Home
About
Jobs
Events
Courses
Exams
Blog
Recruiter
Pricing

Sign In

Applicant Recruiter/Advertiser

Categories

Legal Blog

Publish with us

Filter Clear

Apr 24, 2024

Vishaka & Ors. v. State of Rajasthan

Introduction Bhanwari Devi, a social worker in a village in Rajasthan, worked under a state government program aimed at preventing child marriage. Despite her efforts, she failed to stop the marriage of an infant girl belonging to the Gujjar community. As a consequence, Bhanwari Devi faced social punishment and boycott. In September 1992, she was gang-raped by Ramkaran Gujjar and his associates in front of her husband. Despite reporting the incident, she faced further humiliation at the hands of authorities, including denial of medical assistance and taunting at the police station.The accused were acquitted by the Trial Court, with the High Court ruling it as a case of revengeful gang rape. Issues: Whether guidelines for preventing sexual harassment at the workplace are mandatory. Judgment: The Supreme Court, represented by Chief Justice J.S. Verma along with Justices Sujata Manihar and B.N. Kirpal, observed that fundamental rights under Articles 14, 19(1)(g), and 21 of the Indian Constitution ensure a safe working environment free from sexual harassment. The Court emphasized the fundamental right of women to be free from sexual harassment at the workplace and provided guidelines for prevention and redressal of such harassment. These guidelines aimed to ensure gender equality and prevent discrimination against women in the workplace. The Court also expanded the definition of sexual harassment to include various forms of unwelcome behavior, such as physical touch, showing pornography, or making sexual comments. Critical Analysis The Supreme Court's decision in Vishaka & Ors. v. State of Rajasthan established a comprehensive definition of sexual harassment and laid down guidelines for its prevention and redressal. Sexual harassment not only violates the dignity and rights of women but also affects their mental and physical well-being. The decision highlights the responsibility of employers, whether in public or private institutions, to take effective measures to prevent sexual harassment and impose penalties on perpetrators. It emphasizes the importance of promoting gender equality and ensuring a safe and respectful workplace environment for all employees. Conclusion: Sexual harassment at the workplace is a pervasive issue in India that requires urgent attention and strict legal measures. Failure to address this issue not only undermines the dignity of women but also hampers their participation in the workforce and economic development. The government must enact and enforce stringent laws to prevent sexual harassment and promote gender equality in the workplace. Employers should adopt proactive measures to prevent such incidents and protect the rights and dignity of women employees.

Pooja

Apr 10, 2024

Biman Krishna Bose vs. United India Insurance Co.

Introduction Biman Krishna Bose, the appellant, held a health insurance policy with United India Insurance Co., the respondent. In [Year], Biman Krishna Bose suffered from a medical condition and filed a claim with the insurance company for reimbursement of his medical expenses. However, United India Insurance Co. repudiated Biman Krishna Bose's claim on the grounds of non-disclosure of his medical history of hypertension at the time of purchasing the insurance policy. The insurance company argued that hypertension is a material disease that significantly increases the risk of various medical conditions, including those that may necessitate insurance claims. Biman Krishna Bose contested the repudiation of his claim before the lower courts, arguing that hypertension should not be considered a material disease fatal in itself, and therefore, the insurance claim should not be denied solely on the grounds of non-disclosure of hypertension. Parties Appellant:Biman Krishna Bose Respondent: United India Insurance Co. Issues Whether hypertension constitutes a material disease fatal in itself, justifying the repudiation of an insurance claim based on non-disclosure. Whether the non-disclosure of hypertension at the time of purchasing the insurance policy is sufficient grounds for the insurance company to deny Biman Krishna Bose's claim. Arguments Appellant's Arguments: Hypertension is a common medical condition that affects millions of individuals worldwide. It is not considered fatal in itself. The insurance policy did not explicitly require the disclosure of hypertension as a material fact. Biman Krishna Bose did not intentionally conceal his medical history; rather, he was unaware of the necessity to disclose hypertension as a material condition. Denying the insurance claim solely on the grounds of non-disclosure of hypertension would be unjust and against the principles of equity and fairness. Respondent's Arguments Hypertension is a significant risk factor for various cardiovascular diseases, including heart attacks and strokes The insurance policy implicitly requires the disclosure of all material medical conditions, including hypertension, that may affect the insured's health or increase the likelihood of filing claims. Biman Krishna Bose's failure to disclose his medical history of hypertension constitutes a breach of the duty of utmost good faith inherent in insurance contracts. Denying the insurance claim is necessary to maintain the integrity of the insurance contract and prevent moral hazard. Decision: The Supreme Court carefully considered the arguments presented by both parties and reviewed the relevant legal precedents. After thorough deliberation, the Supreme Court delivered its judgment. The Supreme Court held that hypertension, in and of itself, cannot be considered a material disease fatal in itself. The court emphasized that while hypertension may increase the risk of certain medical conditions, it does not directly lead to fatality. Therefore, the non-disclosure of hypertension alone cannot justify the repudiation of Biman Krishna Bose's insurance claim. The court further stated that insurance contracts should be interpreted in a manner that upholds the principles of fairness and equity, ensuring that policyholders are not unfairly penalized for non-disclosure of medical conditions that do not pose an immediate threat to life. Accordingly, the Supreme Court ruled in favor of Biman Krishna Bose, holding that the insurance claim cannot be repudiated solely on the grounds of non-disclosure of hypertension. Conclusion: The case of Biman Krishna Bose vs. United India Insurance Co. establishes a significant legal precedent regarding the interpretation of insurance contracts in cases involving non-disclosure of medical conditions. The judgment emphasizes the importance of distinguishing between material diseases fatal in themselves and non-material diseases when assessing the validity of insurance claims. This decision provides clarity and guidance to insurance companies and policyholders alike, ensuring fairness and justice in insurance claim disputes.

Pooja

Mar 06, 2024

M. Nagaraj and Others v. Union of India 2007

Introduction: The M. Nagaraj and Others v. Union of India case, heard in 2006-2007, brought to the forefront critical questions regarding the constitutional validity of the 77th and 85th Constitutional Amendments. These amendments introduced Article 16(4-A) and Article 16(4-B) to the Indian Constitution, addressing reservations in promotions for Scheduled Castes (SC) and Scheduled Tribes (ST) in public employment. This case not only delved into the nuances of these amendments but also grappled with the larger question of striking a balance between the principles of social justice and the efficiency of public administration. Background and Constitutional Amendments: The constitutional amendments under scrutiny were pivotal in expanding the scope of reservation policies. Article 16(4-A) allowed the state to make provisions for reservations in matters of promotions for SCs and STs without requiring the mandatory collection of quantifiable data demonstrating their backwardness. Article 16(4-B) extended similar provisions for reservations in promotions for SCs and STs in the case of posts in the initial recruitment stage. Issues Before the Court: The primary contention raised by the petitioners revolved around the absence of a mandatory requirement for quantifiable data, a departure from the principles established in the landmark case Indra Sawhney v. Union of India (1992). The petitioners argued that this lack of a data-backed mechanism could potentially lead to arbitrary and excessive reservations, affecting the very essence of the constitutional mandate for social justice. Creamy Layer Concept and Quantifiable Data Requirement: The court, in its deliberation, emphasised the need for a careful balance between social justice and administrative efficiency. It introduced the concept of the 'creamy layer,' emphasising that reservations should not perpetually benefit only a particular section, but instead reach those genuinely in need within the marginalised communities. The court ruled that any state intending to implement reservations must provide compelling factors, including evidence of backwardness, limited participation, and overall administrative efficacy, in each specific case. This was deemed necessary to ensure that reservations were not arbitrary but founded on justifiable grounds. The court clarified that while Article 16(4-A) is enabling, providing states with the discretion to implement reservations, they must adhere to Article 335 and present quantifiable data demonstrating the under-representation of SCs and STs in the workforce. Balancing Social Justice and Administrative Efficiency: A crucial aspect of the case involved the delicate balance between the constitutional mandate for social justice through reservations and the imperative of maintaining an efficient and competent bureaucracy. The court acknowledged that while reservations were a crucial tool for uplifting marginalised communities, they should not compromise the overall efficiency of public administration. The judgement underscored the government's discretion to implement reservations while simultaneously emphasising the need for caution to prevent excesses. The court directed states to exclude the creamy layer, ensuring that the benefits of reservations reached those who genuinely needed them and preventing the perpetuation of privilege within the marginalised communities. Judgment and Far-reaching Consequences: In its judgement, the Supreme Court upheld the constitutional validity of the amendments, subject to conditions. The introduction of the quantifiable data requirement aimed to ensure that reservations were based on a solid foundation and were not arbitrary or excessive. This decision had far-reaching consequences, influencing the implementation of reservation policies in India. It established a nuanced understanding of the delicate equilibrium between affirmative action for social justice and the necessity for an efficient public administration. The judgement, while expanding the scope of reservations, imposed conditions to prevent misuse and underscored the principle that reservations should be a means to foster genuine social upliftment. Conclusion: The M. Nagaraj case represents a significant chapter in the evolution of reservation policies in India. It highlighted the need for a data-backed and justifiable approach to reservations, ensuring that they remain a tool for social justice without compromising the efficiency of public administration. The introduction of the creamy layer concept and the requirement for quantifiable data set the stage for a more nuanced and balanced application of reservation policies, acknowledging the complexities inherent in addressing historical injustices while maintaining the standards of administrative efficacy.

Pooja

Feb 14, 2024

Case Law: Bandhua Mukti Morcha v Union of India & Ors.

In Indian legal history, the case of Bandhua Mukti Morcha v. Union of India & Ors. (1984) stands as a landmark decision that fundamentally altered the landscape of bonded labour in the country. This landmark ruling, delivered by a three-judge bench of the Supreme Court of India, brought to light the plight of bonded labourers, who were trapped in a cycle of debt and exploitation, and paved the way for their liberation and rehabilitation. Background and Facts of the Case In 1984, the Bandhua Mukti Morcha, an NGO dedicated to eradicating bonded labour, brought a significant public interest litigation (PIL) before the Supreme Court of India. In 1980, the NGO conducted a survey in the Faridabad district of Haryana, where they discovered several stone quarries employing bonded labourers. The case shed light on the pervasive issue of bonded labour in various industries, where individuals were subjected to exploitative conditions, often driven by indebtedness. These labourers were forced to work under inhumane conditions, receiving meagre wages and living in squalid accommodations. The core legal questions revolved around the violation of fundamental rights, specifically the right against exploitation under Article 23 and the right to life and personal liberty under Article 21 of the Indian Constitution. Deeply disturbed by these findings, the NGO filed a writ petition in the Supreme Court, seeking directions to the Union and State governments to abolish bonded labour and rehabilitate the victims. The petition highlighted the rampant exploitation of bonded labourers, who were denied their fundamental rights enshrined in the Indian Constitution. Arguments and Issues Raised The petitioners contended that the existence of bonded labour was a violation of the Constitution's guarantee of fundamental rights, particularly the right to life, the right against forced labour, and the right to equality. They argued that the government had failed to effectively implement the Bonded Labour System (Abolition) Act, 1976, which aimed to eradicate bonded labour. The respondents, the Union and State governments, argued that bonded labour was a complex issue with deep-rooted social and economic causes, and that eradicating it would require a comprehensive approach involving various stakeholders. They also claimed that they had taken steps to implement the Bonded Labour Act and were committed to ending bonded labour. The Supreme Court's Judgement After careful consideration of the arguments presented, the Supreme Court delivered a landmark judgement in favour of the petitioners. The Court recognized the existence of bonded labour as a serious and pervasive problem in India and held that it was a violation of fundamental rights. The Court issued a series of directives to the Union and State governments, including: Immediate identification and release of all bonded labourers Effective implementation of the Bonded Labour Act and other relevant laws Rehabilitation of freed bonded labourers through comprehensive programs Establishment of vigilance committees to monitor the situation The Court further directed that the onus of proof should lie with the employer to disprove the existence of bonded labour, as it was often difficult for labourers to come forward due to fear of reprisals. Significance and Impact of the Ruling The Supreme Court's judgement in Bandhua Mukti Morcha v. Union of India & Ors. had a profound impact on the fight against bonded labour in India. It brought the issue to the forefront of public attention and galvanised the government to take concrete steps to eliminate this heinous practice. The ruling's emphasis on the government's responsibility to protect the fundamental rights of its citizens set a precedent for future cases involving human rights violations. It also empowered NGOs and activists to continue their work on behalf of bonded labourers and other marginalised groups. While the eradication of bonded labour remains a challenge in India, the Bandhua Mukti Morcha case stands as a beacon of hope for the millions of people trapped in this system of exploitation. The Court's ruling has served as a catalyst for positive change and continues to inspire efforts to promote social justice and human rights in India.

Tripti

Feb 07, 2024

National Legal Services Authority v. Union of India

Introduction The National Legal Services Authority v. Union of India (2014) marked a pivotal moment in the history of transgender rights in India when they filed a writ petition demanding better protection of trans peoples’ lives. This landmark judgement by the Supreme Court recognized transgender individuals as the "third gender," granting them fundamental rights under the Indian Constitution. This article delves into the key facts, impact, and future directions surrounding this case. Background In 2012 and 2013 two writ petitions were filed by National Legal Service Authority and Poojya Mata Nasib Kaur Ji Women Welfare Society. These organisations worked for the protection of rights of the Kinnar (Transgender) Community. Lazmi Narayan Tripathi, a member of the Trans community approached the court with the contention that rights guaranteed by Article 14 and 21 were being denied to the Hijra Community, creating discrimination. Issues of the case The key issue of the case was whether transgender individuals should be recognized as a third gender and given legal protection under the Indian Constitution? The court also decided over whether there is a breach of fundamental rights of transgender individuals. Article 14; Equity before Law Article 14 of the Indian Constitution guarantees equality before the law or equal protection of the laws within the territory of India. This means that all persons, regardless of their religion, race, caste, sex, place of birth, or any of them, are entitled to the same legal protection and treatment by the State. Article 21; Right to Life and Personal Liberty Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty. This means that no person shall be deprived of these rights except according to procedure established by law. Arguments and Issues raised The petitioner argued that the transgender community in India faces widespread discrimination and marginalisation in areas such as education, employment, healthcare, and housing due to lack of legal recognition and protection. They claimed that the binary gender classification system under the Indian Constitution does not accurately represent the diverse gender identities and expressions in India, leaving transgender individuals vulnerable to discrimination. Additionally, they alleged that the government has failed to take sufficient measures to address these issues, leading to a violation of the transgender community's fundamental rights, including the right to equality, dignity, and non-discrimination. The Respondents claimed that the Constitution already provides sufficient protections for all citizens, including transgender individuals. Recognizing a third gender could cause administrative complications and marginalise an already vulnerable group. Additionally, they argued that the government has taken measures to help the transgender community without needing specific legal recognition. The respondent also contended that it was unnecessary to create a separate gender category in official documents since transgender identities can be recognized within the existing male/female categories. Judgement April 15, 2014, the Supreme Court of India ruled in favour of the National Legal Services Authority (NALSA) in a landmark case that recognized the rights of transgender individuals in the country. This historic judgement acknowledged transgender people as a distinct gender group and granted them legal protection and recognition under the Indian Constitution. In its ruling, the Court held that transgender persons are entitled to the same fundamental rights as other citizens, including the right to self-identify their gender. The Court further emphasised that gender identity is an intrinsic aspect of one's identity that cannot be reduced to biological characteristics alone. To address the marginalisation and discrimination faced by the transgender community, the Court directed the Government to implement measures such as reserved seats in education and employment opportunities. This progressive verdict represented a significant milestone towards ensuring equal treatment and protection for transgender individuals in India. By recognizing their inherent dignity and worth, the Court's decision helped create a more inclusive society where diversity is valued and respected. Conclusion In India, the right to self-identification of gender is protected under the constitution as an essential aspect of dignity and personal autonomy. The Supreme Court's landmark ruling in NALSA v. Union of India recognizes the legal identity of transgender individuals and their right to self-identify, paving the way for greater inclusivity and equality in India.

Tripti

Dec 13, 2023

Google Found in Violation of Antitrust Laws in Epic v. Google

Case: Epic v. Google Introduction A federal jury has recently delivered a landmark decision in a case involving Google's alleged violation of antitrust laws in the operation of its Play mobile app store. The jury, comprised of nine individuals, deliberated for just over three hours before finding Google guilty. This case marks the culmination of a nearly three-year legal battle between the two parties, with significant implications for the future of mobile app development and distribution. This landmark case has major implications for the app store landscape and the broader digital economy. The outcome of this legal duel carries far-reaching implications, not just for app stores and video games, but for consumer choice, fair competition, and the future of the internet itself. Background Epic Games, the developer of the popular video game Fortnite, took Google to court in 2020, alleging that the tech giant's control over the Google Play Store constituted an illegal monopoly. The Accusation: A Monopoly in the Digital Marketplace. This store, pre-installed on billions of Android devices, serves as the gatekeeper of apps, dictating how developers can reach their audience. Epic points to two key practices as evidence of this monopoly – the mandatory 30% in-app purchase fee levied on all transactions and the requirement for developers to use Google's own billing system. These, Epic argues, stifle innovation, limit consumer choice, and ultimately harm both developers and users. The tech giant argues that its Play Store has been instrumental in Android's success, providing developers with a secure and accessible platform to reach millions of users. The 30?e, they claim, is necessary to cover the costs of maintaining and securing the Play Store, ensuring a safe and reliable experience for both developers and users. Google further contends that Epic's case is fueled by self-interest rather than genuine concern for competition. According to information provided by Google through their official platform, the Google Play Store, app creators are subject to payment fees ranging between 15% and 30% for various transactions conducted through the digital marketplace. Specifically, these fees apply to both subscription-based apps as well as those offering in-app purchases (IAPs) obtained via the Play Store. Notably, Google claims that an impressive 99% of developers are eligible for a fee structure of no more than 15%, with certain exclusions applying to specific circumstances. The Jury's Verdict On December 11, 2023, the jury delivered its verdict, siding with Epic. The jury's findings were unanimous across all 11 questions presented, indicating a comprehensive rejection of Google's defence strategies. Specifically, the jury determined that Google's actions constituted a violation of Section 7 of the Clayton Act, which prohibits the maintenance of a monopoly through unfair or anticompetitive means. Furthermore, the jury concluded that Google's conduct caused harm to Epic Games, potentially paving the way for the imposition of remedial measures aimed at redressing this injury. While the specific penalties and remedies are yet to be determined, the jury's ruling has sent shockwaves through the tech industry and beyond. This verdict represents a major victory for Epic Games, which has been actively seeking to challenge the dominance of Google and Apple in the mobile app space since 2020. In light of the complexity involved in addressing these issues, Judge James Donato will not deliver his ruling until early 2024. Impact of the verdict By successfully arguing that Google's actions constitute a violation of antitrust laws, Epic Games may now be poised to reshape the regulatory landscape surrounding mobile app development and distribution. Notably, the jury's decision could empower other developers to explore alternative app stores and payment systems, ultimately reducing the control exercised by Google and Apple over the mobile app ecosystem. Google is expected to appeal the verdict, potentially leading to years of legal battles. Regulatory bodies are likely to take a closer look at the practices of major tech companies, with potential for stricter regulations and antitrust enforcement. The future of app stores and the entire digital ecosystem hangs in the balance. However, it remains to be seen what specific remedies will be implemented as a result of this verdict. Nevertheless, the prospect of increased competition within the mobile app industry holds significant promise for innovators and consumers alike, as it may lead to improved choices, reduced costs, and enhanced overall user experiences.

Tripti

Dec 06, 2023

Indira Gandhi v. Raj Narain and Anr.

Citation: (1975) 2 SCC 159 Case Name: Indira Gandhi vs Raj Narain The case of Indira Gandhi v. Raj Narain and Anr. is one of the most significant legal battles in the history of Indian democracy. Mrs Indra Gandhi, the then prime minister of India was accused of electoral malpractice when she got re-elected as the Prime minister by one Mr Raj Narain. Background The case is of 1971 general elections in India, where Indira Gandhi sought re-election as Prime Minister. Indira Gandhi, leader of the Indian National Congress, contested the general elections held in 1971, winning by securing 352 seats out of 518. Raj Narain, an opposition candidate from Rae Bareli, contested her victory and alleged several electoral malpractices included the accusation of use of government machinery for the election campaign, bribery, booth capturing, and misuse of state resources to influence voters. The case was filed in the Allahabad High Court, and Justice Jagmohanlal Sinha presided over the proceedings. Contention of the parties One of the central contentions was that Indira Gandhi had used government officials and resources for her election campaign, which was against electoral norms code as written under Representation of People’s Act, 1951. It was alleged by Raj Narain that bribery had been employed to influence voters, raising concerns about the fairness of the electoral process. Furthermore, Booth capturing, a practice where unauthorised individuals seize control of polling booths to manipulate the voting process, was alleged to have occurred during the election. During the trial, Indira Gandhi and her legal team vehemently denied the allegations, arguing that the election was conducted fairly and that there was no evidence to support the accusations. Verdict of the Allahabad High Court On June 12, 1975, Justice Jagmohanlal Sinha delivered a historic verdict, declaring Indira Gandhi's election from Rae Bareli void. The court held that she had indulged in corrupt electoral practices, marking the first instance of an Indian court nullifying the election of a sitting Prime Minister. As a consequence of the verdict, Indira Gandhi was not only unseated from her parliamentary seat but was also disqualified from holding any public office for six years. The ruling triggered a series of events that led to the imposition of a state of emergency in India, with civil liberties suspended and political opponents arrested. The legal battle did not end with the Allahabad High Court's verdict. Indira Gandhi appealed to the Supreme Court of India, seeking a reversal of the decision. This appeal came at a time when the Supreme Court was on a vacation and hence the vacation bench ordered an executional stay on the High Court's decision by Justice Krishna Iyer. Meanwhile, the then president Fakhruddin Ali Ahmed declared National Emergency on grounds of Political and internal disturbances and through the 39th amendment, Article 329A was introduced. Article 329A The Article put down Special provision as to “elections to Parliament in the case of Prime Minister and Speaker”. This stipulated that the election of the Prime Minister and Speaker could not be contested in any Indian court. As a result of this amendment, the Supreme Court's authority in the Indira Gandhi case was curtailed. Issues before the court In the Supreme Court the main issue presented was the Constitutional validity of Article 329A. Further the validity of “Representation of People’s (Amendment) Act, 1974”, “Election Laws (Amendment) Act, 1975” and the election of Indira Gandhi was itself questioned. Contention of the Parties The respondent claimed that Article 329A eliminates the jurisdictional authority of the courts. The constitutional setup in our country emphasises the separation of powers among the three branches of government. Therefore, it is unjust to the judiciary if its powers to adjudicate are nullified or diminished. They further contended that the principles of the rule of law and judicial review are integral to our constitution, and they cannot be harmed or altered, as established in fundamental rights cases. Supreme Court Judgement The Honourable Court, with a majority decision, ruled that the Amendment Acts are incompatible with the Basic Structure of the Indian Constitution. Consequently, these acts were invalidated on the basis that they infringe upon the court's jurisdiction and undermine the principle of judicial review. The Supreme Court, relying on the landmark ruling in the Kesavananda Bharati case, declared Article 329A, clause 4, as constitutionally invalid. The court was of the view that the Amendment's alteration was considered to violate the principle of “separation of powers”, as it placed an impartial legal function under the authority of Parliament. The Supreme Court, in a split 4-1 decision, upheld the lower court's verdict but modified the disqualification period to six years from the date of the decision. The lone dissenting judge, Justice Khanna, delivered a powerful dissenting opinion, asserting the importance of judicial independence and upholding constitutional values.

Tripti

Nov 29, 2023

Case Law: I C Golaknath and Ors v. State of Punjab (1967)

Case: Golaknath v. State Of Punjab Citation: 1967 AIR 1643, 1967 SCR (2) 762 Facts of the case In the year 1953, Henry and William Golaknath, two farmers from Jalandhar, Punjab who owned around 500 acres of agricultural land, were confronted by the Punjab government and ordered to forgo 470 acres of their land holdings as under the recent “Punjab Security and Land Tenures Act 1953”, they would only be allowed to hold 30 acres. This meant that the 470 acres of land will be declared surplus and taken over by the government of Punjab. This Act came after the 17th Constitutional Amendment which modified Article 31A and the 9th Schedule of the Constitution. The Golaknath brothers, dissatisfied with this limitation, decided to contest the Punjab government's actions in the Family court, leading to the elevation of the case to the Supreme Court in 1965. Punjab Security and Land Tenures Act 1953: The Punjab Security and Land Tenures Act of 1953 was a piece of legislation enacted in the Indian state of Punjab. The primary purpose of this act was to regulate the rights and obligations of landowners and tenants, particularly in the context of agricultural land. Post-Independence Agrarian Reforms: The period following India's independence saw a wave of agrarian reforms aimed at addressing issues of land ownership, tenancy, and ensuring social justice. Various states, including Punjab, implemented land reform measures to bring about equitable distribution of land and alleviate the agrarian crisis. Land Ceiling and Tenancy Regulations: The Punjab Security and Land Tenures Act was part of the broader legislative framework that sought to address concerns related to large landholdings, absentee landlordism, and the rights of tenants. Issues of the case The petitioner’s contested the new Act under Article 32, claiming that the Act denies them the constitutional right to hold property and practise any profession [provided under Article 19 of the Indian Constitution]. It was before the courts to decide whether the parliament, through any act, can limit the rights given under the Indian Constitution. The court considered the broader issue of whether the Parliament possessed the authority to amend/limit Fundamental Rights under Article 368 through introduction of a new Act(s). Furthermore, the court scrutinised the constitutional validity of the 17th Amendment. Contentions of the Petitioner The petitioners, Henry and William Golaknath, argued against granting Parliament the power to amend or alter the Constitution of India. They contended that the term "amend" should only pertain to making minor adjustments, not an outright replacement or overhaul of a Fundamental Right. Further, they argued that Article 13 prohibits any state or central government from making any amendments that limit the rights mentioned under part III of the Constitution. Article 13(3)(a):Article 13 of the Indian Constitution is a crucial provision that deals with the laws inconsistent with or in derogation of Fundamental Rights. It plays a pivotal role in safeguarding the fundamental rights granted to Indian citizens and ensures that no law enacted by the legislature infringes upon these rights. Clause 3(a):This subclause clarifies that the term "law" in Article 13 includes not only existing laws (as mentioned in Clauses 1 and 2) but also any amendment to a law made by the legislature in the exercise of its constituent power to amend the Constitution under Article 368. In simpler terms, if there is any amendment made to the Constitution that violates or abridges the fundamental rights, Article 13(3)(a) ensures that such an amendment would also be considered void to the extent of its inconsistency with fundamental rights. Landmark Judgment: On February 27, 1967, the Supreme Court, with its largest-ever bench at the time, delivered the judgement in favour of the Golaknath brothers by a slim 6:5 majority. The court held that the Fundamental Rights enshrined in Part III of the Constitution were immune from amendments under Article 368. Further they stated that if any of such rights provided under part III are to be amended, a new constituent assembly must be convened for making a new constitution or radically changing it. The court ordered that any “Amendment” to the Constitution of India is to be considered ordinary law and has to pass the test of Article 13, where in and individuals rights are being protected This landmark decision marked a significant departure from the precedent set by the case of Shankari Prasad v. Union of India (1951), wherein the court had upheld Parliament's authority to amend all aspects of the constitution, including Part III relating to Fundamental Rights. Consequently, the Golaknath case resulted in Parliament losing its power to amend fundamental rights. Consequences and Legacy: The Golaknath case left an indelible mark on the constitutional history of India. It reinstated the supremacy of Fundamental Rights and reinforced the idea that these rights were beyond the reach of parliamentary amendments under Article 368. The decision established a precedent that shaped subsequent interpretations of constitutional law and set the stage for future legal battles over the scope of parliamentary authority. The judgement, with its far-reaching consequences, played a crucial role in defining the limitations of parliamentary authority and reaffirming the sanctity of the Constitution as the foundational document of the Indian Republic.

Tripti

Nov 21, 2023

Case Law- KM Nanavati v State of Maharashtra

Case: K.M. Nanavati v. State of Maharashtra Citation: 1962 AIR 605 1962 SCR Supl The KM Nanavati v State of Maharashtra case, which unfolds in the late 1950s and early 1960s, stands as a landmark in the context of Indian jurisprudence. It is centrally concerned with the prosecution of Commander KM Nanavati, a naval officer, for the murder of businessman Prem Ahuja, after Nanavati discovers the alleged extramarital affair between his wife, Sylvia Nanavati, and Prem Ahuja. Facts of the Case On 18th April 1959, Nanavati returning from his ship, addresses his wife’s distant behaviour towards him, comes to know of the affair between his wife and an acquaintance namely Prem Ahuja. Sylvia and Prem had developed an illicit relationship during the time Nanavati was away on a long voyage The confession of his wife led him to confront Prem Ahuja at his residence that evening. After an exchange of heated words, Nanavati shoots and causes the death of Prep Ahuja, the act which is later claimed to be of spontaneous nature, committed in the heat of the moment. Following the shooting, Nanavati immediately goes to the police station and surrenders himself. This raised legal questions regarding the applicability of the doctrine of "grave and sudden provocation," which, if validated, could mitigate the charge to culpable homicide not amounting to murder. Issues of the Case The central question that loomed over the case was the nature of Nanavati's act – was it a crime of passion, a result of "grave and sudden provocation," or a premeditated murder? This distinction would be pivotal in determining the severity of the charges brought against Nanavati. Legal Proceedings and Judgment Initially, a jury in the sessions court acquitted Nanavati, accepting the defense's argument that the act was committed under "grave and sudden provocation." However, dissatisfied with the verdict the Sessions judge referred the case to the Division of bench of Bombay High Court The High Court, on appeal, overturned the verdict, finding Nanavati guilty of culpable homicide not amounting to murder. This turn of events prompted reflections on the adequacy and reliability of the jury system in delivering justice. Nanavati then appealed to the Supreme Court, seeking a reversal of the High Court's decision. The Supreme Court, after meticulous examination of the case, rejected the claim of "grave and sudden provocation," asserting that Nanavati's act was a "calculated response" rather than an impulsive act. Consequently, the Supreme Court upheld Nanavati's conviction. The Supreme Court summarised the “Principles of grave and sudden provocation” as below: The criterion for determining "grave and sudden" provocation hinges on whether a reasonable individual, belonging to the same societal class as the accused and placed in an identical situation, would be sufficiently provoked to lose self-control. In the Indian context, specific circumstances may render words and gestures capable of causing grave and sudden provocation to the accused, thereby falling within the scope of the first exception to Section 300. The mental state induced by the victim's preceding actions can be taken into account when assessing the culpability of the accused. For the fatal blow to qualify as arising from the influence of passion due to provocation, it must be unequivocally linked to that provocation and not occur after the dissipation of passion through the passage of time, allowing room for premeditation and calculation. The court clarified that, in order to claim protection under the exception of 'grave and sudden' provocation, the act of murder must be directly tied to the immediate provocation and should not occur once the emotional intensity has subsided. Judicial Reforms and Legacy The KM Nanavati case triggered a huge shift in the Indian judicial system. The inadequacies and vulnerabilities of the jury system became glaringly evident during the legal proceedings, prompting a re-evaluation of its role in the Indian legal framework. Subsequently, the case played a pivotal role in the abandonment of jury trials in India. The legal reforms spurred by the Nanavati case were not limited to the abolition of jury trials alone. The case underscored the need for broader reforms to enhance the fairness and efficacy of the legal process. It contributed to the ongoing discourse on legal procedures, the quality of legal representation, and the pursuit of justice. Conclusion Beyond the personal tragedy and emotional turmoil that surrounded the case, it led to a re-evaluation of the Indian judicial system. The case marked the end of an era with the abandonment of the jury system, paving the way for a more evolved and robust legal framework. The legacy of the Nanavati case endures as a reminder of the continuous pursuit of justice and the resilience of the legal system in adapting to the evolving needs of society.

Tripti

Oct 06, 2023

Case Analysis: Mohori Bibee v. Dharmodas Ghose

Name - Mohori Bibee v. Dharmodas Ghose Citation - (1903) ILR 30 Cal 539 (PC) Any agreement or deed in which the minor is a party to it or is included in such agreement shall be declared null and void because such agreement is not an agreement in the eyes of the law. In cases of minors parents or custodians shall not be liable for the dealing done by the minor without their consent, and hence they will be not liable to return the amount back taken by the minor out of the moral obligation. FACTS OF THE CASE Dharmodas Ghose was the respondent in this case. He was a minor (i.e. has not completed the 18 years of age) and he was the sole owner of his immovable property. The mother of Dharmodas Ghose was authorised as his legal custodian by the Calcutta High Court. When he went for the mortgage of his own immovable property which was done in the favor of the appellant i.e. Brahmo Dutta, he was a minor and secured this mortgage deed for Rs. 20,000 at a 12% interest rate per year. Brahmo Dutta who was a money lender at that time and he secured a loan amount of Rs. 20,000. Dharmodas Ghose’s mother sent a notification to Brahmo Dutta informing him about the minority of Dharmodas Ghose on the date on which such mortgage deed was commenced, but the proportion of the sum of loan that was actually provided was less than Rs. 20,000. The representative of the defendant, who actually acted instead of on behalf of the money lender has given money to the plaintiff, who was a minor and he fully had knowledge about the incompetency of the plaintiff to perform or enter into the contract and also that he was incompetent legally to mortgage his property which belonged to him. Hence, Dharmodas Ghose along with his mother brought legal action against Brahmo Dutta by saying that the mortgage that was executed by Dharmodas was commenced when he was a minor or infant and so such mortgage was void and disproportionate or improper and as a result of which such contract should be revoked. When this petition or claim was in process, Brahmo Dutta had died and then further the appeal or petition was litigated by his executors. The plaintiff argued or confronted that in such case no relaxation or any sought of aid should be provided to them because according to him, the defendant had dishonestly misinterpreted the fact about his age and because if a mortgage is cancelled at the request by the defendant i.e. Dharmodas Ghose. ISSUES OF THE CASE Whether the deed was void under sections 2, 10, and 11 of the Indian Contract Act, 1872, or not? Whether the defendant was liable to return the amount of loan which he had received by him under such deed or mortgage or not? Whether the mortgage commenced by the defendant was voidable or not? CONTENTIONS OF THE PARTIES The respondent was a major when he executed the mortgage. Neither the appellant nor his agent had any notice that the respondent was a minor. The respondent made a fraudulent declaration regarding his age and is hence disentitled from seeking any relief. The respondent is stopped by section 115 of the Indian Evidence Act, 1872 from claiming that he was a minor at the time of executing the mortgage. The respondent must repay the amount advanced according to sections 64 and 38 of the Indian Contract Act (1872) and section 41 of the Specific Relief Act (1877). JUDGEMENT According to the verdict of the Trial court, such a mortgage deed or contract that was commenced between the plaintiff and the defendant was void as it was accomplished by the person who was an infant at the time of execution of the mortgage. When Brahmo Dutta was not satisfied with the verdict of the Trial Court he filed an appeal in the Calcutta High Court. According to the decision of the Calcutta High Court, they agreed with the verdict that was given by the Trial court and dismissed the appeal of Brahmo Dutta. Then he later went to Privy Council for the appeal and later the Privy Council also dismissed the appeal of Brahmo Dutta and held that there cannot be any sought of contract between a minor and a major person. The final decision that was passed by the council were- Any sought contract with a minor or infant is void/void ab- initio (void from the beginning). Since the minor was incompetent to make such a mortgage hence the contact made or commenced shall also be void and not valid in the eyes of the law. The minor i.e. Dharmodas Gosh cannot be forced to give back the amount of money that was advanced to him, because he was not bound by the promise that was executed in a contract.

Sumasri

Sep 18, 2023

Lee v Lee's Air Farming - Lifting of Corporate Veil

CASE NAME: Catherine Lee v. Lee’s Air Farming Limited CITATION(S): [1961] UKPC 33, [1961] AC 12 As per the Companies Act, 2013 Separate legal entity means that a company which is registered under this act as a non-profit organization, private limited company, public company, government company, or chit fund company shall have a legal identity of its own and will have rights under the law and will treat as a separate entity from its shareholder. It can own property in its name enter into contracts with other persons and represent itself in a court of law through its representative. A separate legal entity also acts as a veil between the company and its members. This means that the assets of the company shall be used only for the objective of the company as set in the Memorandum of Association and its liabilities should be paid by itself and not from a personal asset of the member of the company. FACTS OF THE CASE In 1954 the appellant’s husband Lee formed the company named Lee’s Air Farming Ltd. to carry on the business of aerial top-dressing with 3000 thousand shares of 1euro each forming share capital of the company and out of which 2999 shares were owned by Lee himself. Lee was also the director of the company. He exercised unrestricted power to control the affairs of the company and made all the decisions relating to contracts of the company. The company entered into various contracts with insurance agencies for the insurance of its employees and a few premiums of the policies were paid through the company's bank account for the personal policies taken by Lee in its name but it was debited in the account of Lee in the company's book. Lee apart from being the director of the company was also a pilot. In March 1956, Lee was killed while piloting the aircraft during aerial top-dressing. His widow claimed compensation for his death on the grounds of personal injuries caused to her husband during his employment. She claimed that her husband was killed while piloting the company’s aircraft and thus, was liable for compensation under the Workmen Compensation Act of New Zealand. The insurance company opposed the claim. It was argued that no compensation could be paid because Lee and Lee’s Air Farming Ltd. were the same person. It was contended that Lee was not a worker because the same person cannot be the employer and the employee. ISSUES OF THE CASE Can Lee, being the controlling owner and having the maximum number of shares in the company, be entitled to receive compensation under the Workmen Compensation Act? Can he be treated as an employee in the company for the grant of compensation or can he be denied such compensation because he was also the managing director? Does a master-and-servant relationship exist between Lee and his company, Lee’s Air Farming Ltd.? GOVERNING LAW This case illustrates the application of the principles established in the landmark case of Salomon v. Salomon and Co. Ltd. Salomon’s case is well-known for establishing the principle of corporate personality. Once a company is validly constituted, it becomes a legal person distinct from its members. The principle of corporate personality holds that a company formed under the Companies Act is vested with a separate corporate personality, which allows it to carry its name, act under its name, have its seal, and have assets separate and distinct from those of its members. It is a distinct ‘person’ from the individuals who form it. As a result, it can own property, incur debts, borrow money, have a bank account, hire people, enter into contracts, and sue or be sued in the same way as an individual can. Its members are its owners, but they might also be its creditors. Even when a shareholder owns nearly the entire share capital, he cannot be held accountable for the company’s actions. The company cannot be bound by the actions of the shareholders because they are not the agents of the company. Moreover, members cannot file a lawsuit to assert the company’s rights or be sued in connection with its obligations because the company does not hold its property as an agent or trustee for its members. JUDGEMENT The Court held that Lee was a separate person having an identity distinct from the company he formed. Contractual relationships were entered into between Lee and his company, both being distinct legal persons, under which Lee became a chief pilot and a servant of the company. The Privy Council observed that in the capacity of being the managing director of the company, he could give himself orders (in his other capacity as a pilot) on behalf of the company. The relationship between himself, as a pilot, and the company, was that of a servant and a master. Hence, compensation was payable to him for the loss suffered during his employment. The compensation was recovered by his widow under the Workmen Compensation Act. In effect, the principle of corporate personality enabled Lee to become the master and servant at the same time and still enjoy the benefits of both. The Court further held that a member of a company can contract with the company of which he is a shareholder. Valid contracts of service can be entered into between a member and a company as both operate as separate legal entities. Moreover, to claim the amount under workmen’s compensation legislation, the directors are not precluded from being an employee of a company. Thus, directors are also eligible for compensation. Regardless of the level of control that Lee had over the affairs of the company, a valid contract of service existed between Lee and the company. Therefore, Lee was deemed to be a worker. And Mrs Lee was entitled to get compensation.

Sumasri

Sep 12, 2023

Case Law- Lalman Shukla v. Gauri Dutt

Case Analysis Case name - Lalman Shukla v. Gauri Dutt Citation - 1913 40 ALJ 489 The case Lalman Shukla v. Gauri Dutt case is one of the popular landmark judgments which is based on the validity of a contract under the Indian Contract Act. The case was filed in the Allahabad High Court in 1913 the verdict was given by the Chief Justice of Allahabad High Court J. Banerjee. ? FACTS OF THE CASE In this case, the defendant Gauri Dutta’s Nephew absconded from his house. The trace of the boy was not found. After the incident, Gauri Dutt the defendant sent all his servants in search of her missing nephew and out of the servants was the plaintiff Lalman Shukla who had also gone to find the boy and bring him back. After Lalman was sent to Haridwar from Kanpur. He was provided with money and other expenses for his railway fare. As soon as Lalman left the house Gauri Dutt made an announcement that any person who traced and found his missing nephew would be rewarded with money of Rs 501. Lalman Shukla had no idea and was not aware of the fact. He had no knowledge about it before he went to trace the missing boy. Then Lalman traced the boy and brought the boy back to Kanpur. After knowing about the reward Lalman claimed the money from his master Gauri Dutt. But Gauri Dutt denied paying the reward of Rs 501 to him. As a result, the plaintiff Lalman Shukla filed a case against Gauri Dutt his master for not giving him the reward as he is not entitled to recover for the performance of his act. ISSUES OF THE CASE Whether Lalman Shukla entitled to get the reward money for searching missing nephew? Whether there was a valid acceptance between the two parties? Whether there was a contractual relationship between the two parties? CONTENTIONS OF THE PARTIES Petitioner (Lalman Shukla) vehemently contended that he was entitled to receive the reward money from Respondent (Gauri Dutt) as he found the missing nephew. Petitioner stated that there is no need for prior knowledge emphasizing Section 8 of the Indian Contract Act 1872 which states, “Performance of the act or the acceptance of any consideration in a proposal is the acceptance of the proposal”, and to have the knowledge of the condition was immaterial. The defendant strongly argued that the plaintiff had no knowledge about the offer and was not aware of it before finding the missing nephew. So an offer without the knowledge of the offeree cannot be accepted or there is no such condition where the plaintiff can accept the offer without its knowledge. Gauri Dutt emphasized Section 2(a) which said, “When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal”. Further Section 2(b) said, “When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise”. Therefore, the plaintiff had no knowledge about the offer made and there was no acceptance. So according to Section 2(h) of the Indian Contract Act 1872, since there was no acceptance, there was no agreement to be enforced by a court of law. JUDGEMENT The case was filed in the Allahabad High Court and was presided over by Justice Banerji at the Allahabad High Court. In this case, it is derived that two aspects need to be fulfilled: To have complete knowledge of the offer or the proposal Acceptance of the offer In this case, the petitioner's appeal against the respondent Gauri Dutt was dismissed by the court. After analysing all the facts of the case, it was held by the Court that for creating or entering into a valid contract there has to be knowledge and assent to the offer being made by the proposer. There has to be proper acceptance or the offeree must give his approval before accepting which was absent in the present case. The plaintiff had no knowledge about the reward before performing his act. He came to know afterwards that there was no possibility of accepting the offer. Hence there exists no contract so as a result the court came to the decision that the appellant Lalman Shukla was not entitled to get the reward. without having any prior knowledge and information about the facts which restricts him from claiming the reward. The judge said that Lalman Shukla was fulfilling his obligations as a servant of tracing the missing boy. It was a part of his duty which he was merely doing. Hence his suit against the defendant was entirely dismissed by the court as there was no contract between both the parties.

Sumasri

Jul 04, 2023

Same-Sex Marriage Hearing In India

Case - Supriyo and Anr v. Union of India Citation - W.P.(C) No. 1011/2022; Diary No. 36593/2022 The Supreme Court of India on April 18, 2023, began hearing a series of petitions seeking legal recognition of same-sex marriage in India under the Special Marriage Act[1]. The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law. The main petitioners of the case, Supriyo and Abhay Dang, argue that the non-recognition of same-sex marriage amounts to discrimination that strikes at the root of dignity and self-fulfilment of LGBTQIA+ couples. The petitions argued that marriage brings with it several rights, privileges, and obligations that are “bestowed and protected by the law”. The Delhi Commission for Protection of Child Rights (DCPCR) also advocated for the recognition of marriage, filing an intervention application to assist the court with the impact of such marriages on children. On the other hand, the respondents, including the Central government, the national child rights body NCPCR, and a body of Islamic scholars called the Jamiat-Ulama-i-Hind, opposed the petitions. The Centre has maintained its stance against marriage equality, invoking that a marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India. In its submission to the Supreme Court, the Centre has called this petition, a voicing of “urban elitist views”. According to the Centre, the judiciary should leave the task to the Parliament, the people would decide whether such a marriage is socially and religiously acceptable or not. Here’s the chronology of how the case reached the Constitution Bench of the Supreme Court: November 25, 2022: Two gay couples moved the Supreme Court, seeking recognition of same-sex marriage under the Special Marriage Act, following which the court issued notices on the plea that, The petitions sought that the Special Marriage Act be made gender-neutral by taking down any gender-or sexuality-based restriction. The court had noted that in a similar case before the Kerala High Court, the Union Government made a statement through the Deputy Solicitor General that the ministry was taking steps to get all the writ petitions, including the writ petition before the High Court of Delhi, transferred to the SC. The court also took note of petitions pending before various courts on the same subject, including one petition before the Kerala HC and eight others before the Delhi HC. A two-judge bench led by Chief Justice of India DY Chandrachud then issued a notice and sought a response from the Central government, and the Attorney General for India. December 14, 2022: The Supreme Court issued a notice in another plea filed by a same-sex couple. The married couple, including one Indian national and one US citizen, sought legal recognition of their marriage under the Foreign Marriage Act, of 1969. Transfer of cases from High Courts to Supreme Court: January 6, 2023: The Supreme Court directed the transfer of all petitions seeking legal recognition for same-sex marriages pending before different high courts to the Apex Court. A bench headed by CJI DY Chandrachud transferred all petitions pending on the issue before different high courts, including Delhi, Kerala, and Gujarat. The top court posted to March 13 the hearing of petitions seeking recognition of same-sex marriage under various Acts, including the Special Marriage Act, Foreign Marriage Act[2], and the Hindu Marriage Act[3]. The government was asked to file its response to the pleas by February 15. The court said that multiple petitions are pending before different high courts involving similar issues and should be transferred to and decided by the Apex court. The court also granted liberty to petitioners to argue before the court virtually. The court appointed nodal counsel on behalf of both sides to assist the court. The CJI suggested the Solicitor General and the petitioner counsels discuss and identify the issues to be argued. The CJI also said that 3-4 lead counsels can be decided by the petitioners to ensure there was no repetition. The court had earlier issued notice on some of the pleas and had sought the Centre’s response to two pleas filed by two gay couples, seeking the solemnisation of same-sex marriage under the Special Marriage Act, of 1954. The SC appointed Advocate Kanu Agarwal as the nodal counsel for the Union of India and Advocate Arundhati Katju for the petitioners, to assist the court. January 30, February 10, February 20, & March 3, 2023: The Supreme Court issued notices on more petitions filed seeking similar relief and tagged them with the main case. March 12, 2023: The Centre filed an affidavit before the SC opposing same-sex marriage, stating that the concept of an Indian family involves a biological man and woman and it won’t be possible for the court to change the entire legislative policy of the country that was deeply embedded in religious and societal norms. According to the Centre, a union between persons of the opposite sex was socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation. The codified and uncodified personal laws take care of all branches of every religion, and depending upon the personal laws applicable, the nature of marriage as an institution is different. The Centre’s affidavit stated that "amongst Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again envisaged only between a biological man and a biological woman”. March 13, 2023: The SC referred the case to a Constitution Bench, considering the broader context of the petitions and the inter-relationship between the statutory regime and constitutional rights. The petitioners asserted broader constitutional entitlements arising out of the right to life and personal liberty and the right to dignity, which are embodied in the provisions of the Constitution, including its Preamble, and as a natural incident of Articles 14, 19, and 21. The submissions involved the interplay between constitutional rights on the one hand and specific legislative enactments, including the Special Marriage Act 1954, the Foreign Marriage Act 1969, the Hindu Marriage Act 1955, the Citizenship Act[4], and the Transgender Persons Protection of Rights Act 2019[5]. The Supreme Court noted that one of the issues raised before the court relates to the rights of transgender couples to marry, as a natural incident of their constitutional entitlements. The top court found it appropriate for the issues raised to be resolved by a bench of five judges in view of the provisions of Article 145(3) of the Constitution. April 1, 2023: The Jamiat Ulama-I- Hind (JUIH) opposed the pleas seeking legal recognition of same-sex marriages, claiming that Islam’s position on the prohibition of homosexuality is undisputed and established. The JUIH plea said, “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself. The position of Islam with respect to the prohibition on homosexuality is undisputed and established.” April 6: The Delhi Commission for Protection of Child Rights (DCPCR) filed an intervention application, supporting same-sex marriages and the right of same-sex couples to adopt. The case came before the Constitution Bench: April 15, 2023: The Supreme Court notified the composition of the five-judge bench that will hear the batch of petitions seeking legal recognition for same-sex marriage. The five-judge Constitution Bench comprises Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. April 17, 2023: The Centre filed a new application, this time questioning the maintainability of the batch of pleas. The application was mentioned by the Solicitor General and the CJI directed the same to be listed with the main case. The Centre in its application said same-sex marriages cannot be recognised through judicial adjudication and it is in the exclusive domain of the legislature. The Centre stated that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance", and that the popular will of the people is that marriage be recognised solely amongst heterosexual individuals. The NCPCR also raised a plea stating that children raised by same-sex parents may have limited exposure to traditional gender role models, which could impact their understanding of gender roles and gender identity. The NCPCR further stated that exposure of these children would be limited and their overall personality development would be affected. However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners and said adoption and succession rights must be conferred on same-sex couples. The Bar Council of India (BCI) also recently held a joint meeting with all the State Bar Councils in the country and passed a resolution requesting the Court to leave the same-sex marriage issue for legislative consideration. The BCI's statement was later condemned by the Supreme Court Bar Association (SCBA) stating that it is the duty of the apex court to hear the petition and decide whether it should be adjudicated by the Court or be left to the wisdom of the parliament. After 7 days of hearing the SC on 27 April 2023, had asked the Centre to come back with its response on the social benefits that same-sex couples can be granted even without legal recognition of their marital status. The court posed the question after observing that the Centre's acceptance of the right to cohabitate with same-sex partners as a fundamental right cast a “corresponding duty" on it to recognise its social consequences. On the 8th day of the hearing, 3 May 2023, the Centre proposed forming a multi-ministry Committee under Cabinet Secretary to address concerns of the LGBTQ+ community and suggestions given by the petitioners. Solicitor General Tusshar Mehta stated to the Supreme Court that the Committee would have representation from across ministries and it will be headed by the Cabinet Secretary. The next hearing will be held on 9 May 2023. On the 9th day of the hearing, Appearing for the child rights body NCPCR, among others, ASG Aishwarya Bhati submitted that while the concept of gender may be “fluid”, the concepts of mother and motherhood are not. According to her “entire architecture of our laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons, and the State is justified in treating heterosexuals and homosexuals differently,” Meanwhile, the Centre informed the SC that it had received responses from seven states on the plea seeking legal recognition for same-sex marriages. While Rajasthan, Assam, and Andhra Pradesh opposed the plea, the remaining four — Sikkim, Maharashtra, Uttar Pradesh, and Manipur — sought more time. Additionally, petitioners’ advocate Mukul Rohatgi suggested that without an interpretation of the Special Marriage Act in favour of LGBTQIA+ persons, the court could register marriages under the Registration Act, of 1908. On the final day of arguments, the defendants’ Senior Advocate AM Singhvi told the Bench that a civil union, as permitted in some countries, is not a solution to what same-sex couples are asking for, as civil unions are not an equal alternative and do not address constitutional anomalies presented by excluding non-heterosexual couples from the institution of marriage. This exclusion sends a message that it is legitimate to differentiate between the commitments of heterosexual and non-heterosexual couples, by indicating that the latter’s marriages are not as significant as “real” marriages. The Supreme Court on 11 May 2023 reserved its verdict on the batch of petitions seeking legal recognition of same-sex marriages after a hearing that lasted 10 days. The bench, however, did not indicate any tentative time frame for delivering its verdict as the Supreme Court will remain shut for the summer vacation till June 30, 2023, starting May 22, 2023. The judgment is expected only after this break. This debate is being keenly watched in a country that is home to tens of millions of LGBTQ+ people. Over the years, acceptance of homosexuality has also grown in India, especially since the September 2018 ground-breaking ruling that legalised consenting same-sex relationships. But attitudes to sex and sexuality remain largely conservative and activists say most LGBTQ+ people are afraid to come out, even to their friends and family, and attacks on same-sex couples routinely make headlines. [1] https://indiankanoon.org/doc/4234/ [2] https://ncwapps.nic.in/acts/TheForeignMarriageAct1969.pdf [3] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf [4] https://www.indiacode.nic.in/bitstream/123456789/4210/1/Citizenship_Act_1955.pdf [5] https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf

Sumasri

May 05, 2023

Case Law - Maneka Gandhi v. Union of India

Judgement - Maneka Gandhi v. Union of India Citation - AIR 1978 SC 597 Introduction 'Personal Liberty' means freedom from physical restraint and coercion which is not authorised by law. Prior to this case decision, Article 21[1] guaranteed the Right to Life and Personal Liberty only against the arbitrary action of the executive and not the legislative action. This case just turned up pages and extended the protection against legislative actions. This case is regarded as one of the best judgements delivered by the apex court as it was instrumental in restoring people's faith in the judiciary and constitutional values. It was in this case that the "Golden triangle" rule was firmly established by the SC and the court firmly cemented its seat as the watchdog of democracy. This decision, which was delivered by a 7-judge bench of the Hon'ble Supreme Court on 25th January 1978, marked the development of a new era with respect to the interpretation of fundamental rights guaranteed in the Constitution. Facts of the case The petitioner Maneka Gandhi's passport was issued on 1st June 1976 as per the Passport Act of 1967[2]. On 2nd July 1977, the Regional Passport Office (New Delhi) ordered her to surrender her passport. The petitioner was also not given any reason for this arbitrary and unilateral decision of the External Affairs Ministry, citing public interest. The petitioner approached the Supreme Court by invoking its writ jurisdiction and contending that the State's act of impounding her passport was a direct assault on her Right to Personal Liberty as guaranteed by Article 21. It is pertinent to mention that the Supreme Court in Satwant Singh Sawhney v. Ramarathnam[3] held that the right to travel abroad is well within the ambit of Article 21, although the extent to which the Passport Act diluted this particular right was unclear. The authorities, however, answered that the reasons are not to be specified in the "interest of the general public". In response, the petitioner filed a writ petition under Art 32 for violation of fundamental rights guaranteed under Articles 14, 19, and 21 of the Constitution alleging that Section 10(3)(c) of the Act was ultra vires the constitution. Issues of the case Are the provisions under Articles 21, 14, and 19 connected with each other or are they mutually exclusive? Should the procedure established by law be tested for reasonability which in this case was the procedure laid down by the Passport Act of 1967? Is the right to travel outside the country a part of Article 21 or not? Is a legislative law that snatches away the right to life reasonable? Contentions of the Parties The petitioners stated that the State has infringed upon the Petitioner's fundamental rights of freedom of speech & expression, right to life & personal liberty, right to travel abroad, and the right to freedom of movement. India might not have adopted the American concept of the "due process of law", nevertheless, the procedure established by law should be fair and just, reasonable, and not arbitrary. Section 10(3)(c) of the Passport Act violates Article 21 insofar as it violates the right to life & personal liberty guaranteed by this Article. Audi Altrem Partem i.e. the opportunity of being heard is invariably acknowledged as a vital component of the principles of natural justice. Even if these principles of natural justice are not expressly mentioned in any of the provisions of the Constitution, the idea behind the spirit of Fundamental Rights embodies the very crux of these principles. On the other hand, the respondents stated that the passport was confiscated since the petitioner had to appear before a government committee for a hearing. The respondent asserted that the word 'law' under Article 21 couldn't be understood as reflected in the fundamental rules of natural justice, emphasising the principle laid down in the A K Gopalan case.[4] Article 21 contains the phrase "procedure established by law" & such procedure does not have to pass the test of reasonability and need not necessarily be in consonance with Articles 14 & 19. The marked absence of the due process of law from the provisions of the Indian Constitution clearly indicates the constitution-makers intentions. Judgement The court said that section 10(3)(c) of the Passport Act, 1967 is void because it violates Article 14 of the Indian constitution because it confers vague and undefined power to the passport authority. it is violative of Article 14 of the Constitution since it doesn't provide for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not affirm the word "procedure" as mentioned in the clause, and the present procedure performed was the worst possible one. The Court, however, refrained from passing any formal answer on the matter and ruled that the passport would remain with the authorities till they deemed fit. This judgement widened Article 21's scope immensely and it realized the goal of making India a welfare state, as assured in the Preamble. The unanimous judgement was given by a 7-judge bench. Before the enactment of the Passport Act 1967, there was no law regulating the passport whenever any person wanted to leave his native place and settle abroad. Also, the executives were entirely discretionary while issuing the passports in an unguided and unchallenged manner. Further, clause (c) of section 10(3) of the Passports Act, 1967 provides that when the state finds it necessary to seize the passport or do any such action in the interests of sovereignty and integrity of the nation, its security, its friendly relations with foreign countries, or for the interests of the general public, the authority is required to record in writing the reason of such act and on-demand furnish a copy of that record to the holder of the passport. The fundamental rights conferred in Part III of the Constitution are not distinctive nor mutually exclusive." Any law depriving a person of his personal liberty has to stand the test of one or more of the fundamental rights conferred under Article 19. When referring to Article 14, ex-hypothesi must be tested. The concept of reasonableness must be projected in the procedure. The phrase used in Article 21 is "procedure established by law" instead of due process of law which is said to have procedures that are free from arbitrariness and irrationality. There is a clear infringement of the basic ingredient of principles of natural justice i.e., audi alteram partem and hence, it cannot be condemned as unfair and unjust even when a statute is silent on it. Analysis After this case, the Supreme Court became the watchdog to protect the essence of the Constitution and safeguard the intention of the constitutional assembly that made it. The judges mandated that any law which deprives a person of his personal liberty should stand the test of Articles 21,14 as well as 19 of the Constitution. Also, principles of natural justice are sheltered under Article 21 and therefore no person is deprived of his voice to be heard inside the court. Further to declare any state action or legislation invalid, the "golden triangle". This arbitrary act of impounding the passport eventually led to the pronouncement of a unanimous decision by a seven-judge bench of the apex court comprising M.H. Beg (CJI), Y.V. Chandrachud, V.R. Krishna Iyer, P.N. Bhagwati, N.L. Untwalia, S. Murtaza Fazal Ali and P.S Kailasam This decision rendered void the plain and simple meaning of procedure established by law and introduced for the first time the concept of due process of law into the Indian constitution. The court also accepted that the Right to Travel Abroad is a very important component of the Right to Liberty, if this right is not granted, liberty is distorted. By this judgement, the court increased the scope of Article 21 of the Constitution and made it the duty to interpret Article 21 in a manner that serves the people's interest most. [1] https://indiankanoon.org/doc/1199182/ [2] https://passportindia.gov.in/AppOnlineProject/pdf/PassportActEng.pdf [3] 1967 AIR 1836, 1967 SCR (2) 525 [4]1950 AIR 27, 1950 SCR 88

Sumasri

Apr 24, 2023

Case Law - Kesavananda Bharati Sripadagalvaru & Ors v. State of Kerala and Anr

Judgement - Kesavananda Bharati Sripadagalvaru & Ors v. State of Kerala and Anr Citation - (1973) 4 SCC 225; AIR 1973 SC 1461 Introduction It was during 1950-51, the government of India introduced Articles 31A and 31B through the First Constitutional Amendment, 1950. These two provisions allowed the government to acquire private property for public purposes and art. 31B introduced the 9th schedule- which gives judicial immunity to any laws if brought under its ambit. Laws in that schedule shall not be judicially reviewed. This amendment affected the right to property under the then 19(1) (f) of the Indian Constitution. Many important cases such as Shankari Prasad (1951)[1], Sajjan Singh (1965)[2], and Golaknath case (1967)[3] came up. The important question was identical in all cases, and they had produced contrary judgements till the Golaknath case. These contradictions were resolved through the Kesavananda Bharati case[4], and the basic structure doctrine was introduced in India. It is rightly said that the judgement in the instant case brought an end to the conflict between the executive and the judiciary and proved to be a saviour of the democratic system and set up in the country. The majority judgement in the case was pronounced by Chief Justice S.M.Sikri, Justice Hegde, Justice Mukherjee, Justice Shehlat, Justice Grover, Justice Jaganmohan Reddy, Justice Khanna, and was dissented by Justice Ray, Justice Palekar, Justice Mathew, Justice Beg, Justice Dwivedi and Justice Chandrachud. Facts of the case Kesavananda Bharati was the head of the Edneer Mutt, a monastic religious institution located in the Kasaragod district, of Kerala. Bharati had some land in the Mutt which he owned. The Kerala state government passed the Land Reforms Amendment Act in 1969. As per this Act, the government could acquire some of the lands that belonged to the Mutt. In March 1970, Bharati moved the Supreme Court (under Section 32 of the Constitution[5]) to enforce the rights that were guaranteed to him under: Article 25: Right to Practice & Propagate Religion Article 26: Right to Manage Religious Affairs Article 14: Right to Equality Article 19(1)(f): Freedom to Acquire Property Article 31: Compulsory Acquisition of Property The Kerala state government enacted another law, the Kerala Land Reforms (Amendment) Act, 1971 even as the petition was under the court’s consideration. The contentions made by the petitioners brought to the fore the validity of various amendments that were brought in by the Parliament to nullify the effects of Golaknath v State of Punjab. The petitioners challenged, in particular, three constitutional amendments – the 24th Amendment, the 25th Amendment, and the 29th Amendment and their validity. Issues of the case Whether the 24th Constitutional (Amendment) Act, of 1971 and the 25th Constitutional (Amendment) Act, of 1972 are constitutionally valid? The extent to which the Parliament can exercise its power to amend the Constitution. Whether the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, or abrogate any part of the Constitution even to the extent of taking away all fundamental rights? Contentions by both parties Mr Palkhivala, Learned counsel for the petitioner side relied on the decision held in the Golaknath case of 1967. He also contended that any damage to fundamental rights should not be impermissible. He noted that parliament should not damage the fundamental rights of the citizens through the amending power it carries under Article 368[6] of the Indian Constitution. He regarded these fundamental rights as one of the basic ingredients or principles of the Indian Constitution. Lastly, he argued that the amending power is limited under Article 368 as per the preamble and the scheme of the constitution. The Parliament cannot amend the Constitution to change its basic structure as was set forth by Justice Mudholkar in the Sajjan Singh v State of Rajasthan case. They argued that the 24th & 25th Constitutional Amendments were violative of the Fundamental Rights provided in Article 19(1)(f). On the other hand, Mr Seervai appearing for the respondent state and Union of India, argued that taking away the rights shall be permissible after the 24th amendment to the Indian Constitution. It was also argued that amending powers of the parliament has no limitations and shall be limited on the ground of repugnancy, inalienable rights, and preamble. The respondents stressed that to fulfil its socio-economic obligations the unlimited power of the Parliament to amend the Constitution must be upheld. Judgement Two main elements are to be understood from the historic verdict of the case. One is concerning the limitations on the amending powers of the parliament. Secondly, concerning the introduction of the Doctrine of the Basic Structure of the Indian Constitution. Firstly, the Supreme Court bench upheld the 24th Constitutional Amendment and noted that Parliament should have the power to amend any part of the Constitution, which will also include fundamental rights under Part 3 of the Constitution. This is something that was implied in the Indian Constitution itself. It also upheld the decisions held in the cases of Shankari Prasad and Sajjan Singh on whether the amendment is a law and stated that Constituent power is completely different from that of ordinary legislative powers. Second and most importantly, it held that the power of the Parliament under Article 368 to amend the Constitution is limited in scope. It noted that there are no implied limitations on the powers of the amendment, and the rights which are enforceable under the Constitution shall remain as a basic part of the Constitution. The court observed and held that basic structure elements are envisaged in the preamble and also in various provisions. It noted that the Indian Constitution is built on various properties, and if we remove them, such a constitution shall collapse. A few such include sovereign, democratic, republic, justice social, economic, political, equality, liberty of thought, etc. Thus, if we withdraw these elements, the identity of the Constitution shall not survive and shall result in vagueness and improperness in the system. Thus, this is the basic structure of the Indian constitution. Analysis The case of Kesavananda Bharati vs the State of Kerala as mentioned supra had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The majority of the bench (7:6) wished to safeguard the Constitution by preserving its basic features. The judgment was based on sound reasoning and it was given after a careful analysis of multifarious aspects. The bench opined that if the Parliament were to get unfettered power to amend, there were chances of that power being misused, and that governments would change it as per their preferences and whims. Such limitless powers vested in the hands of the government would mean that the basic features and also the very essence and spirit of the Indian Constitution could be changed. There was a need for a doctrine that could protect the rights of both the Indian Parliament and Indian citizens; the bench met this need halfway and came up with the basic structure doctrine, that protects the rights of both camps. It is to be noted that while in the US, only 27 amendments have been made, India has seen over one hundred amendments since independence. Despite this big number, the spirit of the Constitution and also the ideas of the Constitution-makers have not been tampered with. It is because of the bench’s decision that the identity and spirit of the Constitution have not been lost. This landmark case has given our Constitution stability. Even though the petitioner lost this case partially, the SC ruling in the Kesavananda Bharati case turned out to be a saviour for Indian democracy and also prevented the Constitution from losing its spirit. [1]https://articles.manupatra.com/article-details/A-Case-Analysis-Shankari-Prasad-v-Union-of-India-Supreme-Court [2] https://indiankanoon.org/doc/1308308/ [3] https://indiankanoon.org/doc/120358/ [4] https://indiankanoon.org/doc/257876/ [5] https://indiankanoon.org/doc/981147/ [6] https://indiankanoon.org/doc/594125/

Sumasri

Feb 23, 2023

Case Study : Salomon v. Salomon & Co. Ltd

Introduction Separate Legal Personality (SLP) is the basic tenet on which company law is premised. Establishing the foundation of how a company exists and functions, it is perceived as, perhaps, the most profound and steady rule of corporate jurisprudence. Contrastingly, the rule of “SLP” has experienced much turbulence historically and is one of the most litigated aspects within and across jurisdictions. This principle, established in the case of Salomon v Salomon, is still much prevalent and is conventionally celebrated as forming the core of, not only the English company law but of the universal commercial law regime. Name - Salomon v. Salomon & Co. Ltd. Citation - (1897) A.C. 22, [1896] UKHL 1 Facts Aron Salomon had for many years carried on a prosperous business as a leather merchant. In 1892, he decided to convert it into a limited company and for that purpose, Salomon & Co. Ltd. was formed with Salomon, his wife, his daughter, and his four sons as members, and Salomon as Managing Director. The company purchased the business of Salomon for £ 39,000. The price was satisfied by £ 10,000 in debentures, conferring a charge over all the company’s assets, £ 20,000 in fully paid up £ 1 shares, and the balance in cash. Seven shares were subscribed in cash by the members and the result was that Salomon held 20,001 shares out of 20,007 shares issued, and each of the remaining six shares was held by a member of his family. The company almost immediately ran into difficulties and only a year later the holder of debentures (Salomon had transferred his shares to another person) appointed a Receiver and the company went into liquidation. On liquidation, the value of assets was divided as £ 6,000 for liabilities,£ 10,000 for debentures, and £ 7,000 for unsecured debts. After paying off the debenture holders nothing would be left for the unsecured creditors. Thus, an action was brought by the Liquidator against Salomon holding him liable to indemnify the company against the company’s trading debts. Issues Whether Salomon & Co. Ltd. was a legally valid company? Whether Salomon was liable for the debts of the company? Judgement The Court of Appeal, declared the company to be a myth, reasoned that Salomon had incorporated the company contrary to the true intent of the then Companies Act, 1862 (hereinafter to be referred to as the Act) and that the company had conducted the business as an agent of Salomon, who should, therefore, be responsible for the debt incurred in the course of such agency. However, upon appeal, the House of Lords reversed the above ruling, and unanimously held that, as the company was duly incorporated, it is an independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are. In the present case, the Company Act of 1862 provided that any seven or more persons, associated for a lawful purpose may, by subscribing their names to a memorandum of association and otherwise complying with the provisions of the Act in respect of registration form a company with or without limited liability. The Act further provided that “no subscriber shall take less than one share.” That there were seven actual living persons who held shares in the company was never doubted. Whether the capital of the company is owned by seven persons in equal shares, with the right to equal share in profits, or whether it is almost owned by one person who takes practically the whole profits, it does not concern a creditor of the company. The company does not lose its identity if the bulk of its capital is held by one person. The company at law is an altogether different person from its subscribers/shareholders. Since the company fulfilled all the requirements of the Act, the court held that the company had been validly formed and was a real company. Corporate Veil Commencing with the Salomon case, the rule of SLP has been followed as an uncompromising precedent in several subsequent cases like Macaura v Northern Assurance Co[1]., Lee v Lee’s Air Farming Limited[2], and the Farrar case[3] The legal fiction of the corporate veil, thus established, enunciates that a company has a legal personality separate and independent from the identity of its shareholders. Hence, any rights, obligations, or liabilities of a company are discrete from those of its shareholders, where the latter are responsible only to the extent of their capital contributions, known as “limited liability”. This corporate fiction was devised to enable groups of individuals to pursue an economic purpose as a single unit, without exposure to risks or liabilities in one’s personal capacity. Accordingly, a company can own property, execute contracts, raise debt, make investments, and assume other rights and obligations, independent of its members. Moreover, as companies can then sue and be sued in their own name, it facilitates legal courses too. Lastly, the most striking consequence of SLP is that a company survives the death of its members as well. The Exception of Veil Piercing Notably, similar to most legal principles, the overarching rule of SLP applies with exceptions, where the courts may look through the veil to reach out to the insider members, known as the “lifting or piercing of the corporate veil“. It is worthwhile here to refer to the case of Adams v Cape Industries[4], which examined the common law grounds, primarily evolved through case law as an equitable remedy, namely- (a) agency, (b) fraud, (c) sham, (d) group enterprise, and (e) injustice or unfairness. The exception has been invoked widely by English courts, including in the recent cases of Beckett Investment Management Group v Hall Stone[5] & Rolls v Moore Stephens[6] and Akzo Nobel v The Competition Commission[7], etc. Needless to mention, the journey of English law in defining the contours of the SLP doctrine and carving out these exceptions has been quite a hassle. Moreover, veil piercing is now also rampant as a statutory exception. Conclusion The concept of lifting the corporate veil was later introduced after this case where no person could hide behind the company’s entity to commit fraud and avoid any sort of liability. A certain amount of proximity should be there to apply this concept of lifting the veil. In this case, it was decided that no illegal or sham act has been done by Mr Aron and that he was legally the creditor of the company and has a right to be paid at the winding up of the company before the unsecured creditors as his debt was secured by a charge against the assets of the company. [1]1925 AC 61 [2]1961 AC 1 [3] (1888) 40 ChD 39 [4] 1990 Ch. 433 [5] 2009 1 A.C. 1391 [6] 2009 UKHL 39 [7] 2013 CAT 13 (21 June 2013)

Sumasri

Dec 22, 2022

Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1 - case study

Court: Court of Appeal (Civil Division) Judges: Lindley LJ, Bowen LJ, and AL Smith LJ Date Decided: 8th December 1892 Facts The Defendant, the Carbolic Smoke Ball Company of London (Defendant), placed an advertisement in several newspapers on November 13, 1891, stating that its product, “The Carbolic Smoke Ball”, when used three times daily, for two weeks, would prevent colds and influenza. The makers of the smoke ball additionally offered a 100£ reward to anyone who caught influenza using their product, guaranteeing this reward by stating in their advertisement that they had deposited 1000£ in the bank as a show of their sincerity. The Plaintiff, Lilli Carlill, bought a smoke ball and used it as directed. Several weeks after she began using the smoke ball, Plaintiff caught the flu. Thereupon, her husband wrote a letter for her to the defendants, stating what had happened, and asking for £100 as promised in the advertisement. They refused and this action was brought in court before Hawkins J. and a special jury. Arguments were heard on both sides and finally, the verdict was given in favor of the plaintiff. However, the defendants appealed. Issue Whether the language in Defendant’s advertisement, regarding the 100£ reward, was meant to be an express promise or, rather, a sales puff, which had no meaning whatsoever. Judgement The Court of Appeal unanimously rejected the company’s arguments and held that there was a fully binding contract for £100 with the plaintiff Among the reasons given by the judges were - That the advertisement was a unilateral offer to the entire world The satisfying conditions for using the smoke ball constituted acceptance of the offer. That purchasing or merely using the smoke ball constituted good consideration, because it was a distinct detriment incurred at the behest of the company and, furthermore, more people buying smoke balls by relying on the advert was a clear benefit to Carbolic That the company’s claim that £1000 was deposited at the Alliance Bank showed the serious intention to be legally bound. The appeal was dismissed unanimously by all the judges and the plaintiff finally received compensation of £100. She lived to the ripe old age of 96. She died on March 10, 1942; according to her doctor, principally of old age. There was one cause noted for influenza though. Mr Roe, the owner of Carbolic Smokeball Co., continued with his aggressive marketing. This time he increased the reward to £200 following the loss of the case. This case stands for the proposition that while sales puffery in advertisements is generally not intended to create a contract with potential product buyers, in this case, it did because the defendant elevated their language to the level of a promise, by relying on their own sincerity. The particular judgement made a huge impact on English contract law. This is the most cited case in the common law of contracts mostly if the case is concerned with unilateral contracts. After this judgement, companies, and agencies are more careful about what they advertise to the world at large. It lays the foundation to contract law as all the essential elements are mentioned such as offer and acceptance, intention to form a legal relationship, etc. The case of Carlill v Carbolic Smoke Ball Company established several key principles in contract law. - Firstly, it clarified that advertisements can be considered offers that can be accepted by performance. - Secondly, it established the principle of "offer and acceptance" and demonstrated how it works in practice. - Thirdly, it confirmed the importance of consideration in contract formation and showed how reliance on an offer can be sufficient consideration. Carlill v Carbolic Smoke Ball Company is a seminal case in English contract law and remains an important case for law students to study. The case provides a clear example of how offer and acceptance works in practice and highlights the importance of clear and unambiguous advertisements in the formation of contracts.

Sumasri

Dec 13, 2022

Rylands v. Fletcher - Case Study on Strict Liability

Facts: The defendant, Rylands, had a reservoir constructed on his land by independent contractors. When the construction of the reservoir was in process, the contractors came across some old coal shafts and passages that were beneath the defendant’s land. These passages were connected to a mine on another person’s land, i.e. the plaintiff, Thomas Fletcher, but the contractors discovered that they were filled with loose soil and earth. The contractors did not pay attention to them and continued to build the reservoir over the passages. When the reservoir was complete, it was filled with water. Shortly after the water was filled in the reservoir, the water caused the reservoir to burst and entered the passages beneath the reservoir. Consequently, the water reached the plaintiff’s (Fletcher) land and burst through the mine on the land, thus flooding them. Fletcher tried pumping the water out, but his pump also burst, causing the mine to flood again. Ultimately, a mines inspector was called, and the coal shafts beneath the defendant’s land were discovered. Fletcher brought an action against Rylands as well as the landowner, Jehu Horrocks, on 4th November 1861. Issues: Whether the negligence of the contractors made the defendants liable for the damage caused? Whether the defendants were liable in spite of no negligence on their part? Judgement by Exchequer of Pleas: Mellor, J, and a special jury at the Liverpool Assizes initially heard the case, in September 1862, which led to an arbitrator being appointed by the Exchequer of Pleas in December 1864. The arbitrator stated that it was the contractors who were liable for negligence, because they were aware of the existence of the shafts, whereas Rylands had no knowledge of them, thus freeing him of liability. The case was then heard by the Exchequer of Pleas in May 1865, in which it was held that the defendants were not liable. However, there was a dissenting opinion from Bramwell B, who observed that the plaintiff had a right to the enjoyment of his land without any interference, and the water was an interference from the defendants, thus making him liable for the damages. It was the defendants who had caused the water to flow on the land of the plaintiff and had their act not been so, there would have been no discontinuation in the enjoyment of the land by the plaintiff. Appeal to the Court of Exchequer Chamber: Thomas Fletcher then appealed to the Court of Exchequer Chamber, from which the final decision arrived. The decision of the Exchequer of Pleas was overturned, and the case was ruled in Fletcher’s favour. As stated by Blackburn J, who spoke on behalf of all judges, the reality of the rule of law is that a person, who brings or collects on his land anything that is likely to cause mischief in case it escapes, then he must do so at his own peril. Such a person brings that thing on his land for his own purposes, and he, prima facie, is responsible for the consequences that may arrive as a result of the escape of such a thing. There can be exceptions if the escape is due to the plaintiff, or an act of God. But, since there is nothing of this sort that exists here, no excuse from the defendant would be sufficient. The general principle that comes to be just here is that a person who suffers loss because of the actions of his neighbour, whether it be the eating of his corn by the neighbour’s cattle, or the flooding of his mine by the water from the neighbour’s reservoir, or his residence made unhealthy by the fumes and vapours from the neighbouring land, is to be compensated as there is no fault of his own. And the such neighbour is obliged to make good the damage caused to the person whose property is destroyed, in case he is unable to keep the mischief from being caused, even though the thing is harmless if contained in his own property. Exceptions to the Rule of Strict Liability: If the escape was due to the plaintiff’s own actions and the defendant had no role to play in it. If the escape of the thing was due to an act of God. If the escape was due to an irrational or supernatural force, which is similar to an act of God but it takes into account all such events which could not have been apprehended beforehand, or events happening in rare circumstances. If the escape was due to an act of a stranger to the circumstances upon whom the defendant had no control and nor the defendant could have anticipated or controlled the situation created by the stranger Criticism: When the judgement of the Rylands v Fletcher case came out, it faced criticism within England and Wales, along with facing opposition outside. "Rylands v. Fletcher" was criticized by some for several reasons: Unclear Definition of "Unnatural Use": The case established the principle that an individual who makes an "unnatural use" of their land may be strictly liable for harm caused by that use. However, the definition of "unnatural use" was not well-defined, and the courts have struggled to apply it in practice. As a result, the principle has been criticized as being too vague and uncertain. Overly Broad Application: Some critics argue that the principle established in Rylands v. Fletcher has been applied too broadly, leading to strict liability being imposed in cases where it was not intended. This has led to confusion and uncertainty in the law, and has been seen as an unjust outcome in some cases. Conflict with Fault-Based Liability: The principle of strict liability established in Rylands v. Fletcher conflicts with the traditional principle of fault-based liability in tort law. This has led to criticism that the principle is unfair, as it imposes liability without fault, and has the potential to discourage individuals from engaging in lawful activities for fear of being held liable for harm caused by those activities. Lack of Deterrent Effect: Some argue that strict liability does not have the deterrent effect that is often associated with fault-based liability. This is because strict liability imposes liability regardless of fault, and therefore, does not provide a disincentive for individuals to engage in activities that pose a risk of harm. Despite these criticisms, the principle of strict liability established in Rylands v. Fletcher remains an important part of the law of torts, and continues to be applied in a wide range of cases. However, the criticisms of the case highlight the importance of clarifying the definition of "unnatural use" and ensuring that the principle of strict liability is applied in a way that is consistent with the underlying principles of tort law. The American interpretation mainly revolved around the judgement being economically harmful. In Canada, the case of Ernst v. EnCana Corporation was inspired by the rule of Rylands v Fletcher. In Scotland, the principle was applied initially, in the case of Mackintosh v. Mackintosh but it came to an end in RHM Bakeries v. Strathclyde Regional Council. It was disregarded as being a heresy that had to be erased. In India, the rule became ineffective with the onset of time, and the Supreme Court, in M. C. Mehta v. Union of India, evolved the principle of absolute liability, leaving no loopholes to seek big enterprises that caused extensive damage and escape from liability. MC Mehta v. Union of India (1987) and subsequent related cases have helped to resolve some of the criticisms associated with the principle of strict liability established in Rylands v. Fletcher. Clarification of "Unnatural Use": In MC Mehta v Union of India, the Supreme Court of India interpreted the principle of strict liability established in Rylands v. Fletcher to include not only "unnatural use" of land, but also "ultrahazardous" activities that pose a significant risk of harm to others. This clarification of the definition of "unnatural use" has provided greater certainty and clarity in the application of the principle of strict liability. Expansion of Strict Liability: In MC Mehta v Union of India, the Supreme Court of India expanded the scope of strict liability to include not just harm caused by activities on land, but also harm caused by activities in the air and water. This expansion of strict liability has helped to address concerns that the principle established in Rylands v. Fletcher was overly narrow and outdated. Environmental Protection: MC Mehta v Union of India have been significant in the context of environmental protection, as the cases have been used to impose strict liability on polluters and other industries that pose a significant risk of harm to the environment. This has been seen as a positive development, as it has helped to ensure that individuals and businesses are held accountable for the harm that they cause to the environment. MC Mehta vs Union of India, along with related cases, have helped to resolve some of the criticisms associated with the principle of strict liability established in Rylands v. Fletcher. The cases have provided greater clarity and certainty in the definition of "unnatural use" and have expanded the scope of strict liability to include not just harm caused by activities on land, but also harm caused by activities in the air and water. Additionally, the cases have helped to promote environmental protection by imposing strict liability on those who cause harm to the environment.

Sumasri

Sep 12, 2022

10 Landmark International Constitutional Cases

Constitutional Law is one of the most sought-after subjects in law. While India has a comprehensive constitutional framework (the largest in the world), there are several other Constitutions which are substantive, including that of the United States of America and Canada. In this article, the authors attempt to highlight 10 landmark constitutional cases from a few such jurisdictions. JURISDICTION: UNITED STATES OF AMERICA 1. Marbury Vs. Madison Court: United States Supreme Court Citation: 5 US 137 (1803) Year: 1803 Facts: John Adams lost to Thomas Jefferson in the 1800 presidential elections. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act of 1801, which established new courts, and additional judges, and increased the president's authority over judicial nominations. Adams and his party tried to frustrate his successor by using the Act to appoint 16 new circuit judges and 42 new justices of the peace. The Senate gave its approval to the appointments, but they would not take effect until the Secretary of State gave them their commissions. In the District of Columbia, William Marbury had been named Justice of the Peace; however, his commission had not yet been delivered. Marbury asked the Supreme Court to order James Madison, the newly appointed secretary of state, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions. Issues: Were the plaintiffs entitled to their commissions? Can they file a legal claim for their commissions? Does the Supreme Court have the power to mandate that their commissions be delivered? Judgement: The Court determined that Madison's refusal to provide the commission was illegal, but it did not issue a writ of mandamus requiring Madison to produce Marbury's commission. Instead, the Court ruled that the Judiciary Act of 1789 provision that allowed Marbury to file his case with the Supreme Court was inherently unconstitutional because it attempted to go beyond what Article III, Section 2 had established as the Court's original authority. Marshall clarified that the right approach to seeking redress was through a writ of mandamus, but concluded that the Court could not issue one. According to Marshall, the Judiciary Act of 1789 was unconstitutional. Due to the Supremacy Clause, which puts the Constitution ahead of all other laws, Congress lacked the authority to alter the Constitution through regular legislation. Marshall went on to say that a writ of mandamus was the appropriate route to seek redress, but concluded that the Court could not issue one. Marshall argued that the Judiciary Act of 1789 was unconstitutional. The Supremacy Clause, which places the Constitution before laws, prevents Congress from changing the Constitution through normal legislation. By making this ruling, Marshall created the notion of judicial review, the authority to declare a law unlawful. 2. Miranda Vs. Arizona Court: United States Supreme Court Citation: 384 US 436 (1966) Year: 1966 Facts: This case combines four cases in which the defendant admitted guilt after being subjected to a range of interrogation tactics without being advised of his Fifth Amendment rights. Ernesto Miranda was arrested in his home on March 13, 1963, and taken to the police station where he was questioned about a kidnapping and rape. Miranda gave a written confession to the police after a two-hour of interrogation. Despite the defence attorney's objections and the police officers' admission that they did not advise Miranda of his right to an attorney present during the interrogation, the written confession was accepted into evidence at the trial. Miranda was found guilty by the jury. Supreme Court of Arizona said upon appeal that Miranda did not expressly request legal representation, so his constitutional rights were not violated. Issues: Does the Fifth Amendment's protection against self-incrimination apply to police interrogation of a suspect? Judgement: In an opinion penned by Chief Justice Earl Warren, five justices made up the majority. Due to the coercive nature of police custodial interrogation, the Court ruled that no confession could be used against a suspect in court under the Fifth Amendment's prohibition against self-incrimination and the Sixth Amendment's right to an attorney unless the suspect was made aware of his rights and knowingly and willingly waived them. 3. Brown Vs. Board of Education Court: United States Supreme Court Citation: 347 US 483 (1954) Year: 1954 Facts: This case involved the consolidation of cases involving the racial segregation of public schools in Kansas, South Carolina, Virginia, Delaware, and Washington, D.C. Due to legislation authorizing racial segregation in public education, African American pupils had been refused admission in each of the cases. The Equal Protection Clause of the Fourteenth Amendment, they said, was violated by this form of segregation. According to Plessy v. Ferguson, which determined that racially segregated public facilities were acceptable as long as they provided equal access to both blacks and whites, the plaintiffs were denied redress in the lower courts. Issues: Does the segregation of public schools solely on the grounds of race violate the Equal Protection Clause of the Fourteenth Amendment? Judgement: The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment's safeguards is inevitably violated by "separate but equal" facilities. According to the court, racial segregation in public schools instilled a sense of inferiority in African American children, which had a severe negative impact on their education and personal development. 4. Roe Vs. Wade Court: United States Supreme Court Citation: 410 US 113 (1973) Year: 1973 Facts: In 1970, Jane Roe sued Henry Wade, the district attorney of Dallas County, Texas, where she resided, to overturn a state law that made abortions prohibited unless performed on a woman's life-saving instruction. Roe claimed in her case that the state laws violated her right to personal privacy, which is guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, and were unconstitutionally vague. Issues: Does a woman's right to have an abortion recognized by the Constitution? Judgement: The court ruled that while a woman's decision to end her pregnancy is covered by her right to privacy, this right is not absolute and may be limited by the state's legitimate interests in safeguarding the woman's health, upholding appropriate medical standards, and protecting human life. The court set forth the following: Before the end of the first trimester of pregnancy, the state may not interfere with or regulate an attending physician's decision, reached in consultation with his patient, that the patient's pregnancy should be terminated; from and after the end of the first trimester and until the point in time when the foetus becomes viable, the state may regulate the abortion procedure only to the extent that such regulation relates to the preterm birth. JURISDICTION- MALAYSIA 5. Indira Gandhi Vs. Pengarah Jabatan Agama Islam Perak Court: Federal Court of Malaysia Citation: [2018] MLJU 69 Year: 2018 Facts: The respondent, Patmanathan a/l Krishnan, was married to the appellant, Indira Gandhi a/p Mutho. They were married under the Law Reform (Marriage and Divorce) Act of 1976 ("civil marriage"), and they had three children. The respondent subsequently converted to Islam. A dispute arose after the respondent converted the children to Islam and got custody of the children from the Syariah Court without the appellant's consent. The Registrar of Muallaf delivered to the appellant three certificates of conversion to Islam and a document proving that the children were registered as Muslims. The Administration of the Religion of Islam (Perak) Enactment of 2004 (the Perak Enactment) mandates the two sentences of the Affirmation of Faith, but the children were not present before the Registrar and did not say them. The appellant submitted a judicial review application to the High Court, where it was granted an order to nullify the Certificates. The appellant's divorce petition for a civil marriage was approved, and she was also given custody of the three children. The Order was quashed by the Court of Appeal following an appeal. The appellant, aggrieved, filed an appeal. Issues: Whether the High Court has the authority to review the actions of the Registrar? Whether a child of a civil marriage who is less than 18 must follow the law before the registrar records his conversion. Whether the Certificates can be granted without the approval of the surviving mother and father of a child from civil marriage? Judgement: The Federal Court decided that the High Court has the authority to review the Registrar's judgement because such judicial authority is fundamental to the Federal Constitution's basic structure and is not disregarded by article 121(1A) of the Federal Constitution. The Federal Court further declared that because articles 96(1) and 106(b) of the Perak Enactment are not being met, the Registrar lacks authority to issue the Certificates. It was determined that the appellant and the husband must both agree before the Certificates can be issued based on a purposive interpretation of Article 12(4) read with the Eleventh Schedule of the Federal Constitution and the application of sections 5 and 11 of the Guardianship of Infants Act 1961. JURISDICTION- CANADA 6. Schachter Vs. Canada Court: Supreme Court of Canada Citation: [1992] 2 SCR 679 Year: 1991 Facts: Shalom Schachter applied for benefits to be able to care for his child once his wife returned to work. He first asked to be granted maternity benefits under section 30 of the Unemployment Insurance Act of 1971. Later, he modified his request to include "paternity benefits" under Section 32 of the Act, which was granted to adoptive parents and may be shared between them. Mr Schachter's request was denied and A Board of Referees rejected his appeal. He filed a lawsuit in federal court, claiming that the denial of benefits was a violation of his rights to equality protected by section 15 of the Charter. Issues: Does Section 52(1) of the Constitution Act need to be invoked if it is determined that Section 32 of the Unemployment Insurance Act generates unequal benefits? Does Section 24(1) of the Charter grant the court the authority to rule that natural parents are entitled to benefits under Section 32 on the same terms as adoptive parents? Judgement: The Federal Court found that Section 32 was discriminatory because it treated biological parents and adoptive parents differently. The S. 32 benefits were extended to natural parents by the court. The decision was upheld by the Federal Court of Appeals. However, the Supreme Court decided not to extend the benefits to biological parents. According to the majority of the court, the benefit was not sufficiently inclusive. However, the provision shouldn't be immediately struck down because doing so would deny many others access to it while providing Mr Schacter with no benefit at all. 7. R Vs. Big M Drug Mart Ltd. Court: Supreme Court of Canada Citation: [1985] 1 SCR 295 Year: 1985 Facts: Police officers from Calgary visited the Big M location on a Sunday in May 1982 that was open to the public. In addition to the sale of groceries, plastic cups, and a bicycle lock, they saw several other transactions. Then, Big M was charged with unlawfully selling goods on a Sunday in violation of Section 4 of the Lord's Day Act. The charge was dismissed in a 1983 trial by a Provincial Court judge who ruled that the Lord's Day Act was unconstitutional. The Alberta Court of Appeal rejected the Crown's appeal as well. The Crown then appealed to the Supreme Court of Canada. Issues: What is religion according to Section (2)(a)? Is this infringement of Section 2(a) protected by Section (1)? Judgement: The Supreme Court ruled that the legislation was unconstitutional and violated section 2 of the Canadian Charter of Rights and Freedoms because it lacked a true secular foundation and served only to create an essentially religious state requirement. As a result, the law was declared invalid. Section 52 of the Constitution Act of 1982, in contrast to Section 24 of the Charter, which is for those whose rights are violated, specifies that unconstitutional laws can be deemed invalid, which allowed the drug store to prevail. Since a company cannot practise any religion because it is not a natural person, there was no infringement on the corporation's right to freedom of religion. 8. R Vs. Oakes Court: Supreme Court of Canada Citation: [1986] 1 SCR 103 Year: 1986 Facts: David Oakes, the respondent, was accused of violating Section 4(2) of the Narcotic Control Act by unlawfully possessing a drug for trafficking (NCA, since replaced by the Controlled Drugs and Substances Act in 1996). Eight 1-gram vials of cannabis resin in the form of hashish oil were among the items the police discovered in Oakes' possession. The officers found $619.45 after taking him to the police station and conducting additional searches there. The accused denied drug trafficking and admitted to the police that he spent $150 on 10 vials of hash oil for personal use. He claimed that the cash they had discovered came from a worker's compensation cheque that he had cashed. The defendant chose not to testify throughout the trial. The judge decided that there was evidence of drug use. The accused then filed a motion asserting that the NCA's Section 8 provision, which required the accused (Oakes) to demonstrate that he did not have the drug for trafficking, violated his constitutional right to a presumption of innocence until proven guilty under Section 11(d) of the Canadian Charter of Rights and Freedoms. His argument was successful at trial and at the Court of Appeal, which held chat the reverse onus provision in Section 8 was unconstitutional. The Crown appealed to the Supreme Court of Canada. Issues: Does Section 8 of the Narcotic Control Act impose a presumption of guilt in contravention of Section 11(d) of the Charter? Judgement: The Supreme Court of Canada concluded that, even though drugs are a scourge, Section 8 of the Narcotic Control Act violates the right to a presumption of innocence guaranteed by Section 11(d) of the Canadian Charter of Rights and Freedoms. According to Section 8, a person is believed to have planned to traffic in drugs if they are discovered in their possession. This amounts to a restriction on rights and freedoms that, under section 1 of the Charter, cannot be justified in a society that is free and democratic. 9. Vriend Vs. Alberta Court: Supreme Court of Canada Citation: [1998] 1 SCR 493 Year: 1998 Facts: Vriend was dismissed from his job as a lab coordinator at King's College, a private, Christian university, for no other reason than his sexual orientation. Mr Vriend attempted to appeal the dismissal but was unsuccessful. He also attempted to file a complaint with the Alberta Human Rights Commission but was unable to do so because the Individuals' Rights Protection Act (the IRPA) does not list sexual orientation as a protected ground. Vriend and others filed a motion to the Alberta Court of Queen's Bench asking the court to declare that sexual orientation is read into the IRPA as a protected ground. The trial judge agreed and granted the declaration; however, the Alberta Court of Appeal reversed the judgement. Mr Vriend and the others filed an appeal with the Supreme Court of Canada. Issues: Does the Charter include government omissions, such as decisions not to include particular provisions in legislation? Judgement: The Supreme Court of Canada ruled that the exclusion of sexual orientation as grounds for discrimination in the act created a disparity that prevented people from receiving equal benefits and legal protection based on their sexual orientation. The court ruled that this was a violation of Section 15 of the charter that could not be justified under Section 1 and ordered that sexual orientation be incorporated into provincial legislation. JURISDICTION: SOUTH AFRICA 10. S Vs. Makwanyane Court: Constitutional Court of South Africa Citation: 1995 (6) BCLR 665 Year: 1995 Facts: The Witwatersrand Local Division of the Supreme Court found the two accused guilty on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. On all counts of murder, they were given the death penalty, and on the others, they got long prison terms. They filed an appeal with the Appellate Division of the Supreme Court challenging their convictions and sentences. The Appellate Division dismissed the appeals against the convictions and concluded that, given the circumstances of the murders, the defendant should be given the harshest sentence permitted by law. Issues: Is the death sentence as it is stated in the Criminal Procedure Act Section 277(1)(a) constitutionally permissible? Or is it permitted under the Constitution? What are the implications of section 241(8) of the interim constitution? Judgement: The court decided that the death penalty violates the fundamental rights to which every human being is entitled and that it does so within the parameters of the constitutional provisions. Section 277(1)(a) of the Criminal Procedure Act was declared unconstitutional. LegalBots.in wishes you all the best!

Sumasri

Aug 29, 2022

Top 10 Contracts Case Laws Every Law Student Should Know

Contract law is one of the fundamental legal subjects that are taught to law students in their first or second year of law school. Apart from being an interesting subject, a sound understanding of contract law also creates a strong foundation for other subjects such as Company law, Mergers, Acquisitions, etc. which involve contracts in some manner or form. In this article, we have covered the Top 10 landmark cases in contract law that deal with the fundamental principles of contract law. 1. Balfour Vs. Balfour Court: Court of Appeal (England and Wales) Citation: (1919) 2KB 571 Year: 1919 Facts: Mr. Balfour was a civil engineer who served as the Director of Irrigation for the Government of Ceylon (now Sri Lanka). Mrs. Balfour was living with him. They both went to England in 1915 when Mr. Balfour was on leave. However, Mrs. Balfour had rheumatoid arthritis. The weather in Ceylon would be bad for her health, therefore her doctor urged her to stay in England. Mr. Balfour verbally agreed to pay her £30 every month until she returned to Ceylon as his boat was about to set sail. However, when their relationship deteriorated over time, Mr. Balfour stopped paying Mrs. Balfour the required amount of maintenance. In a letter to his wife, Mr. Balfour made the suggestion that they dissolve their marriage. They later had a legal separation, which meant they were divorced. In 1918, Mrs. Balfour filed a lawsuit against Mr. Balfour for failing to pay the sum he was required to in court. Issues: Did Mr. Balfour ever intend to enter into some kind of agreement with his wife, Mrs. Balfour? Is the contract between Mr. and Mrs. Balfour actually enforceable? Judgement: The appeal by Mr. Balfour was successful, and the court decided that the wife and husband had no legal relationship or contract. By looking at the conditions under which the contract was drafted and executed, it is possible to determine if the parties intended to establish a legal relationship. Therefore, Mr. Balfour was not legally bound to pay money to Mrs. Balfour. 2. Lalman Shuka Vs. Gauri Dutt Court: Allahabad High Court Citation: (1913) 11 ALJ 489 Year: 1913 Facts: The plaintiff worked as a minimum for the defendant. The defendant’s nephew absconded, and the plaintiff ordered to find out the missing boy. When the plaintiff was not present, the defendant published handbills with a prize of Rs. 501 for anyone that can find the boy. He was found by the plaintiff, who then claimed payment. At the time he found the boy, the plaintiff was unaware of the handbills. The plaintiff was duly rewarded with 2 sovereigns at Hardwar and Rs. 20 on coming back home. He filed a lawsuit against the defendant after learning about the reward received it. Issues: Whether a contract exists or if the circumstances qualify as a contract between the parties. Judgement: The Honourable High court concluded after analyzing all the relevant facts that the proposer must have knowledge of and consent from the offeree in order for a contract to be legally binding. The plaintiff in this case was unaware of the reward prior to performing the act. He only came to know about it later, in which case there was no possibility of accepting the offer. There was therefore no contract. Plaintiff was therefore not entitled to receive or claim the reward. 3. Carlill Vs. Carbolic Smoke Ball Company Court: Court of Appeal (England and Wales) Citation: (1893) 1 QB 256; (1892) EWCA Civ 1 Year: 1893 Facts: The Pall Mall Gazette carried advertisements from the Carbolic Smoke Ball Company, for their smoke ball product. In the advertisement, they guaranteed to pay 100 pounds in compensation to anyone who catches the flu after using their ball as directed for two weeks, three times per day. Additionally, it was stated in the advertisement that they had deposited £1,000 with the Alliance bank as an assurance. After reading the advertisement, Mrs. Carlill bought the smoke balls and utilised them according to the instructions, but she afterward had the flu. After the defendant rejected the plaintiff's claim, the plaintiff filed a lawsuit against them to try to get the money refunded. Issues: Whether the agreement between the parties have any legal force or effect? Whether a formal notification of acceptance was necessary for the contract in question? Whether Mrs. Carlill was required to inform the Carbolic Smoke Ball Company that she accepted the offer? Whether Mrs. Carlill gave anything in return for the 100 pounds that the company offered as a reward? Judgement: The Court of Appeal unanimously rejected the company's objections and decided that Mrs. Carlill and the company had a legally enforceable contract for £100. The three judges cited many reasons, including the following: (1) The advertisement represented a unilateral offer to the entire world; (2) Meeting the requirements for deploying the smoke ball amounted to acceptance of the offer. (3) That buying or simply using the smoke ball constituted good consideration (4) The company's assertion that £1000 was placed at the Alliance Bank demonstrated a sincere desire to be held legally responsible. 4. Mohori Bibee Vs. Dharmodas Ghose Court: Calcutta High Court Citation: (1903)ILR30Cal539(PC) Year: 1903 Facts: Dharmodas Ghose, the respondent, was a minor who obtained a loan from Brahmodutt, a lender in Calcutta, by claiming to be an adult and having executed a mortgage deed in his favour. The fact that the respondent was a minor was discovered at the time the mortgage was being examined for an advance payment. As a result, Kedarnath, the agent of Brahmodutt, cannot execute the deed. But still, he executed a mortgage deed from Dharamdos Ghose. The minor then filed a lawsuit against Brahmodutt through his mother and legal guardian and urged the court to nullify the mortgage deed because he was a minor when it was executed. The mortgage deed was revoked by the trial court after accepting the respondent's appeal. The High Court also dismissed the appeal against the decision and then the appellant turned to the Privy Council to forward his case. When this appeal was submitted, Brahmodutt had passed away So, so his successor, Mohori Bibee, took his place as a result. Issue: Whether the contract is void or not? Whether the defendant was bound to repay the deed amount? Whether the deed violated Sections 2, 10, and 11 of the Indian Contract Act of 1872? Judgement: Privy Council dismissed the appeal and held that there is no contract between the minor and the major person. The contract that was made or commenced shall likewise be void and not valid in the eyes of the law because the minor was ineligible to make such a mortgage. Therefore, as, he was not bound by the commitment that was expressed in a contract, Dharmodas Gosh cannot be made to return the sum of money that was advanced to him. 5. Chinnaya Vs. Ramayya Court: Madras High Court Citation: (1882) ILR (1876-82) 4 Mad 137 Year: 1987 Facts: An elderly widow was providing funds from her estate to her sister (the plaintiff). Later, through a deed of gift that was officially recorded by the relevant authorities, the elderly woman passed her property to her daughter (the defendant). The deed was executed based on the condition that the defendant would be paying some Rs. 653/- annually to the old woman’s sister, the plaintiff. Thus, the defendant and plaintiff reached an agreement in which the defendant committed to pay the agreed-upon sum each year. An elderly widow was providing funds from her estate to her sister (the plaintiff). Later, through a deed of gift that was officially recorded by the relevant authorities, the elderly woman passed her property to her daughter (the defendant). The defendant agreed to execute the deed in exchange for paying the plaintiff, the elderly woman's sister, a number of Rs. 653/- annually. Thus, the defendant and plaintiff reached an agreement in which the defendant committed to pay the agreed-upon sum each year. The defendant, however, refused her promise to the plaintiff regarding the annuity after the elderly woman passed away. To get the annuity that the respondent had promised, the plaintiff sued the defendant. Issues: Whether the plaintiff be able to sue the defendant for the sum promised in a contract where the mother of defendant (the plaintiff's sister) provided the consideration? Judgement: The Court held that the agreement enabling the respondent's mother to gift her the estate and the arrangement to pay an annuity is a simultaneous agreement. Therefore, in light of the definition and justification of compensation provided by section 2(d) of the Indian Contract Act of 1872, each of these agreements shall be regarded as a single transaction. Therefore, the respondent shall be obligated to pay the said payment because she consented to do so while accepting the estate as a gift from her mother. 6. Hyde Vs. Wrench Court: Rolls Court Citation: (1840) 49 ER 132 Year: 1840 Facts: The defendant, Mr. Wrench, offered to sell the farm he owned to the complainant, Mr. Hyde. He proposed to sell the house for £1,200, but Mr. Hyde rejected his offer. The defendant decided to write the complaint again with an offer to sell the farm to him for £1,000 this time. He was very clear that this was his final offer for the property. In response, Mr. Hyde made a letter offer of £950 for the land. Mr. Wrench rejected this and confirmed it with the complaint. Mr. Hyde subsequently decided to accept the previous offer of £1,000 to purchase the farm but Mr. Wrench refused to sell his farm. So, Mr. Hyde filed a suit against him pleading for specific performance of the contract. Issues: Whether the parties had a valid contract, and if a counter offer was made in discussions, whether the original offer would still be valid? Judgement: The court rejected the claims and held that Mr. Hyde and Mr. Wrench had not entered into a legally enforceable agreement about the property. The previous offer is superseded and wiped out when a counteroffer is made. This initial proposal is no longer on the table or available. In this instance, Mr. Hyde revoked his initial offer of £1,000 when he made the £950 offer and was unable to retract and accept. 7. Harvey Vs. Facey Court: Judicial Committee of the Privy Council Citation: (1893) AC 552 Year: 1893 Facts: Harvey, who was in charge of the Jamaican partnership firm, wanted to purchase the property owned by Facey, who was also negotiating for it with the mayor and council of Kingston City. In order to prevent the property from being sold to Kingston City, the appellant sent a telegram about the acquisition to Mr. Facey on October 6, 1893, who was traveling the train at the time. Telegram said “Will you sell us Bumper Hall Pen? Telegraph lowest cash price; answer paid. The lowest pricing for a Bumper Hall Pen is £900, in response to Mr. Facey. Mr. Harvey responded in turn, saying, "We agree to purchase Bumper Hall Pen for the nine hundred pounds you have asked. Send us your title deed as soon as possible so we can take ownership right away. Then Mr. Facey had a change of mind and refused to sell the property to Mr. Harvey. Mr. Harvey then filed a lawsuit against Mr. Facey, asserting that they had a contract and said that the telegram was an offer and he accepted it. Issues: Did Mr. Facey explicitly offer Mr. Harvey the sale of the property in exchange for £900, and is such an offer capable of being accepted? Was the contract valid or not? Judgement: According to the Privy Council, the parties have never had a contract. The initial conversation does not constitute an offer that could be accepted, it was merely a request for information. As a result, the telegram by Mr. Facey was not credible. It was determined that Mr. Facey's telegram is just a piece of information. Mr. Facey never presented a proposal that could be accepted. 8. Hadley Vs. Baxendale Court: The Court of Exchequer Citation: (1854) 9 Exch 341 Year: 1854 Facts: A steam-driven mill owned by the plaintiff has a fractured crankshaft. The broken piece had to be transported from Gloucester, in the west of England, to Greenwich, close to London, where it would be used as a model to create a replacement piece. Due to Plaintiff's lack of a replacement piece and the fact that the engine was out of order, the piece needed to be delivered as soon as possible. The plaintiff filed a claim for the lost profits brought on by Pickfords, the shipping company, who was delayed in delivering the part. Issues: Whether the plaintiff was entitled to damages for lost profits and the defendant liable for breach of contract? Judgement: The court ruled in favor of the defendant, holding that a party could only successfully sue for losses brought on by a breach of contract if the loss is reasonably viewed to have resulted naturally from the breach or if the possibility that such losses would occur should have been reasonably anticipated by the parties at the time the contract was formed. Baxendale was not responsible for the mill's lost profits because he had not responsibly foreseen them and Hadley had not informed him of their possibility. 9. Felthouse Vs. Bindley Court: Court of Common Pleas Citation: (1862) EWHC CP J 3 Year: 1862 Facts: Felthouse negotiated with his nephew to buy a horse. A pricing discrepancy occurred because the uncle offered less than the nephew wanted. The nephew received a definite offer from the uncle in January, but neither a response nor any action was taken because the horse remained in the nephew's possesion. In spite of the nephew's instructions that the horse be reserved, the horse was sold in an auction in which the nephew sold all of his farm stock in February. To reclaim the horse, Felthouse filed a lawsuit against auctioneer Bindley. Issues: Whether the plaintiff and defendant had a valid contract? Whether a response of silence or rejection is regarded as acceptance? Judgement: The Court decided that because there was no contract that was intended to be accepted, Paul Felthouse had no ownership rights to the horse from the beginning. It is the responsibility of accepting party to inform the offeror of their acceptance; an acceptance of the offer cannot be inferred from silence alone. The acceptance communication was finished on February 27th, the first date, but the auction had already happened on February 25th, proving that Felthouse had no interest in buying the property. 10. Durga Prasad Vs. Baldeo Court: Allahbad High Court Citation: (1881) ILR3ALL221 Year: 1880 Facts: The complainant demanded that the district collector establish a number of outlets in his neighbourhood. The Defendant paid rent to those establishments in exchange for their business. At the same time, the rent was affixed. Later, the defendant informed the plaintiff that in return for the plaintiff's construction of the building through the expenditure of vast sums of money, he would pay him a 5 percent commission on all goods that he will supply from the shop. On the other side, the claimant chose not to pay the commission. Durga Prasad thereafter filed a lawsuit against the shop owners who had denied to pay the commission. Issues: Whether the Contract is valid or not? Whether the Contract is enforceable by law? Judgement: The court dismissed the case after finding no merit in the claims of plantiff. This decision was made in light of the absence of a prominent and recognized consideration in this situation, which led section 2(d) of the Indian Contract Act, 1872 to reject the eligibility of agreement for recognition as a contract. Section 25 of the Act states the absence of a consideration resulted in the contract being termed as a void contract. Additionally, the judges decided that there was no prospect for an appeal because the Act clearly states that consideration is a necessary component of a contract and the appeal was rejected by the court.

Sumasri

Jun 03, 2022

Johnny Depp and Amber Heard Defamation Trial

On Wednesday, June 1, the Pirates of the Caribbean actor, Johnny Depp won his defamation trial against his former wife Amber Heard. The explosive celebrity defamation trial has become a media sensation. Depp was awarded $15 million in damages, including $5 million in punitive damages, which the judge capped to $350,000, the legal limit in Virginia. In total, he is entitled to $10.35 million. The jury awarded Heard $2 million, with the finding that a former Depp attorney, Adam Waldman, had defamed her. Let us read how this multi-million dollar defamation case unfolded. The London Trial In 2020, Johnny Depp lost his U.K court case after a judge, in the absence of a jury, concluded that Depp assaulted his ex-wife Amber Heard on a dozen occasions. The libel case at London court began in 2018, centred around an article in one of U.K’s biggest tabloids, “The Sun”, which claimed Johnny Depp was a “wife beater”. Depp sued both the Publisher and The Sun’s executive director Dan Wotton for libel. After a three-week trial, Justice Andrew Nicol ruled against Depp in 2020, saying that the British newspaper had presented substantial evidence to show that Depp had been violent against Heard. Depp and his legal team tried to get the ruling overturned with an appeal but Judge Nicol refused to grant Depp the permission to appeal against his judgement stating that proposed grounds do not have a reasonable prospect of success. The judge also ordered Depp to make an initial payment of $841,733 to The Sun, to cover its legal fees. The Virginia Trial The trial in Virginia has covered the same ground. Depp and Heard’s defamation lawsuit began on 11 April 2022. Depp’s suit against Heard alleges that she defamed him, in December 2018, by writing an op-ed in The Washington Post claiming to be a survivor of domestic sexual violence. The trial took place in Fairfax County courthouse which is located in Virginia, US. Depp sued her in that area as the online edition of The Washington Post is published via servers in the County. However, Heard’s attorneys tried to move the trial to California but the major reason for Depp’s attorney to sue in Virginia was because of the State’s anti-SLAPP legislation, which is not as wide-ranging as in California. SLAPP stands for Strategic Lawsuits Against Public Participation. Anti-SLAPP laws are intended to prevent people from using courts and the potential threat of a lawsuit, to intimidate people who are exercising their first amendment rights. Also, the presence of a jury which was absent in the U.K. is a strong reason for Depp suing his ex-wife in the US. While Johnny Depp wasn’t directly named in the newspaper article, the jury found that it contains clear implication by Amber Heard that he is a domestic abuser. He sued Heard seeking damages not less than $50 million for the false allegation, on the other hand Heard filed a counterclaim against Depp of $100 million for nuisance and immunity from his allegations. Contentions of the Parties Heard’s lawyer, J. Benjamin Rottenborn claimed that this lawsuit is centred around the question of whether Heard was exercising her First Amendment right to free speech by writing a statement for The Washington Post about her experience with domestic violence. On the other hand, Depp’s lawyer Benjamin Chew accused Heard of ruining Depp’s career, resulting in him being alienated from producers who once favoured the movie star. On 20 April 2022, Depp on his first stand testified that the real abuser in their relationship was his ex-wife Amber Heard, stating that her verbal attacks would turn into violence. Attorneys for Depp laid out evidence of Heard’s alleged abuse while Heard’s lawyers focused on Depp’s past drug and alcohol use. Depp stated that while he was filming his movie franchise “Pirates of the Caribbean” in Australia in 2015, he would lock himself up in the bathroom to avoid having a physical altercation over instigated verbal attacks by Heard. During that argument Depp said a large bottle of vodka was thrown at him by Heard, which made contact with his hand, slicing off his middle finger. Depp also testified that in a fight in 2016, Heard was responsible for faecal matter found on their shared bed after Depp threatened to end their marriage. When Depp and Heard reached a divorce settlement in 2016, Heard announced that she would donate her entire $7 million settlement money to two charity organisations, i.e, American Civil Liberties Union and Children’s Hospital Los Angeles. However, the organisation testified that only one instalment was transferred by Amber Heard directly. It was also alleged that an amount was also transferred from the bank account of Elon Musk in the name of Heard. Amber Heard took her first stand on 4 May 2022, when she stated that to her surprise, Depp slapped her three times during a conversation about his tattoo. This was the first time she got hit by him to which the actress was in shock and did not know how to respond. Heard testified that in March 2013, after consuming a large amount of cocaine and hard liquor, Depp grabbed one of her pet dogs and held it out of a moving car window which created discomfort and showed cruelty towards the animal. She also alleged that in the same year, Depp did a cavity search on her while looking for his cocaine. According to her, Depp was harming himself by cutting his arms during fights by the end of 2016. Heard on her stand painted a picture of a man who oscillated between active addiction and sobriety, which made it hard for her to continue the relationship. Depp’s team leaned on the difference between Depp’s and Heard’s history. While previously, Depp had been accused of property damage and verbal threats, he had never been accused of the kind of violence that is claimed by Heard. However, Heard has some minor accusations of violence to account for, focusing on a 2009 incident where Heard had a verbal fight with Depp’s then-girlfriend, that turned into violence from the side of Heard. Laurel Anderson, a marriage counsellor who counselled Depp and Heard during their marriage, also testified at the Fairfax trial. She considered their marriage as a dynamic one because of ‘mutual abuse’. Anderson testified that she saw Heard bruised after altercations with Depp, and that Heard told her she had initiated physical fights with Depp on multiple occasions. She said she believed, but was not certain, that Depp had also initiated physical fights with Heard. Both Depp and Heard have said that they experienced physical abuse as children, and Anderson’s theory is that their relationship pushed them back into toxic childhood patterns, with each abusing the other and neither one ultimately more responsible than the other. On 24 May 2022 Heard’s team rested its case, while Depp’s team requested the Circuit Court Judge Penny Azcarate to dismiss Heard’s countersuit, which was held rejected. On 25 and 26 May both Depp and Heard returned to the stand respectively, before closing arguments, expressing their disappointment and grief against one another’s acquisitions. On 27 May the jury heard closing arguments and started deliberating. The Verdict The jury comprised of seven members and two alternates reached a verdict on 1 June 2022. Unanimously the jury favoured Depp and found that Heard had defamed him. The jury awarded $5 million to Depp in punitive damages and $10 million in compensatory damages. Jurors also concluded that part of Heard’s counterclaim had merits. They rejected two of Heard’s three counts but found she was defamed by Depp's lawyer who had used foul language against her, and hence the jury awarded her $2 million. The jurors’ first count was against Heard considering that she made or published the article in The Washington Post against Depp, knowing that it would be defamatory for him. The jurors’ second count against Heard was based on the defamatory statement in The Post: “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out”, which clearly indicated Depp being an abuser without any evidence. As with the other two counts, in the third count against Heard, the jurors found Heard had defamed Depp with “actual malice” as there was clear and convincing evidence that Heard either knew the article she made in The Washington Post in 2018 was false or acted with reckless disregard for the truth. Heard levied three counts of defamation against Depp, saying she’d been repeatedly defamed by his former attorney Adam Waldman, who called Heard’s abuse allegations a hoax. Jurors considered a statement from Waldman that appeared on The Daily Mail’s website on 8 April 2020, in which Adam Waldman stated that Amber Heard and her friends in the media use fake sexual-violence allegations against Depp to ruin his public image. However, in the first count against Depp, the jurors concluded that Heard’s attorney has not proven all the elements of defamation. Heard scored her only victory over a statement Waldman gave to The Daily Mail in the same 2020 article. He accused Heard and her friends of fabricating abuse allegations. Hence for the second count against Depp, the jurors agreed with Heard’s attorneys that Waldman’s statement was false and defamatory and that he’d acted with actual malice. The final count against Waldman involved a statement from the same article: “We have reached the beginning of the end of Ms. Heard’s abuse hoax against Johnny Depp.” Jurors concluded Heard’s lawyers had not proven the statement to be defamatory.

Priyanka Mangaraj

May 30, 2022

Donoghue v. Stevenson - Case Brief

Citation - [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139 Donoghue v. Stevenson, a Scottish dispute, is a famous case in English law that was instrumental in shaping the law of tort and introduced the doctrine of negligence. It is a landmark case in tort law. The wider importance of the case is that it established the general principle of the duty of care concept in law. The test was formulated by Lord Atkin and it is generally referred to as the “neighbour test” or “neighbour principle”. Donoghue v. Stevenson, also known as the "Paisley snail case," is a landmark legal case that was heard in the House of Lords in 1932 and is considered a key case in the development of the law of negligence in the United Kingdom. Facts On August 26, 1928, Mrs. Donoghue’s (Plaintiff) friend bought her a ginger beer. She consumed about half of the bottle, which was made of dark opaque glass when the remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a snail floated out causing her alleged shock and severe gastroenteritis. Mrs. Donoghue was not able to claim through breach of warranty of a contract as she was not a party to any contract. Therefore, she issued proceedings against Stevenson, the manufacturer (Defendant) which snaked its way up to the House of Lords. Issue Does a manufacturer of ginger beer bottles owe a duty of care to the end consumer while he didn’t directly sell it to him, but only via a distributor? Judgement Donoghue argued that Stevenson owed a duty of care to his customers who were to consume his ginger beer, to have an effective system to clean his bottle and keep it away from snails. Stevenson denied having snails in any of his bottles, arguing that Donoghue’s health problems had been caused by her own bad health conditions. He stated that the facts were not proved, he did not cause Donoghue any harm, and that the damages claimed were excessive. The matter was first heard in the Outer House of the Court of Sessions before Lord Moncrieff. Here, the owner of the café was added as a defendant but later dropped him because of his lack of contractual relationship with Donoghue, as the ginger beer was purchased by her friend and the fact that the owner of the cafe could not have possibly examined the content of the bottle. Lord Moncrieff, dismissed the argument and case law that required that there must be a contractual relationship between the parties before liability can be incurred for negligence in preparing goods for consumption. He described the principle as narrow. Stevenson appealed to the Inner House of the Court of Sessions which was presided over by four judges who had heard the case of Mullen v AG Barr & Co Ltd where it was held that no duty of care could arise in the absence of a contractual relationship. Thus, the appeal was allowed by the majority of the judges while Lord Hunter dissented again. Donoghue appealed to the House of Lords. The judges who heard her appeal were Lord Atkin, Lord Thankerton, Lord Tomlin, Lord Buckmaster, and Lord MacMillan. Donoghue’s Counsel argued that Stevenson owed a duty of care that was independent of contract because the bottles in which the ginger beers come in could not be examined and also because it was meant for human consumption. Stevenson’s Counsel argued that it was an established law in England and Scotland that no duty was owed by manufacturers to anybody with whom they had no direct contract. They argued that the exceptions which were created in English and Scottish laws were not present in this case; that is, that the ginger beer was not intrinsically dangerous and that the defendant, Stevenson, was not aware that the product was dangerous. The House of Lords held in favour of Donoghue, albeit, not unanimously. According to Lord Atkin, the case was an important one because of the bearing the decision on it would have on public health. To him, the moral rule that requires one to love their neighbour, or in-law, manifests as the rule that one has to take care not to injure his neighbour. He says that care must be taken, and such care must be reasonable, in order not to put one’s neighbour in danger or cause one’s neighbour an injury that is foreseeable. He defined a neighbour as one who will be directly affected by one’s action or omission so much so that one has to put such a person in his contemplation while he does such action or makes such omission. Impact: The case of Donoghue v. Stevenson has had a significant impact on the law of negligence in the UK and other common law jurisdictions. The case established the duty of care that manufacturers owe to consumers and set a standard for the level of care that a manufacturer must take to ensure the safety of his products. The case also confirmed the principle that a manufacturer could be held liable for harm caused by a defect in his product, even if the defect was not known to him at the time of manufacture. In conclusion, Donoghue v. Stevenson is a landmark case in the development of the law of negligence in the UK, and its impact has been felt in the UK and other common law jurisdictions. The case has established the principle that a manufacturer must take reasonable care to ensure that his products are safe for consumers to use, and has set a standard for the level of care that a manufacturer must take to fulfill that duty.

Gaurav

Mar 15, 2022

Secularism in India: The Hijab Row

Introduction India is a diverse country consisting of people belonging to various religions, castes, creeds, and socio-cultural backgrounds. The Indian Constitution did not contain the word ‘secularism’ when it was framed, until the 42nd amendment, when the term ‘secular’ was added to the Preamble of the Indian Constitution, along with the term ‘socialist’. The basic aim was to promote fraternity while assuring unity and integrity of the nation and protection of individual rights. A secular state is a state which does not prioritise any particular religion but accepts and respects all religions and communities of people.[1] Secularism can be Positive Secularism or Negative Secularism. The concept of negative secularism connotes a complete separation of religion (the church) and State (the politics). This generally prevails in Western countries. However, the Indian Constitution is embodied with positive secularism, which means giving equal respect to all religions and protecting all religions equally. In the Ayodhya verdict[2], the Supreme Court observed that the Vedic percept of “Sarva Dharma Sama Bhava” indicates positive meaning to Indian secularism, that is developing an understanding and respect towards all religion in the country. Any state government pursuing anti-secular activities shall be punished under Article 356 of the Indian Constitution[3]. However, over the past few days, India is witnessing some chaos concerning the question of whether a state government can decide if a particular religious practice is essential for the people of that community. With the ongoing case of Smt Resham & Anr v. State of Karnataka & Ors (Hijab Row case), this article will present a clearer picture regarding this burning issue and the events that have taken place so far. Background of the case On 3rd February 2022 female Muslim students wearing hijab were not allowed to attend classes by the principal and college staff of Milagres College in the Udupi district of Karnataka on a plea that there was a Government order prohibiting wearing headscarves to educational institutions. Following this, three petitions were filed in the Karnataka High Court. On 8th February 2022, the first hearing of the case was held by a single bench of Justice Krishna S. Dixit of Karnataka High Court. Grounds argued by the petitioners were as follows: Since the establishment of Milagres College, Udupi, Muslim girls have been wearing hijabs without any hindrance. Hence the sudden restriction is unnecessary and unanticipated. According to the University Grants Commission (UGC) Act, there is no prescribed rule of a particular uniform to be worn in educational institutions. There is a violation of the fundamental right to education against the students without any justification. Article 25(1) of the Indian Constitution provides freedom to practise religion. Petitioners also claimed involvement of political interests in the internal college management. While the hearing was underway in the Karnataka High Court, the ‘Saffron Hijab’ protest swelled in different parts of the State against the students wearing hijabs. As a result of this, the Chief Minister of Karnataka, Basavaraj Bommai, ordered the closure of all high schools and colleges. Justice Dixit, after the first hearing, urged the students and the public to maintain peace and tranquillity in the State and referred this matter to a larger bench. On 10th February 2022, a three-judge bench headed by the Chief Justice of Karnataka High Court, Justice Ritu Raj Awasthi, along with two other senior judges passed an interim order restricting all the students of the State from wearing any religious garments to the classes, till the matter is resolved. They also directed the State Government to re-open educational institutions without hindering the academic year of the students.[4] Arguments of the Petitioners As the three-judge bench of Karnataka High Court, Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi continued to hear the hijab row petitions, where senior advocate, Yusuf Muchhala, argued that Article 25(1) of the Indian Constitution[5] guarantees ‘Freedom of Religion’ to all persons of the country. However, it has been observed by the counsel of the petitioner that ‘freedom of conscience’ is distinct from the ‘right to profess, practice and propagate religion’. Some people might not believe in any religion, whereas some people might believe in all. Freedom of conscience protects these beliefs of individuals as a form of their freedom to express their choices and beliefs. Hence it must not be forgotten that the choice of clothing of an individual is a part of their freedom of expression. In order to argue with the defendant’s submission that wearing hijab is not an integral part of the Muslim religion, Muchhala submitted that “When a right is claimed under Article 25(1) and Article 19(1)(a), what matters is the entertainments of a conscientious belief by an individual; it is not necessary to determine whether it is an integral part of the religion”. Justice Jasti Chelameswar’s opinion in the landmark Puttaswamy judgement[6] of the Supreme Court was also cited by the petitioner’s counsel where he observed freedom of conscience to fall within the fundamental right to privacy. Also, in 2016 Kerela High Court had recognised and allowed Muslim girls to wear hijab when sitting for medical entrance exams.[7] The Karnataka Government order dated 5th February 2022, based on which students are not being allowed to wear hijabs to classes in educational institutions, is argued by the petitioners to be completely arbitrary and being violative of Article 14 of the Constitution[8]. The petitioners further argue that this order also asks College Development Committees to prohibit the wearing of hijabs or any other religious attire to educational institutions, without any consultation and without providing an opportunity to the aggrieved students and their families, to argue against these rules. Continuing the petitioner’s arguments, senior advocate Ravivarma Kumar pointed out that Article 25 of the Indian Constitution guarantees freedom of free practice and propagation of religion to all the persons of the country, however, it is subject to restriction. The restriction has been provided under the same article, that is Public Order. Maintaining public order is a power of the State Executive, hence a mere College Development Committee is not competent to decide for this matter. He explained that the Karnataka Education Act 1983[9] and its 1995 Rules[10] never gave any authority to College Development Committees to frame rules or have jurisdiction over matters which affect the fundamental rights of the people of the country. Previously on the hijab row, the Karnataka High Court had heard two broad strands of argument by senior advocate Devadatt Kamat: The Karnataka Government’s order dated 5th February 2022 unlawfully gives the power to College Development Committees to ban hijabs, with the presence of an existing fact that there is no state-wide policy on uniforms of educational institutions. Muslim girls are being forced to give up what they view as an essential part of their religious practice even though there is no threat to public order. Senior advocate Kamat pointed out an observation made by the Supreme Court in the Ratilal Panachand Gandhi case[11] that “No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner”. Along with Kamat, senior advocate Sanjay Hedge noted the protection of freedom of conscience by a landmark decision given by the Supreme Court in Bijoe Emmanuel case[12], where the apex court overturned the lower court’s decision to expel students from Jehovah’s Witnesses faith who would stand during the national anthem but would not sing it due to their own religious beliefs. Arguments of the Defendants On the other side of the case, Advocate General Prabhuling Navadagi, representing the Karnataka Government, countered the petitioners’ arguments stating that under Article 25(1) of the Indian Constitution, the State has the power to restrict matters of religious nature. He explained that during the Covid crisis, the State Government had ordered the closure of religious places such as temples, mosques, churches, etc as allowing them to remain open would have created disruption in the State. Similarly, it can not be said that wearing hijabs is an absolute Muslim religious practice, hence the State Government has the right to ban wearing hijabs if it causes the public disorder. Navadagi argued that the practice of wearing a hijab is not an essential religious practice of Islam and hence, does not violate Article 19(1)(a) of the Indian Constitution, and can be restricted under Article 19(2)[13]. It was also argued that Rule 11 of Karnataka Educational Institutions Rules, 1995[14] places a reasonable restriction inside the institutions and it is subjected to institutional discipline. Another vital question is whether a State Government has the power to decide whether a particular act is an essential practice of religion. Advocate General (AG) Prabhuling Navadagi argued that the entire claim by the petitioners to make hijab compulsory is beyond the ethos of the Indian Constitution. It was pointed by Navadagi that if hijab gets religious sanction then Muslim women will be obliged to wear it. It is the woman’s individual freedom to choose what to wear and what not. Hence if wearing hijab gets compulsory through religious sanction, then the liberty to choose one’s own clothing will be deprived for those women. He further argued that as far as private unaided minority educational institutions are concerned, the defendants are not interfering with the school/college uniform. Meanwhile, senior advocate R. Vekataramani appearing on behalf of teachers who were made respondents in a writ petition argued that the State should not interfere to decide what constitutes as ‘essential’ in a particular religion. State can only take a stand when the matter collides with public order, health and morality. The AG also stressed that a practice may be religious but not necessarily essential. He referred to the Ismail Faruqui judgement[15], stating that the Mosque is not an essential part to practice Islam, as Namaz can be offered anywhere, even in the open. This aspect of this case was connected with the present case, and argued by the AG that there was no restriction on wearing hijab on campus, the only restriction is inside the classroom during class hours. Further, citing the Triple Talaq case[16] and Sabrimala case[17], he argued that a religious practice claimed to be ‘essential’ must have been mandatory and not optional. Hence, as wearing hijab is not compulsory for all Muslim women, it is an optional practice depending upon an individual’s choice, therefore it cannot be said to be ‘essential’ to a religion. The Karnataka High Court, after hearing the arguments from both sides, has agreed to hear the pending petitions, meanwhile, has directed the State to check if its interim order dated 10th February 2022 (interim order restricting all the students of the State from wearing any religious garments to the classes) is not being violated. The Karnataka High Court on 23 February, 2022 clarified that this interim order passed by it will apply to both Degree Colleges and Pre-University Colleges, where there is a prescribed uniform for the students. Also, this order applies to only students and not teachers. Judgment (Smt. Resham v. State of Karnataka) On 15th March 2022, the Karnataka High Court ruled that wearing the hijab is not an essential practice in Islam. The bench led by Chief Justice Ritu Raj Awasthi said, ‘We are of the considered opinion that wearing hijab by Muslim women does not form a part of essential religious practice in Islamic faith’. The High Court also held that the Karnataka Government Order dated 5th February 2022 is not unconstitutional. The three-judge bench of Cheif Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice JM Khazi held the judgment according to the following major reasons: Hijab is not a part of the essential religious practices of Islam protected under Article 25 of the Indian Constitution[18]. The requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a) of the Indian Constitution[19]. The restriction of wearing hijab to educational institutions is also no violation of privacy under Article 21 of the Indian Constitution[20]. The Government has the power to pass the Government Order; no case is made out for its invalidation. The hearing before the Bench had lasted 11 days, before the verdict was reserved on 25th February 2022. Chief Minister Basavaraj Bommai welcomed the judgment and appealed to all the communities to accept it and respect it in the interest of the student community. [1] https://www.arvindguptatoys.com/arvindgupta/jahagir-secularism.pdf [2] https://www.sci.gov.in/pdf/JUD_2.pdf [3] https://indiankanoon.org/doc/8019/ [4]https://karnatakajudiciary.kar.nic.in/judgements/WP_2347_2022.pdf [5] https://indiankanoon.org/doc/631708/ [6] https://indiankanoon.org/doc/91938676/ [7]https://www.deccanherald.com/national/south/keralas-precedents-on-hijab-row-gets-focus-1079054.html [8] https://indiankanoon.org/doc/367586/ [9]https://righttoeducation.in/sites/default/files/THE%20KARNATAKA%20EDUCATION%20ACT,%201983.pdf [10]https://dpal.karnataka.gov.in/storage/pdf-files/Karnataka%20Rules/01%20of%201995%20Rules%20(E)(1).pdf [11] https://indiankanoon.org/doc/1307370/ [12] https://indiankanoon.org/doc/1508089/ [13] https://indiankanoon.org/doc/493243/ [14]Supra note 10 [15] https://indiankanoon.org/doc/37494799/ [16] https://indiankanoon.org/doc/115701246/ [17] https://indiankanoon.org/doc/163639357/ [18] Supra note 5 [19] https://indiankanoon.org/doc/1378441/ [20] https://indiankanoon.org/doc/1199182/

Priyanka Mangaraj

Mar 14, 2022

Case Study on the acquisition of Air India by Tata Sons

INTRODUCTION Jehangir Ratanji Dadabhoy Tata started Tata Air Services, which was eventually renamed as Tata Airlines in 1932 and became a public limited company. The Air Corporations Act was passed in 1953 by the Indian government in order to purchase a majority stake in the airline carrier from Tata Sons. Later, when the aviation industry was opened up to private competition in 1994, six major private airlines entered the market: Jet Airways, Air Sahara, Modiluft, Damania Airways, NEPC Airlines, and East-West Airlines. Frivolous attempts were made in 2000-01 to privatize Air India. Furthermore, these low-cost carriers began to eat into Air India's market share. To address this rivalry, the then UPA government chose to merge Air India and its domestic business, Indian Airlines, into a single entity which was accomplished in 2006. The plan was to use the assets and capital pooled together to accelerate expansion. However, after merging with Indian Airlines in 2006, the company began to lose money. This is due to the fact that, prior to the merger, the ministry had spent close to 67,000 crore on 111 new wide-body planes. And, following the merger, the merged company employed about 30,000 people. According to government estimates, the airline lost about 570 million (US$7.6 million) as a result of extra commissions approved by Michael Mascarenhas, the company's then-managing director. In 2006–07, Air India and Indian Airlines lost a total of $7.7 billion (US$100 million), which increased to 72 billion (US$960 million) after the merger in March 2009. Air India had a debt of 426 billion rupees (US$5.7 billion) and an operational deficit of 220 billion rupees (US$2.9 billion) by March 2011. The government was being sued for $429 billion (US$5.7 billion). The government decided to offer Air India with approximately Rs 30,000 crores in equity capital over a ten-year period. Lately, Air India had a total debt of 61,562 crores as of August 31. THE TATA GROUP'S PROPOSAL BEAT THE AJAY SINGH CONSORTIUM'S The Indian government has finally found a buyer for Air India, with Tata Group being chosen as predicted to take over the flag carrier. The government sold Air India to Talace Private Limited, a subsidiary of the Tata Group's parent firm, for Rs 18,000 crore on October 8, last year, following a competitive bidding process. Goverment's most recent attempt occurred in January 2020. It chose to spin off a portion of the airline's significant debt burden into a government-owned holding company created for that purpose to assist attract investors. Tata Group and a consortium fronted by SpiceJet investor Ajay Singh were the two bidders, with Tata Group being seen as the favourite. Mr. Singh's consortium offered INR151 billion, while Tata's bid had an enterprise value of INR180 billion. Tata's offer was chosen over the other because it met the reserve price of INR129 billion. INTEGRATION OF ALL TATA CARRIERS IS KEY TO THE TURNAROUND OF AIR INDIA With the handover, Tata Group now has control of four airline brands, each with its own profile, culture, and cost basis. The integration will entail examining common systems, redundant capacity, and prices while keeping competition policy in mind. Merging common systems, eliminating redundant capacity, and minimizing expenses are all part of successful integration. The full-service carrier Air India, its low-cost unit Air India Express, and a 50% share in the airline's ground and cargo handling business, Air India SATS Airport Services, are all managed by the Tata Group (AISATS). The new owner of Air India already owns Vistara, a full-service joint venture between the Tata Group and Singapore Airlines, and AirAsia, a joint venture between Tata Sons and Malaysia's AirAsia Investment. As the initial euphoria over the successful handover of Air India to the Tata Group wears off, speculation about how the salt-to-software conglomerate will turn the national flag airline around has begun. Experts say a seamless integration of the group's existing air carriers with the formerly government-owned airline will be critical to the successful takeoff of the much-discussed privatization. AIR INDIA'S 100-DAY IMPROVEMENT PLAN A potential merger would necessitate a complete overhaul of Air India's service standards. The Tata Group has committed to significantly increasing its investment in the Air India brand. A 100-day strategy is already in the works to address immediate concerns like the airline's on-time performance (OTP), call centers, and the prompt resolution of passenger complaints. As part of the 100-day plan, the Tata Group is said to have organized a big committee to significantly ramp up Air India services and made senior-level hiring in the airline's human resources division to build synergies. Furthermore, the Tatas have already gained experience in supplying a premium product through their Vistara partnership with SIA (Singapore airlines). Lastly, this acquisition tends to minimise the government's role in the economy; given the difficulty of AI's disinvestment in the past, or any disinvestment at all, this is a major accomplishment. However, in terms of money, the agreement does not represent a significant step toward the government's disinvestment aim for this year. Furthermore, the Tatas would take care of Rs 15,300 crore of the total AI debt of Rs 61,562 crore, and will pay an extra Rs 2,700 crore in cash to the government. The debt now stands at Rs 43,562 crore. The government's assets, like as buildings, are expected to produce Rs 14,718 crore. However, the government would still be responsible for a debt of Rs 28,844 crore. So, it might be claimed that if the government had ran AI efficiently, profits could have been created and debts paid off — rather than selling the airline (which can make profits) and still being in debt. Apart from the emotional issue of taking control of an airline that they founded, the Tatas saw AI's takeover as a long-term investment. If this wager pays off, the Tatas will have to invest substantially more than what they have paid the government. REFERENCES Case study on Tata Sons' purchase of Air India https://www.whiteocean.in/casestudy/case-study-on-tata-sons-purchase. Tata Group to Acquire 100% Stake in Air India | Tata group www.tata.com/newsroom/business/air-india. Air India purchase will bring new challenges for Tata Group | CAPA https://centreforaviation.com/analysis/reports/air-india-purchase-will-bring-new.

Satyam Malakar

1 (current)
2

×

Home
About
Jobs
Events
Courses
Exams
Blog
Recruiter
Pricing

Applicant

Login
Register
Forgot Password

* By proceeding you agree to our Privacy Policy and Terms of Use

*

*

*

*

Password should contain one upper case,one lower case,one number and one special character with 8-30 characters.

* By proceeding you agree to our Privacy Policy and Terms of Use

Advertiser

Login
Register
Forgot your password

* By proceeding you agree to our Privacy Policy and Terms of Use

*

*

*

*

Password should contain one upper case,one lower case,one number and one special character with 8-30 characters.

* By proceeding you agree to our Privacy Policy and Terms of Use

about
privacy
terms of use
careers
contact us
sitemap

© 2021 Botmatrix Services Private Limited. All Rights Reserved.