SSRN Articles

• Florian Möslein, Legal Innovation in European Contract Law: Within and Beyond the (Draft) Common Frame of Reference
  

Abstract:

The Europeanization of contract law has continuously developed over the past 25 years. It is now at a defining stage, with the Draft Common Frame of Reference (DCFR) recently being published. This article is not primarily concerned with the substance of this instrument, but with the process of legal innovation it might trigger. The hypothesis is that the adoption of such a rulebook will have a significant impact on the future development of European contract law. Yet the nature and likely effects of such impact are difficult to predict, given that functions, elements and purposes of the new instrument still need to be identified and defined. In any event, the DCFR will modify the pattern of future legal change in European contract law. The crucial question is: Will it provide a dynamic framework for legal innovation?

• Rafael Arenas García, Precontractual Liability in the Rome II Regulation
  

Abstract:

Article 12 of the Rome II Regulation governs the non-contractual obligations arising out of dealings prior to the conclusion of a contract and establishes that the law applicable to these obligations shall be the law that applies to the contract. Where it is not possible to determine such law, the second paragraph of article 12 specifies the general connecting factors of Rome II Regulation. Moreover, it is possible to choose the law applicable in culpa in contrahendo issues. These solutions are nonetheless not problem-free. It seems not quite appropriate that the law applicable to a future contract may govern the specific obligation not to breach negotiations from a given point in time and that parties cannot rely on the law of the country in which any of them have their habitual residence in order to uphold the possibility of breaching negotiations without being held liable. It is neither appropriate that the law applicable to a future contract might govern the liability arising from negotiations which take place in the setting of a concluded agreement.

• Paloma De Barrón Arniches, Comments on the Service Contract in the Common Frame of Reference Abstract:

The recent publication of the draft Common Frame of Reference invites analysis of some of the distinguishing features of the European service contracts designed by the Study Group on European Civil Code. It contains important innovations in comparison with the traditional approach supported by Spanish scholarship and the case law of the Supreme Court. This work aims to expose some of the solutions introduced by the new European contract law, and to contribute to the debate on a necessary modernization of the Spanish civil regulation of the service contracts

Recent Judgments

Shin-Etsu Chemical Co.Ltd. v. Vindhya Telelinks Ltd. & Ors
CIVIL APPEAL NO. 4998 of 2007 decided by R. V. Raveendran & Markandey Katju, JJ. on March 27, 2009

• Facts: Vindhya Telelinks Ltd. (Vindhya) and Optic Fibre Goa Ltd (Optic) on the one hand and Shin-Etsu (Shin) one the other entered into a long sale and purchase agreement. Vindhya and Optic filed a civil suit before the Civil Judge, Class-I, Rewa, Madhya Pradesh for a declaration that the said Agreement was null and void and also for the relief of permanent injunction restraining Shin from from relying upon/invoking/giving effect to any term of the said agreement. Birla Ericsson Optical Ltd. (Birla) and Optic on the one hand and Shin-Etsu (Shin) one the other entered into a long sale and purchase agreement. Birla and and Optic filed a civil suit for similar reliefs. Shin filed an application before the civil court for dismissal of the said civil suit under Order VII Rule 11 of the Code of Civil Procedure and Sections 5 & 8 of the Arbitration and Conciliation Act, 1996 (Act). The said provision reads as follows:

• 11. Rejection of plaint— The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law :
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

• 5. Extent of judicial intervention. -Notwithstanding anything contained in any other law for the time being in force, in matter governed by this Part, no judicial authority shall intervene except where so provided in this Part.
  

• 8. Power to refer parties to arbitration where there is an arbitration agreement.

(1) A judicial authority before which an action is brought in a matter, which is the subject of an arbitration agreement, shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

• The Civil Judge, Class-I, Rewa, Madhya Pradesh (trial court) dismissed the Civil Suit. A revision petition filed before the Madhya Pradesh High Court also met the same fate. A Civil Appeal was then filed before the Supreme Court, which, on 7.12.2005 set aside the decisions of the trial court and of the MPHC, and ordered the trial court to consider the “matters afresh treating the applications filed by the appellant herein (under Order 7 Rule 11 CPC read with sections 5 and 8 of the Act) as applications under Section 45 of the Act and dispose them in terms of the decision in Aksh Optifibre Ltd.” Section 45 of the Act reads:

45. Power of judicial authority to refer parties to arbitration.
Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908) a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

• Re-consideration by the Trial Court and thereafter: On remand, the Trial Court held that the application filed on the basis of S 45 was inoperative, the parties cannot be referred to arbitration “and the matter should be proceeded with and decided on merits by the court.” On appeal, the IV Additional District Judge, Rewa, allowed the appeals, and remitted the matters to the Trial Court with a direction to consider the applications of the appellant under section 45 of the Act, in accordance with the procedure and principles laid down in Para 111 of the decision in Shin Etsu. Against the order of the IV Additional District Judge, Rewa, Shin filed an appeal under Article 136 of the Constitution before the Supreme Court contending that: the IV Additional District Judge, Rewa should not have remanded the matter back to the trial court as it had not found that the arbitration agreement was null, void, inoperative or incapable of being performed. Rather, it should have merely allowed the appeal. It was contended by the Respondents that a petition under Article 136 was not, and the High Court was the appropriate forum to seek remedy. Against, this Shin contends that the matter has been pending for two years and the matter should not be sent back to the High Court.

Decision of the Supreme Court:

• ·The SC framed two issues:

Whether the appellants can directly approach this Court under Article 136 of the Constitution, against the orders of the District Court, without approaching the High Court?
Even if the answer to the first question is in the negative, whether leave having been granted by this Court, these appeals should be considered and decided on merits?

The SC Held:

• Section 50 of the Act which reads as follows saves the right to appeal to the Supreme Court, from the bar against second appeals.

50. Appealable orders : 1) An appeal shall lie from the order refusing to--
(a) refer the parties to arbitration under section 45;
(b) enforce a foreign award under section 48,
to the Court authorized by law to hear appeals from such order.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

• The SC has, under Article 136, the power to grant leave to appeal in suitable cases. This power, according to the court, but had to be used sparingly.

• An appeal by special leave to Supreme Court cannot therefore be considered as an appeal as of right or as an appeal in pursuance of a right to appeal to the Supreme Court.

• An appeal cannot lie from the court of first appeal to the Supreme Court (under Article 136) as mentioned in Section 50 as efficacious alternative remedy of revision to the High Court is available under Section 115 of the Code of Civil Procedure.

Section 115 provides:
115. Revision—
(1) The High Court may call for the record of an case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit :
Provided that the High Court shall no, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where—
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation.—In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.

• ·In Punjab Agro Industries Corporation Ltd. v Kewal Singh Dhillon – 2008 (11) SCALE 616, it was held by the Supreme Court that Article 136 is not intended to permit direct access to this Court where other equally efficacious remedy is available and the question involved is not of any public importance; and that this Court will not ordinarily exercise its jurisdiction under Article 136, unless the appellant has exhausted all other remedies open to him.

• Once leave for appeal is granted, the court continues to have discretionary power, including the power to “refuse to go into merits, or even if it goes into merits, to merely declare the law and refuse to interfere if interests of justice and/or facts of the case do not call for interference”. The extent of such discretionary power extends to “even revoke the leave already granted.”

• In spite of the fact that the matter has been pending before this Court for more than two years and relegation to alternative remedy will further delay the consideration of the issue. Supreme Court has been consistently following the practice of not entertaining appeals directly from the orders of district courts or court subordinate thereto, if an alternative remedy by way of appeal or revision was available before the High Court.

• The Court found no special and exceptional circumstance that warrants direct interference with an order of a district court bypassing the remedy available before the High Court and hence dismissed the appeal.

Review Article

EC’s order on the hate speech issue – A summary

Part II of Legal implications of hate speech in the milieu of elections. See Part I here.

EC suo motu took note of the reported incidences of hate speech and issued notice to Varun to explain his actions of violation of clause 1 and 3 of the Item No.1, which specifies General Conduct, of the MCC. The notice also required Varun to explain the charges of (1) attempting to promote enmity and hatred among different class of citizens on the ground of religion, (2) outraging the religious feeling of a particular community, and (3) promoting hatred and ill-will between two classes of citizens provoking a section of the citizens to indulge in violence. Notice was also issued to BJP to explain its actions.

The party in its reply took a safe stance of disassociating itself from the actions of Varun, though later actions of the party are contrary. But then we are not surprised about the actions of the BJP as we are so familiar with the diabolic actions of political parties and their unprincipled stands for gains, aren’t we?

Varun vied the contents of the notice and explained his position denying all the allegations. He contended that the CDs were doctored and what happened is a trial by media. As per the EC, Varun neither accepted nor rejected the contents of the speech, which became a crucial basis of the order of the Commission.

The Commission could not find any merit in the explanation of Varun. EC came down hard on the content of the speech and observed that expressions of this nature are pernicious as also contemptuous of the Constitutional ideals of secularism and democracy. The Commission co-opted the views of the SC of India in cases where such rhetoric has been the issue. (Ziauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra AIR 1975 SC, Abdul Hussain Mir Vs. Shamsul Huda AIR 1975 SC 1612 and Ramesh Yeshwant Prabhoo Vs.Prabhakar Kashinath Kunte and Others (1996) 1 SCC 130)

Being conscious of the limitations of the powers and the present position of law the Commission advised the party not to field Varun as a candidate. EC condemned the actions of Varun and censured him. Commission had already taken initiative to register criminal cases under IPC and R.P Act. The Commission directed the UP government to investigate and proceed in these matters with swiftness and alacrity. In the light of explanation tendered by BJP the Commission expressed its expectation that the party will not nominate Varun as its candidate.

(To be continued)

Election Law

Right to get registered as a voter

The Hindu of today carry a news - First time and legal - about the National Law School of India University, Bangalore (NLSIU) students successfully registering themselves as voters. Kudos to all who worked for it.

Thought, this could be an occasion to educate ourselves about the legal processes of registering as a voter. The right to be registered as a voter flows from Article 326 of the Constitution of India. This right is extended to every citizen of India who is not less than 18 years of age and not otherwise disqualified by any law made by the legislatures in this aspect. The disqualifications are non- residence, unsoundness of mind, for committing crime,corrupt or illegal practices.

There exists plenty of literature, both academic and case laws, which has debated the nature of the right to vote. The three competing categories to pigeon hole this right are; fundamental right, constitutional right or statutory right. The judiciary in India seems to have put an end to the debate by holding that the right to vote is a creature of the statute and hence a statutory right. Despite this the other line of argument is alive that democracy is basic feature of the Constitution and the right to democratic governance make the right to vote an inevitable fundamental right. The constitutional prescription of 'adult suffrage' in Art. 326 makes it at least a constitutional right if not a fundamental right for some ohters.

The right to register as a voter, qualifications and disqualifications thereof and the process of registering oneself as a voter is scattered in two different but related laws, besides the Constitution . The Representation of People Act, 1950 (R.P Act)and The Registration of Electoral Rules, 1960 are those relevant laws. Part III of the R.P Act contains the provisions about the qualifications and disqualifications to register oneself as a voter. Section 19 of the R.P Act prescribes the conditions for registration. Age and residency are the two criteria to be considered.

The aspect of 'ordinary residency' is the one which has always been contested, especially in the case of students who live for a long duration in hostels or otherwise in places other than their permanent residence. Section 20 of the Act explains ordinary residence and seems to suggest that it is your stay in a place for a considerable period that matters. This section provides for the scope of registration in specific instances of persons in service, elected representatives etc. What one need to be reminded of here is that a person is prohibited to have his/her name registered in more than one constituency or more than once in a constituency. (Sections 17 and 18)

Part I of the Registration of Electors Rules 1960 (Rules), details the process of getting oneself registered as a voter. A person desirous of registering oneself as voter is to submit an application in Form 6 (attached to the Rules) to the designated Electoral Registration Officer. In case the person is already registered as a voter elsewhere that can be deleted therefrom for which the application is to be submitted in Form No. 8A. The decision of the Electoral Registration Officer is appealable ( Rule 27) to the Chief Electoral Officer within 15 days from the date of the order appealed against.

It is heartening to know that the students of NLSIU have taken the initiative to get themselves registered as voters. Casting vote is an important element of active participation in the political process of the country. This becomes special against the background of the fear expressed by many about the apathy of the young educated towards politics and political processes.

Review Article

Legal implications of hate speech in the milieu of elections – Part I

A secular nation can ill afford elections fought on communal lines. The constitution and statute makers were well aware of it and have made provisions in law to curb the menace. Recently, Varun Gandhi is in light for violation of the same. The order of the EC may be seen here.

This piece is an attempt to map the legal implications of hate speech in the locale of elections and to raise certain concerns.

The archangel, the Constitution of India, declares India to be a secular nation. Two streams of law deal with this issue: Indian Penal Code and the Representation of People Act, 1951(R. P Act). Beside these, Model Code of Conduct (MCC) is also relevant while mapping the legal framework. A number of judicial decisions have interpreted and applied these laws, and therefore these too become relevant for the discussion.

R.P Act

The R.P Act classifies condemnable acts during elections into two categories; corrupt practices and electoral offences. Appeal in the name of religion, caste, community or language is a corrupt practice as per section 123 (3) and promotion or attempt to promote enmity and hatred amongst different groups of people is both a corrupt practice [S. 123 (3A)] and an electoral offence [S. 125]. Corrupt practices attracts only the actions of the candidate whereas electoral offences could be committed by ‘any one’.

Finding of commission of corrupt practices will result in disqualification for being a member of the House. Electoral offence will attract penal consequence to the extent of imprisonment for 3 years or fine or both. Section 8 (1) (i) mandate for disqualification for a period of 6 years if punished with only fine or the period of imprisonment plus 6 years, in case punishment involves incarceration.

Indian Penal Code.

Though IPC has a specific chapter on offences relating to elections (chapter IX A), hate speech do not figure in there. The offence and punishment for inflammatory speeches are in Sections 153A, 295A and 505 (2). The punishment ranges from 2 years to 3 years imprisonment and/or with fine.

Incidentally, if the person is found guilty under sections 153 A and 505 (2), minimum of 6 years disqualification will be the result (section 8 (1) (i) and (ii)). If the verdict is for imprisonment for two years under section 295, the disqualification will run for 6 years from release according to section 8 (3) of R.P Act.

Consequences of disqualification

Disqualification have two consequences as per section 7 (b) of the R. P Act. One; being ineligible to contest the election and the other; being ineligible to continue as a member, if already elected. The disqualification of an elected member on the ground of corrupt practice is governed by section 8A of the R.P Act.

Model Code of Conduct

The weak limb in the legal stratum is the MCC. The MCC is not a legislation but is a guideline by the Election Commission (EC). This code draws its legitimacy from Article 324 of the constitution, which vests the power of superintendence, direction and power of conduct of elections with the EC. The fact that MCC bears the endorsement of almost all major political parties is a relevant aspect, though weak in legal tenability.

The EC has the track record of cancelling elections for violation of MCC. Cancellation of bye-election of Kalka constituency of Haryana State Legislature in 1993, Ranipet constituency bye- election to Tamil Nadu State Assembly in 1993. . There are also instances of Chief Ministers reimbursing aircraft charges based on the direction of EC due to violation of MCC (see, S.K Mendiratta, How India Votes: Election Laws, Practice and Procedure (2nd ed.), LexisNexis Butterworths, 2006, 633-643). There are a number of orders passed by the EC for contravention of MCC, the order mentioned earlier against Feroz Varun Gandhi being the latest.

The general conduct guideline in MCC categorically prohibits insinuatory speeches in segregatory planks. The guideline is applicable both to the parties and the candidates.

The MCC becomes operational from the date of announcement of election schedule, (UOI v. Harbans Singh Jalal. Date of Judgment 06-04-01) which in the 2009 general elections is 2/3/2009.

(To be continued)

Recent Judgments

Punishment for civil contempt have a public policy element. Apology cannot be a defence

C. Elumalai & Ors. v. A.G.L. Irudayaraj & Anr. CONTEMPT PETITION NO.118 OF 2007 IN SPECIAL LEAVE PETITION (C) NO.19924 OF 2006. Date of Judgment 20-03-09

The court held that timing of apology and its nature are relevant considerations in a comtempt action. An apology, unconditional it may be, at a stage when the contemnor is sure that the court is about to punish should fetch no leniency. Apology cannot be a weapon of defence. (L.D. Jaikwal v. State of U.P. 1984 (3) SCC 405 and T.V. Godavarman Thirumalpad v. Ashok Khot 2006(5) SCC 1)

To prove contempt, a wilful disobedience need to be established. Wilful disobedience is understood as "an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law." The ingredients are evil intent, bad motive and the action need to be judged in the factual context. ( Ashok Paper Kamgar Union v. Dharam Godha (2003) 11 SCC 1, Kapildeo Prasad Sah v. State of Bihar 1999 (7) SCC 569)

Punishing for contempt has a public policy element that the judgments of the court shall not remain mere verbose expressions. The court found contempt in this case. Directed payment of Rs. 2,00,000/- by each violators as exemplary cost which shall add to the corpus of National Legal Service Authority, failing which the contemnors will secure imprisonment three months.

Elaborate discussion on the admissiblity of dying declaration

Jaishree Anant Khandekar v. State of Maharashtra. CRIMINAL APPEAL NO. 1094 OF 2006. Date of Judgment 23-03-09

Reflections

Irretrievable breakdown of marriage as a ground for divorce

Recently the SC held that irretrievable breakdown of marriage is not a ground for divorce under the Hindu marriage and Act and holding so would be legislating. See here. News reports states that the Law Commission of India has suo motu filed a recommendation to add this as a ground taking into the consideration the changed social realities.

Incidentally, this issue has been alive for a long period in the lives of different law commissions.

In 1978 the LCI had filed its report tilted “The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce. The Commission had recommended amendment to the Act to include this as ground for divorce. (See, pages 40-43 of the report, available at http://lawcommissionofindia.nic.in/51-100/Report71.pdf)

A later discussion can be found the 90th report of the LCI in the background of suggesting changes in Section 10 of the Indian Divorce Act, 1869. (see, pages 1-2, 5 of the report, available at http://lawcommissionofindia.nic.in/51-100/Report90.pdf)

Law has to be responsive to the changing social contexts to remain relevant to the contemporary society. The judiciary in this case has taken a right step in stating that it is the legislature to change the law and not them. It could be argued that, as the courts have always been, why can’t they be dynamic and interpret the law in such a manner to give relief to the deserved. There could be two considerations for the court while taking the position in this case: one the adage that “judges only expound the law, do not make them”, the other could be judiciary’s reluctance to lay hands on personal laws and the realisation that it shall rest with the domain of people’s representatives. Now, it for the legislature to respond.

This instance raises the debate about the role of the judges. ‘Should they be faithful servants of legislature or a co-operative partner in the establishment of policies?’

Recent Judgments

Bridging Natural Justice to Legal Justice

Uma Nath Pandey and Ors. v. State of U.P. and Anr. CRIMINAL APPEAL NO. 471 OF 2009. Date of Judgment 16-03-09

Justice Arijith Pasayath qualifies natural justice as common sense justice in this judgment and observes that natural justice and legal justice cannot remain as separate water tight compartments. Lack of adequate notice was the contention in this case and the court finds violation of the principles of natural justice. The matter is remitted back to the HC.

Justice Pasayath indulges in a discussion about the principles of natural justice in the judgement; tracing from magna carta and then anchoring it on judicial decisions. He raises the issue of "useless formality theory" and embarks upon a surrogate discussion about it in paragraph no .18. He too, like his predecessor whom he has quoted, leaves it open.

Requisitioning of property should not be acquisition through backdoor

Kerala State Cashew DevelopmentCorporation v. Shahal Hassan Mussaliar & Anr. CIVIL APPEAL NO.8247 OF 2001. Date of Judgment 16-03-09

Kerala Government's action of requisitioning the Cashew Factories of the state by the Kerala Cashew Factories (Requisitioning) Act, 1979 and perpetuating the same by a later amendment Act in 1985, is challenged in this case. The initial Act was for requisitioning the factories for a period of 5 years. The amendment Act authorised the state government to extend the lease indefinitely, by instalment of five years.

The court relied on H.D. Vora v. State of Maharashtra (AIR 1984 SC 866) and found that there is a difference between acquisition and requisition. The state Act needs to tested for its constitutionality as per the court. Finds colourable exercise of power by the state, fraud on the power and back door appropriation of property, in tune with the precedents. The court refused to interfere with the judgment of the HC and dismissed the appeal.

The Hindu Book Reviews

• LAW OF RESERVATION AND ANTI-DISCRIMINATION — With Special Emphasis on Education and Employment, Anirudh Krishnan and Harini Sudersan, LexisNexis Butterworths
• COURTING DESTINY, Shanti G. Bhushan; Penguin Books India Pvt. Ltd
• POLITICS OF INCLUSION — Castes, Minorities, and Affirmative Action, Zoya Hasan, Oxford University Press

News

• “Law can’t turn a blind eye to breakdown of marriage” . See here for the post on the judgment of the SC
• Supreme Court to prepare national mediation plan
• Video-tracking of candidates with criminal background
• EC disqualifies 3,423 candidates for non-filing of expenses
• Human rights violation max in UP, Delhi
• It’s your vote

Recent Judgments

Whether a society registered under the Societies Registration Act is a `State' within the meaning of Article 12

State of U.P. & Anr. v. Radhey Shyam Rai. CIVIL APPEAL NO. 1572 OF 2009. Date of Judgment 06-03-09

Held to be a state and amenable to writ. This judgment written by S.B. Sinha, comprehends the developments in the field of interpretation of the term ‘other authorities in Art. 12 of the Constitution of India.

Court observes as follows:
“Law in this behalf has developed a lot. With the changing societal conditions, a large number of bodies exercising public functions have been brought within the purview of the definition of `State'. We need not dilate on the development of law in this regard in view of the decisions rendered by this Court beginning from Rajasthan State Electricity Board v. Mohan Lal [(1967) 3 SCR 377], Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and other decisions including a Seven - Judge Bench decision of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(2002) 5 SCC 111]”.

… And the case goes back to HC after its life of more than 10 years

Nawab Shaqafath Ali Khan & Ors. v. Nawab Imdad Jah Bahadur & Ors. CIVIL APPEAL NOs. 846-847 OF 2001. Date of Judgment 05-03-09

When it is a case that involves the inheritance of the properties of the Nizam of Hyderabad and with the complicated questions involved, may be, the case is still in its cradle.

Be careful when applying precedent

State of A.P. v. M. Radha Krishna Murthy. CRIMINAL APPEAL NO. 386 OF 2002. date of Judgment 06-03-09

The judicial decision should not be interpreted like statues. A judicial utterance is made in the setting of facts of the particular case.

While deciding a case based on an earlier precedent, care should be taken to “avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive … Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." (Lord Denning).

In the instant case the HC wrongly applied a precedent which acquitted an accused from corruption charges because, a part of the case was not proved therefore the whole case stood failed. The present case is that of demand of bribe which was paid of in two instalments and payment of the second instalment was proved but not the first.

It is held that ‘circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.’

Recent Judgments

Irretrievable breakdown of marriage is not a ground for divorce: to hold so would be to legislate.

Vishnu Dutt Sharma v. Manju Sharma. CIVIL APPEAL NO. 1330 OF 2009. Date of Judgment 27-02-09

Section 13 of the Hindu Marriage Act, 1955 clearly lay out the grounds for divorce and irretrievable break down is not mentioned therein. To add such a ground would be legislation by the court, held SC.

“It is for the Parliament to enact or amend the law and not for the Courts.” Wish this sense prevails at all relevant future circumstances

Gift under Mohammedan Law

ABDUL RAHIM & ORS. v. SK. ABDUL ZABAR & ORS. CIVIL APPEAL NO. 1573 OF 2009. Date of Judgment 06-03-09

The conditions to make a valid and complete gift under the Mohammadan Law are as under:

(a) The donor should be sane and major and must be the
owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of
hiba.
(c) If the thing gifted is divisible, it should be separated and
made distinct.
(d) The thing gifted should be such property to benefit from
which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things
not gifted; i.e. should be free from things which have not
been gifted.
(f) The thing gifted should come in the possession of the
donee himself, or of his representative, guardian or
executor.

News

• The great dissenter- Soli Sorabjee on Justice Khanna
• It’s the system - On RTI
• HC stays CIC order as Govt says can’t reveal judge details

Recent Judgments

Award of (Shylockian) interest under Section 34 of CPC

C.K. Sasankan v. The Dhanalakshmi Bank Ltd. CIVIL APPEAL No. 1317 OF 2009. Date of Judgment 27-02-09

Debtor dead and gone, but the legal heirs are visited with the judgment of court to pay off the debt with an interest at rate of ‘25% from the date of filing of the suit till the date of judgment and at 19.4%, thereafter till its realisation.’ Is it court or shylock in business, one may wonder.

Section 34 CPC mandates the court to award interest at reasonable rate. The Debt Recovery Tribunal found the above interest rate to be reasonable. The SC reversed the order reminding the lower court that there are certain principles to be followed while awarding interest, though section34 have the expression ‘may’.

1. Interest can be awarded in terms of an agreement or statutory provisions and it can also be awarded by reason of usage or trade having the force of law or on equitable considerations but the same cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds therefore, for which a written demand is mandatory.

2. In absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate and such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction.

3. In ascertaining the rate of interest the courts of law can take judicial notice of inflation and rely on bank rate of interest.

The SC slashed down the rate of interest to 9%.

SC on sentencing policy in the background of death sentence
State of U.P. v. Sattan @ Satyendra & Ors. CRIMINAL APPEAL NOS. 314-315 OF 2001. Date of Judgment 27-02-09

Criminal law has a role to play in securing the life and property of the people. The court has to mould its sentence to meet the challenges and conflicting ideologies existing in the society. Awarding appropriate sentence is crucial. A lopsided sentencing policy can lead to a lawless society.

Court has the option of corrective or deterrence approaches and it need to balance in the facts of the case, to be “a decisive reflection of social consciousness of society" as said by Freidman in ‘Law in Changing Society.’ The sentencing policy also has to be tempered with mercy, when it is required.

The considerations could be on:

1. the facts and given circumstances in each case

2. the nature of the crime

3. the manner in which it was planned and committed

4. the motive for commission of the crime

5. the conduct of the accused

6. the nature of weapons used

7. all other attending circumstances

8. proportion between crime and punishment

“Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.”

The object of sentence is to protect the society and deter the criminal. While sentencing the court should take into consideration its impact on social order. “Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.”

While sentencing, the court needs to bear in mind not only the rights of the accused but the rights of the victims also. Sentence is a response to the society’s demand for justice.

The court relied on Bachan Singh v. State of Punjab 1980 (2) SCC 684, Machhi Singh v. State of Punjab 1983 (3) SCC 470 and Devender Pal Singh v. State of NCT of Delhi 2002 (5) SCC 234 to come to the conclusion that “the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”

Circumstantial Evidence – principles to be followed

Vithal Eknath Adlinge v. State of Maharashtra. CRIMINAL APPEAL NO. 662 OF 2007. Date of Judgment 27-02-09

Recent Judgments

Construction of Will
Bhagwan Krishan Gupta v. Prabha Gupta & Ors. CIVIL APPEAL NO.1186 2009. Date of Judgment 25-02-09

The case discusses two aspects: interpretation of Will and the effect of ‘family settlement’ on a self acquired property as well as its relevance in the construction of Will.

The court held that though family settlement in stricto sensu have no implication with respect to self acquired property, given the potential of such settlement to bring harmony in family, it should not be absolutely dismissed. The court gave weight to family settlement made between the brothers as surrounding circumstance and thereby contributing to the construction of the Will.
The doctrine of ‘arm chair rule of construction’ was used to interpret the Will. The principle relating to interpretation of Will demands that it should be read as a whole and the surrounding circumstances should be given effect to ascertain the intention of the testator. This is done by placing the court in the arm chair of the testator.

Principle of appreciation of evidence by relative/interested witness
Joginder Singh v. State of Punjab. CRIMINAL APPEAL NO. 406 OF 2009. Date of Judgment 27-02-09

Eye witness being a family member does not per se disqualify a testimony. The allegation of interestedness has to be established. A statement otherwise cogent and credible cannot be dismissed just because the witness is related to the victim.
“Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.”

Reinstatement in employment and award of back wages
M/s P.V.K. Distillery Ltd. v. Mahendra Ram. CIVIL APPEAL NO.1349 OF 2009. Date of Judgement 02-03-09

The respondent successfully contended in the Labour Court that he was illegally terminated (on 19-01-85) and got an order of reinstatement with continuity of service with an entitlement of full employment benefits and back wages.

The appellant moved the HC and in the meanwhile the establishment was closed for a long duration and was eventually declared as a sick unit. The appeal continued and the HC confirmed the order and hence this appeal by SLP. The respondent did not appear despite substituted service.

The question taken up for consideration was “whether the Labour Court was justified in awarding full back wages, while directing the employer to re-instate the workman in service?”

Court reasoned that

1. Awarding of back wages is a discretionary remedy and there is no straight jacket formula that reinstatement under Industrial Dispute Act by default contain award of back wages

2. Back wages has to be determined by the Labour Court taking into consideration facts and circumstances of each case

3. The person is not entitled to get something only because it would be lawful to do so
4. A pragmatic view of the matter is being taken by courts realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively

5. It is now also well-settled that, despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back wages should not be granted automatically only because it would be lawful to do so.

6. Grant of relief would depend on the fact situation in each case. It will depend upon several factors;
a. whether the recruitment was effected in terms of the statutory provisions operating in the field, if any
b. the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement

7. Earlier courts have not in absolute terms laid down that the right to claim back wages flow from an order of reinstatement

8. It may be natural to hold that removal of order of termination should lead to payment of back wages. But there may be circumstances that make such a conclusion inequitable like:
a. Industry being closed down
b. Industry being in financial difficulties
c. Employee already in another or better employment

9. It is impossible to lay down an absolute law as to in which all circumstances a reinstatement should follow back wages. For which, several factors need to be taken into consideration

Taking into consideration the factual circumstances that the service of the respondent was terminated since 1985 and the case is still pending for no fault of his and that the industry was closed for a long while and later declared as sick, the court found it equitable to award 50% of the total back wages.

It is interesting to note that the court required the appellant to deposit the amount with the concerned Labour Court within 6 weeks from the date of judgment. The Labour Court is directed to deposit the amount in a natioanlised bank and keep the amount for two years to be claimed by the respondent. Failing which the amount is directed to be handed over to the District legal Service Authority

After Taste

The case took 28 years to reach a final settlement (hopefully it will end here). It is not surprising that the respondent could not enter appearance. It is too much to expect a labourer that too out of job from 1985, to reach the SC and engage a lawyer.

The court may ‘feel good’ that it has done equitable justice by taking into consideration different aspects involved in the case and deciding the way it did. But how does the court expect the respondent to know that the amount is deposited in the bank? The state with its whole machinery and an appellant who could reach up till the SC despite its severe financial constraints could have given the duty to trace the respondent or his legal heirs. That would have been the real moulding of remedy and doing complete justice which is expected of a court of justice.

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