechanism for Ensuring Speedy Justice in India: A Conceptual Analysis and Legislative Framework

In a modern technologically and economically well advanced society, litigation is a primary means of resolving disputes. But, courts are clogged with cases and pendency is increasing every year in the subordinate courts. The reasons for the delay has been identified by high powered committee reports including Law commission of Indiaalso recommended changes in the procedural laws. The Hon'ble Supreme Court in plethora of cases identified the causes for the delay and at the recognised right to speedy justice as a fundamental right. Though the Supreme Court's interpretation of Article 21 was restricted to the applicability of right in all the stages of criminal cases, but not answered pertaining to extension of the right to civil cases. But, Article 21 is a uniform in ambit and extent i.e., any provision of law enshrined under any Act, which is not fair, just and reasonable, causes delay in the administration of justice, then it amounts to violation of right speedy justice. Though, the problem has been addressed from time to time and introduced necessary amendments in the procedural laws. Also measures such as establishing additional courts, use of court management systems, and use of ICT has been strengthened. But all these efforts has not been yielded considerable results and pendency is increasing throughout the country. Therefore, immediate, easy, inexpensive, fast justice is possible only by means of adopting alternative dispute resolution mechanisms. This paper examines the concept of ADR mechanisms, its development, and extent of application of the mechanisms to different categories of cases provided under various statutes along with the judicial reflections for proper implementation.

Taxation of Software Transactions in India

The present millennia has witnessed a tremendous growth in the Information Technology field in India and the software transactions, both domestic and foreign, have grown manifold during this period. The International and domestic software companies have found India as a market with an immense potential for their off-shelf as well as customised products. As the underlying intellectual property rights in the software is subject to the copyright laws, the transfer of proprietary rights involved in a purchase of software totally differs from the sale of traditional goods and services. Even though the medium of storage of software, like a CD Rom or a memory card, is tangible the inherent intangible nature of the software for which the purchaser is paying brings in an element of ambiguity, making it difficult to draw a definite boundary to define the transaction either as a sale of good or extension of service. Under the present indirect tax laws these software transfers are subject to sales tax/VAT, service tax or both, many a time resulting in double taxation of such transfers. The net effect of this is an increase in the effective price of the software which is ultimately borne by the purchaser. Even though Hon’ble Supreme Court had in Tata Consultancy Services v. State of Andhra Pradesh brought in some clarification to the prevailing ambiguities, the question as to whether the sale of a software is to be classified as a sale of good or a service is yet to be answered concretely which is evidenced by the subsequent clarification given under the Education guide released by CBEC and the subsequent writ applications filed before various High Courts in this regard.This paper attempts to understand the nature of software transactions and how the same stands different from the traditional sale of goods. An attempt is made herein to understand whether the software transaction can be fit into watertight compartments of Sale of Goods or service, in the light of the Judgement given by various legal forums.

Free vs hate speech on social media: the Indian perspective

Purpose The Hon’ble Supreme Court of India, in a landmark judgment, scrapped a draconian law [Section 66 (A)] that gave the police absolute power to put behind bars anybody who was found posting offensive or annoying comments online. This paper aims to examine the take of people on the “Free Speech via Social Media” issue and their attitude towards the way sensitive messages/information are posted, shared and forwarded on social media, especially, Facebook. Design/methodology/approach The research was carried out on a sample of 200 social media users, all picked up randomly, from five Indian states/Union Territories. Data were collected through a questionnaire, and users were contacted through e-mail. Data collected were analyzed through the Kolmogorov–Smirnov (K-S) Z test. Findings The findings indicate that hate posts/messages are on the rise, and more and more users are joining in. Besides, prosecution happens only when the aggrieved party is influential or powerful. Practical implications The findings of this research give a strong insight into the social media behaviour of users in relation to hate contents/posts. The study establishes the fact that Indian people are in favour of free speech, but with a sense of restraint and responsibility. The work could form the basis for future research on various aspects of hate speech on social media. Researchers could study the trials and prosecutions that have happened over the past few years and whether punishment has acted as a deterrent. Originality/value The research is likely to be important for those involved in work on freedom of speech or hate speech through social media. Social networking sites such as Facebook would also get some insights into users’ perception towards free and hate speech mechanism on social media.

An overview of mid-day meal scheme in Karnataka

The present study was made to evaluate the impact of mid- day meal scheme (MDMS) in Karnataka State. MDM Scheme was implemented in educationally and economically backward North Eastern districts of the state during 2002-03. Later the scheme was extended to other 20 districts of the state under National Programme for Nutritional Support to Primary Education (NP-NSPE) with the title Akshara Dasoha during 2003-04 in a phased manner. As per the directions of the Hon'ble Supreme Court the scheme of providing hot cooked meal is implemented for all the children of classes I to V of both Government and Government aided primary schools. The scheme of providing free food grains @ 3 kg / child per month to children of class I to V of Government aided schools on the basis of 80 per cent of attendance in a month under NP-NSPE is continued during 2002-03 and 2003-04. The programme was extended to VI and VII standards in Government/ Government Aided Schools in the State during 2004 and the programme of providing hot cooked meal transferred to Zilla Panchayat w.e.f. 01.04.2005. The programme is extended to students of VIII standard studying in upgraded primary schools and students of VIII to X standard of Govt and Aided High Schools. Many scholars pointed out in their studies that the scheme has a good impact on child nutrition, school attendance and social equity.

Political Dimension of Indian Federal System: An Evaluation

Indian federalism is a blend of formation of federations of both the existing modes of federations The prevailing situations at the juncture in the country forced the Constituent Assembly to make India a federation with strong central government. The constitution makes adequate provisions for a true federation to meet out all the exigencies. In practice, it reflects both federal and unitary governments’ features as per the demand of the situations and have experienced, the bitter taste of emergency and coalition government. The decisions of the Hon’ble Supreme Court also contributed in clearing the grey areas. Undoubtedly, the constitution is a fundamental document to provide the guidelines and limits to government. Its success and applicability ultimately depends upon the mental make-up, honesty, and commitment of the persons at the helm of the affairs. The present write-up comprises of salient features of Indian federation, its historical profile, and the concluding remarks.

Sahara India Real Estate Corp. Ltd. vs. Securities and Exchange Board of India: A Case Study

The judgment of the Hon’ble Supreme Court of India, pronounced recently on 11th September, 2012 in the case of Sahara India Real Estate Corp. Ltd. & Ors. v. Securities & Exchange Board of India & Anr. centered on finding an acceptable constitutional balance between free press and administration of justice, sparked off a debate on whether the concept of prior restraint on media reporting of judicial proceedings is valid under the constitutional tenets. The Constitutional Bench headed by the Chief Justice, while declining to lay down broad guidelines for the media, did provide certain specific directions with respect to the reporting of matters in the mass media.The most pertinent aspect of the judgment relates to the doctrine of postponement whereby the concerned High Court or the Supreme Court can direct that the publication of judicial proceedings be delayed for a certain period of time. The 56-page long judgment, penned by the Chief Justice of India, is built on the presumption that under the Indian Constitution, probably, no values are absolute and that it also follows that in appropriate case one right [say freedom of expression] may have to yield to the other right like the right to a fair trial. Drawing from the above statement, the Court went on to add that even the concept of ‘open justice’ is not absolute and hence Courts may place a restriction on the same in the interest of administration of justice.

Survivorship and Intestate Succession Understanding the Difference between Section 6 and 8 of Hindu Succession Act, 1956

The Hon'ble Supreme Court in decision between Uttam v. Saubhag Singh and other has summarized the law, insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005. This article analysis the case of Uttam with regard to succession by survivorship and intestate under the Hindu Succession Act, 1956.

Safety Concerns of Ancient Temple due to Blasting in Adjacent Mines

Directives from the Hon’ble Supreme Court of India led to the banning of mining activities within a radius of 2 km of the Sri Jambunatheswara ancient temple in Hospet taluk of Karnataka State of India. On recommendation of the Department of Archaeology & Museums, Government of Karnataka, CSIR-CIMFR undertook extensive investigations wherein the ground vibration and air overpressure due to blasting in nearby iron ore mines were monitored to assess their damage and annoyance potentials. The magnitudes of blast-induced ground vibration and air-overpressure recorded in the temple were found to be within the standard safe limits stipulated by the Directorate General of Mines Safety, India when trial blasts were carried out at a distance greater than 290 m from the temple. When blasts were conducted at a distance of beyond 845 m from the temple, neither vibration nor sound of blasting could be recorded or heard at the temple premises, indicating it a safe zone for blasting. After thorough analyses of the recorded data, precise blast design parameters were recommended for blasting at distances beyond 200 m from the temple and allowing this distance to be demarcated as the safe zone where controlled blasting could ensure safety of the ancient temple.

Shelf-Life and Marketability of Goods A Vexed Question Under Central Excise Law

Taxation of commodities under excise, which in chargeable on the event of ‘manufacture’ of goods has given rise to various unique problems of assessment and chargeability. The assessee and the department have been at loggerheads with each other over excisability of various items since the inception of Central Excise Act, 1944. Over the years, the excisability of goods has become one of the most contentious issue as excise duty is only chargeable on ‘manufactured goods’. The Hon’ble Supreme Court has time and again addressed the issue of excisability vis-a-vis various goods and there is a rich albeit confusing jurisprudence on this issue. The author in the present article seeks to discuss the issue relating to marketability of manufactured and existing jurisprudence on this issue.

The Doctrine of 'Basic Structure' of the Indian Constitution: A Critique

The ‘Doctrine of Basic Structure’ is a judge-made doctrine which was propounded by the Indian Judiciary on 24th April 1973 in Keshavananda Bharati Sripadagalvaru case to put a limitation on the amending powers of the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in exercise of its ‘constituent power’ under the Constitution. Though attempt was first made in the year 1967 in Golakh Nath case by M. K. Nambyar to get it approved in the name of ‘necessary implied restraint on the amending power of the Parliament’ but it took almost half decade for the Indian judiciary to overcome its hesitancy and pronounce it in Keshavananda case the same thing what German Professor Dietrich Conrad already said in his lecture that he delivered in India in 1965. The Constitution-makers gave the power to amend the Constitution of India in the hands of the Parliament so as to cope up with the changing needs and demands of ‘we the people’ under Article 368 and to make the Constitution 'stand amended' but the Parliament in exercise of its constituent power under Article 368 of the Indian Constitution can amend any of the provisions of the Constitution and this power empowers the Parliament to amend even Article 368 itself which might led the Constitution of India opposite of 'stand amended' i.e., 'sit amended'. Such unlimited power of amendment in the hand of Parliament without defined limit raises number of questions like, is not there any limitation on the amending powers of the Parliament? If the answer of this question is not in affirmative with a reason that the Constitution makers did not intended for such limitation otherwise they would have provided for such limitations in the Constitution, then another question arises to what extent can the Parliament amend the basic law of the land? And if there will be no limitation on the amending power of the Parliament, are there not chances that this power of amendment in the name of ‘constituent power’ can be abused? Such raised propositions in this paper are covered and discussed under various Parts. Part II covers the constitutional concept of the ‘Basic Structure’ doctrine. The judicial journey and development of the ‘Basic Structure’ doctrine has been covered from Shankari Prasad v. Union of India (1951) in Part III, Sajjan Singh v. State of Rajasthan(1965) in Part IV, I. C. Golakhnath v. State of Punjab (1967) in Part V and finally the Keshavananda Bharati v. State of Kerala (1973) in Part VI. The constitutional-unconstitutional game that Parliament played in the name of Ninth Schedule of the Constitution has been covered in Part VII where the Hon’ble Supreme Court applied the doctrine of 24th April 1973 in the I. R. Coelho case (2007). Part VIII deals with the Pramati Educational and Cultural Trust case (2014) where the Supreme Court applied the Basic Structure doctrine and declared that Articles 15(5) and 21-A of the Indian Constitution are in consonance with the spirit of the doctrine and are not violative of the Basic Structure doctrine. Part IX covers the test of Basic Structure doctrine with the recapitulating words in Part X. Indeed, there is a Presumption of Constitutionality when the questions arises as to the validity or the constitutionality of any particular provision or provisions of the Constitution which has to be proved beyond all reasonable doubt by the person challenging the said provision or the constitutional notion. In this regard, another question on the same footing of John Rawl’s theory of basic structure of the society arises here that this paper seeks to answer through judicial pronouncements, is the basic structure basic?

Medico-legal Aspect of Pregnancy and Delivery: A Critical Case Review

For all parents and grandparents, birth is a joy, a wonder and a renewal of hope. But, one of the most devastating, life-changing events for parents is finding out their child suffered cerebral palsy. NCDRC while awarding compensation observed that human life is most precious; it is extremely difficult to decide the quantum of compensation in the medical negligence cases. NCDRC pointed out the difficulty in calculation of compensation and further observed that the multiplier method which typically used in motor accident cases not often conclusive for ‘just and adequate compensation’. Hon‘ble Supreme Court has held that there is no restriction that courts can award compensation only up to what is demanded by the complainant. NCDRC cautioned that the corporate hospitals and Specialists, as might be expected, must perform at a higher level than other hospitals/general practitioners.

Disorders of sex development: The quintessence of perennial controversies-III - DSD, transgenders and the judgment by the Hon′ble Supreme Court of India

Disorders of sex development: The quintessence of perennial controversies-III - DSD, transgenders and the judgment by the Hon′ble Supreme Court of India

Urge For an Independent Judiciary or Just a Game of Thrones: A Jurisprudential and Comparitive Perspective

Now, in a recent development the Hon’ble Supreme Court of India has struck down a central law aimed at forming a National Judicial Appointment Commission which was enacted vis. a vis. the Constitution (Ninety-Ninth Amendment) Act, 2014. It may seem like another quotidian judgment delivered by the Hon’ble Court but it actually is the biggest crisis in the working of Indian model of separation of powers till date. It may seem like any other judgment of the Hon’ble court declaring ultra vires a law made by the legislature but in effect it undermines the competence of the legislature and the executive and gives a severe blow to the system of checks and balances as envisaged by our constitution makers. Was the court right in doing so? What were the reasons for which the court was forced to do so? Is the continuous interference in policy making on part of the court viable? Is it hampering the power of other organs of the state or just exercising the power of judicial review? Is it correct jurisprudentially and if not then what needs to be done? These are the sort of questions the author aims to answer by the medium of this present article for which the author has analyzed the situation in hand by using doctrines, case laws and his own opinions. In the end the author will try to suggest some workable solutions so that a system of checks and balances is maintained without hampering the independence of any of the organs of state.

Sec. 24 of RFCTLARR Act 2013 Retrospective Effect Clause for Transition of Land Acquisition Proposals from LA Act 1894 to RFCTLARR Act

The Right to Fair Compensation and Transparency Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“ New Act of 2013”) came into force from January 2014 repealing the erstwhile Land Acquisition Act, 1894 (“LA Act 1894”). There were multiple areas of uncertainties at the time the New Act of 2013 got presidential accent. One of the areas of the uncertainties is the operation of Section 24(2) of the New Act of The said provision states that fresh proceedings for land acquisition shall have to be carried out under New Act of 2013 succeeding the proceedings under the LA Act 1894, case no physical possession of land has been taken or if compensation has not been paid five years after an award has been made under Section 11 of the LA Act 1894. Effectively, this provision makes the applicability of the New Act retrospective that respect and the doubt arose as to how the said provision would work the present scenario when so many LA proposals are mid-way and everybody want to close the LA Case the old act since it has a scope to pay less and R&R was not mandatory. In same month of January 2014 a full-judge bench of the Hon’ble Supreme Court of India (“SC”) the Pune Municipal Corporation case held that, in a case where an award under Section 11 of the LA Act 1894 was passed 2008, the land acquisition proceedings had lapsed since compensation for the acquisition had not been “paid” to the landowners, as per Section 24(2) of the New Act of 2013. The SC’s judgment was based upon the fact that the Collector had not made the payments into a court, as required under the provisions of Section 31(2) of the LA Act 1894. The Pune Municipal Corporation’s decision to expedite the transition from the Land Acquisition Act, 1894 to the Right to Fair Compensation and Transparency Land Acquisition, Rehabilitation and Resettlement Act, 2013 is a shot the arm for supporters of the new act. I have tried to analyse the Pros and cons of the proviso u/s 24 of New Act of 2013 and its far reaching consequences once the LA proceedings will resume following the Rules under New Act of 2013 will come to force all states and union of India. Citing few Judgement s of various High courts India I wanted to high light my paper what should be the approach to the provisions of Law u/s 24 of New LA Act

Bhatia International to BALCO. : Paradigm Shift in Arbitration Law in India.

The Constitutional Bench of the Hon'ble Supreme Court, on 6 September 2012 passed a path breaking judgment regarding the future implications of foreign award and foreign arbitration vis a vis jurisdiction of Indian Courts through Bharat Aluminum Co. v. Kaiser Aluminum Technical Services Inc .The Court overruled its earlier decision given in Bhatia International v. Bulk Trading S.A and Venture Global Engineering v. Satyam Computer Services ltd. and held that Indian Courts does not have jurisdiction to interfere in arbitral proceedings held outside India. This Judgment of the honorable Court was well received by the Legal scholars around the world. In the present article the author(s) has discussed in detail the position prior to the judgment, position in other countries, as well as the changes brought in by the said judgment while critically analyzing its implications.

A Case Analysis on the Ramlila Maidan Incident, 2011

Being the first case wherein right to sleep was regarded as a fundamental right this is one of the landmark judgments in the Indian jurisprudence The original intent was to scrutinize the judgment pronounced by the Hon’ble Supreme Court of India by the unjust action of the Union of India.

A Review of the Book 'Developing the Judicial Education Discourse Written by Geeta Oberoi'

The book is a doctoral thesis of Geeta Oberoi — a judicial educator in India with vast experience in homeland and abroad — seems to be a best presentation of the subject for which she and the University of Delhi and Department of Law and the Deans: Prof. Nomita Agarwal, Prof. S.N. Singh and Prof. Gurdip Singh and also the Judicial Studies Board of England and Wales now Judicial College and the School of Law, University of Warwick all deserve congratulations. Thomson Reuters (A division of Thomson Reuters South Asia Private Limited) is the publisher of the book and deserves special mention to bring out the work on an important topic of judicial education. It has been beautifully printed and bound by the Rakmo Press Pvt. Ltd., New Delhi.The book under review is divided by the learned author in eight chapters to maintain fair balance. It is an addition in the legal and judicial education literature. It is an evidence of the fact that sons and daughters in the east are not lacking potential in understanding and developing knowledge of all kinds provided fair and proper opportunities are made available to them by those who are answerable to their own conscience, the people at large and the Creator of all the worlds. An eagle can show its excellent performance when it is free and there is vast environment. Difficulties and hardships that are natural are to be boldly confronted and labour of no person goes waste in the Universal Policy of the Creator of all the Worlds. The author has named and thanked for the help and assistance provided to her in homeland or abroad, including judges of the Hon’ble Supreme Court, High Courts, District Courts and so on. This also is an evidence that there are always present noble souls who encourage pursuits of knowledge with an open and sincere heart.