Apex Law Journal
Apex Law Journal
An online law journal reporting latest and important judgments of Hon'ble Supreme Court of India.                                                                                                                         Click here to get free legal updates via email                                                                                                                          Click here to download forms (Address Form, List Of Documents and Memorandum Of Appearance)
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Constitution of India, 1950

Tuesday, May 07, 2013
Constitution of India, 1950

Constitution of India, 1950 — Article 72 — Delay in disposal of the petition filed under Article 72 — Whether 12 years delay in the disposal of the petition filed by the appellant under Article 72 of the Constitution was sufficient for commutation of the sentence of death into life imprisonment? — Held, yes — The Division Bench of the High Court committed serious error by dismissing the writ petition solely on the ground that he was found guilty of committing heinous crime.

 
Wednesday, November 21, 2012
Constitution of India, 1950

Constitution of India, 1950 — Article 22(5) — Preventive detention — The grounds on which the person is detained is to be communicated to him when the person has actually been detained.

 
Saturday, November 17, 2012
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Held, Supreme Court in exercise of power under Article 136 of the Constitution can interfere with concurrent findings of fact, if the conclusions recorded by the High Court are manifestly perverse and unsupported by the evidence on record.

 
Tuesday, February 14, 2012
Constitution of India, 1950

Constitution of India, 1950 — Article 13(2) — Scope of — Held, Article 13(2) clearly prohibits the making of any law by the State which takes away or abridges rights, conferred by Part III of the Constitution — In the event of such a law being made the same shall be void to the extent of contravention.

 
Thursday, January 26, 2012
Constitution of India, 1950

Constitution of India, 1950 — Article 15(4) and Article 16(4) — Ratio of the Valsamma decision [(1996) 3 SCC 545] lies in paragraph 34 of the judgment — What was said earlier in paragraph 31 of the judgment was in the facts of that case and it would be an error to take it as the ratio of the decision.

 
Tuesday, December 13, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated.

 
Monday, December 05, 2011
Constitution of India, 1950

Constitution of India, 1950 — Articles 21 and 22 — Held, Article 21 and Article 22 ensures that arbitrary arrest and detention are not made.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Any form of torture or cruel, inhuman or degrading treatment is inhibited.

 
Sunday, November 20, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Any form of degrading treatment would fall within the inhibition of Article 21 of the Constitution.

 
Saturday, November 12, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 226 — Electricity Act, 2003, Section 126(3) — The High Court should normally decline to interfere in a final order of assessment passed by the assessing officer in terms of Section 126(3) of the 2003 Act in exercise of its jurisdiction under Article 226 of the Constitution of India.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 14 — Electricity Act, 2003 — The power to impose penal charges or disconnect electricity has been held not violative even of Article 14 of the Constitution of India.

 
Tuesday, October 18, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 22(2) — At the time when the appellant moved for bail she was in judicial custody pursuant to orders of remand passed by the learned CJM/Special Judge — The appellant did not challenge the orders of remand and subsequent orders — Held, in the absence of challenge to these orders of remand passed by the competent court, the appellant cannot be set at liberty on the alleged plea that there was violation of Article 22(2) by the police.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 22(2) — Right under Article 22(2) is available only against illegal detention by police — It is not available against custody in jail of a person pursuant to a judicial order — Article 22(2) does not operate against the judicial order.

 
Friday, September 09, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 36 r/w Article 12 and Article 39(d) — Unaided private schools are not State within the meaning of Article 36 read with Article 12 of the Constitution and as the obligation to ensure equal pay for equal work in Article 39(d) is on the State, a private unaided minority school is not under any duty to ensure equal pay for equal work.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 14 — The right to equality under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority schools.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 12 r/w Article 30(1) — Unaided private minority schools over which the Government has no administrative control because of their autonomy under Article 30(1) of the Constitution are not State within the meaning of Article 12 of the Constitution.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 30(1) r/w Articles 12, 14, 36 and 39(d) — The teachers of private unaided minority schools had no right to claim salary equal to that of their counter- parts working in Government schools and Government aided schools.

 
Friday, August 26, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — The powers under Article 136 can be exercised by the Supreme Court, in favour of a party even suo motu when the Court is satisfied that compelling grounds for its exercise exist — Where there is manifest injustice, a duty is enjoined upon this Court to exercise its suo motu power by setting right the illegality in the judgment of the High Court as it is well settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allow illegality to be perpetuated — When an apparent irregularity is found by this Court in the order passed by the High Court, the Supreme Court cannot ignore substantive rights of a litigant while dealing with the cause pending before it — There is no reason why the relief cannot be and should not be appropriately moulded while disposing of an appeal arising by grant of special leave under Article 136 of the Constitution.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Where the judgment of the High Court is tainted with serious legal infirmities and is founded on a legal construction which is wrong then even in the absence of challenge either by State or by the original complainant, the Supreme Court under Article 136 can set aside the quashing proceedings and restore the complaint on the file of learned Magistrate.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — The power under Article 136 is meant to supplement the existing legal frame work. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 254(2) — When the State Act prevails under Article 254(2) over a Central Act, the effect is merely to supersede the Central Act or to eclipse it by the State Act — In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union Law relating to a concurrent subject would be that the State Act will prevail in that State and overrule the provisions of the Central Act, in that State.

 
Tuesday, August 23, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 19(1)(g) — Central Motor Vehicles Rules, 1989, Rule 128(9) — Prohibition to carry luggage on the roof of tourist vehicle — Whether violative of Aricle 19(1)(g)? — Held, no — Rule 128(9) cannot be said either arbitrary or unreasonable or violative of Article 19(1)(g) of the Constitution.

 
Friday, July 22, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 20(2) — Rule of double jeopardy has no application in an action for civil damages.

 
Friday, June 10, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Appeal against an order of acquittal — Supreme Court would usually not interfere unless 

 

 a. The finding is vitiated by some glaring infirmity in the appraisal of evidence. (State of U.P. Vs. Sahai, AIR 1981 SC 1442 at paras 19-21) 

 

 b. The finding is perverse. (State of MP Vs. Bachhudas, (2007) 9 SCC 135 at para 10 and State of Punjab Vs. Parveen Kumar (2005) 9 SCC 769 at para 9) 

 

 c. The order suffers from substantial errors of law and fact (Rajesh Kumar Vs. Dharamvir 1997(4) SCC 496 at para 5) 

 

 d. The order is based on misconception of law or erroneous appreciation of evidence (State of UP Vs. Abdul 1997(10) SCC 135; State of UP Vs. Premi 2003(9) SCC 12 at para 15) 

 

 e. High Court has adopted an erroneous approach resulting in miscarriage of justice (State of TN Vs. Suresh 1998(2) SCC 372 at paras 31 and 32; State of MP Vs. Paltan Mallah 2005(3) SCC 169 at para 8) 

 

 f. Acquittal is based on irrelevant grounds (Arunachalam Vs. Sadhanatham 1979(2) SCC 297 at para 4 

 

 g. High Court has completely misdirected itself in reversing the order of conviction by the Trial Court (Gaurishanker Sharma Vs. State of UP, AIR 1990 SC 709) 

 

 h. The judgment is tainted with serious legal infirmities (State of Maharashtra Vs. Pimple, AIR 1984 SC 63 at para 75)

 
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Jurisdiction under Article 136 against an order of acquittal — If this Court is of the opinion that the acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on this Court’s jurisdiction under Article 136 to come to a just decision quashing the acquittal (See 1985(4) SCC 476 at para 45; 1996(7) SCC 471 at para 4).

 
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Jurisdiction under Article 136 against an order of acquittal — If the consideration by the High Court is misconceived and perverse then there is nothing in law which prevents this Court from exercising its jurisdiction under Article 136 against an order of acquittal when such acquittal cannot be sustained at all, in view of the evidence of record. 

 
Sunday, June 05, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 15(3) — Clause (3) of Article 15 contains an enabling provision and lays down that nothing in that article shall prevent the State from making any special provision for women and children.

 
Friday, May 13, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 21 and Article 22(3)(b) — Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law.   

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 22(3)(b) and Article 21 — Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law — No such law exists in the USA and in England (except during war time) — Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 22(3)(b) and Article 21 — Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution — An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution — Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 22 and Article 21 — Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21 — An exception can apply only in rare and exceptional cases, and it cannot override the main rule. 

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Right to liberty — Held, right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 22(3)(b) readwith Articles 19 and 21 — Held, Article 22(3)(b) cannot be read in isolation, but must be read along with Articles 19 and 21, vide Constitution Bench decision of this Court in A.K. Roy Vs. Union of India (1982) 1 SCC 271 (para 70).

 
Constitution of India, 1950

Constitution of India, 1950 — Article 22(3)(b) — Preventive detention — If the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal — The observation in para 34 in Haradhan Saha’s case (1975) 3 SCC 198 cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 22(3)(b) and Article 21 — Held, Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right — It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution.

 
Saturday, April 30, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 142 — The power under Article 142 of the Constitution is plenipotentiary — However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction.

 
Thursday, April 14, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 300A — Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 37 — It is the duty of the State to apply the principles enshrined in Chapter IV in making laws.

 
Thursday, March 24, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 141 — If a subsequent coordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 320(3)(c) — Although Article 320(3)(c) is not mandatory but where the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal — Principles of natural justice — Union of India vs. T.V.Patel, (2007) 4 SCC 785 distinguished.

 
Tuesday, March 15, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 141 — In State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, (2006) 7 SCC 172, a two-Judge Bench of this Court had taken a contrary view without taking note of the earlier two-Judge Bench judgment in Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201 — Held, technically speaking it can be held to be per incuriam.

 
Friday, March 04, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 161 — Before the Governor could pass the aforesaid order of pardon, the accused persons filed appeals against the order of conviction and sentence and the same were pending before the Hon’ble High Court — Held, this is a relevant fact for the Governor to take into consideration before granting his power of pardon.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 161 — An omission of any reference to an order of conviction or sentence in the Governor’s order in respect of the accused is really of no consequence.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 161 — Whether the power under Article 161 is subject to judicial review and if yes, to what extent? — Held,  there is limited scope of judicial review on the exercise of power by the Governor under Article 161.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 161 — The Governor while granting pardon under Article 161, held, cannot pronounce upon the innocence or guilt of the accused.

 
Saturday, February 26, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Held, Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the ‘heart and soul’ of the fundamental rights.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Held, Article 21 can be said to be the ‘heart and soul’ of the fundamental rights.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — If a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.

 
Thursday, February 17, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Right to live with dignity — Prostitutes also have a right to live with dignity under Article 21 of the Constitution of India — The Central  and State Governments directed to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India.

 
Tuesday, February 08, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 20(2) — Criminal Procedure Code, 1973, Section 300(1) — There is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C. — Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution.

 
Tuesday, January 25, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — In an appeal under Article 136 of the Constitution, this Court does not normally appreciate the evidence by itself and go into the question of credibility of witnesses — The assessment of the evidence by the High Court is accepted as final except where the conclusions recorded by the High Court are manifestly perverse and unsupportable by the evidence on record.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Even though the powers of this Court under Article 136 of the Constitution are very wide, but in criminal appeals, this Court would not interfere with the concurrent findings of facts, save in very exceptional cases.

 
Saturday, January 22, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 227 — Power of superintendence — While it is true that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority — In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner.

 
Sunday, January 09, 2011
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — This Court does not ordinarily interfere under Article 136 of the Constitution with interlocutory orders.

 
Tuesday, January 04, 2011
Constitution of India, 1950

Constitution of India, 1950 — Articles 32, 226 and 227 — Forum of the writ court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant — If the Court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief.

 
Sunday, December 12, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Personal Liberty — Held, is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Object of — Held, the object of Article 21 is to prevent encroachment upon personal liberty in any manner — Article 21 is repository of all human rights essentially for a person or a citizen — A fruitful and meaningful life presupposes full of dignity, honour, health and welfare — In the modern “Welfare Philosophy”, it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Personal Liberty — Criminal Procedure Code, 1973 — Section 438 — Anticipatory bail — Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

 
Wednesday, December 08, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Even after issuance of notice in the special leave petition and after grant of leave, irrespective of the nature of the subject matter, the appellants must show that exceptional and special circumstances exists and if there is no interference by this Court substantial and grave injustice will result and that the case has features of sufficient gravity to warrant a decision from this Court on merits.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 226 — Civil Procedure Code, 1908, Section 96 — Whether the High Court is justified in hearing a writ petition filed under Art. 226 of the Constitution of India along with the regular first appeal filed under Section 96 C.P.C.? — Held, where the subject matter of the appeals and the relief prayed for in the writ petition are interconnected, the High Court is justified in disposing of the writ petition along with the appeals.

 
Friday, November 19, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Civil Procedure Code, 1908, Section 98(2) — Travancore-Cochin High Court Act, Section 23 — Kerala High Court Act, Section 9 — The question whether in an appeal arising out of an order passed by the High Court to which Section 98(2) of the CPC applies, this Court can in exercise of its power under Article 136 of the Constitution direct the matter to be placed before a third Judge to resolve the conflict arising from two differing judgments, held, has not been examined either in P.V. Hemlatha’s [ 2005 (5) SCC 548] or Tej Kaur’s case [1995 (5) SCC 119] — This Court, therefore, consider it appropriate to refer to a larger Bench for consideration and an authoritative pronouncement the following two questions: 

 

(1) Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act. If so, whether Section 23 is in the nature of a special provision vis-àvis Section 98(2) of CPC. 

 

(2) Whether this Court can under Articles 136 and 142 of the Constitution direct in any appropriate case a reference to a third judge to resolve the conflict arising between two judges of the High Court hearing an appeal, on a question of fact.

 
Wednesday, November 10, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 309 — Civil Post — Lambardar does not hold a civil post within the meaning of Article 309 of the Constitution of India.

 
Saturday, November 06, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — This Court, in exercise of its powers under Article 136 of the Constitution, will not re-open the findings of the High Court when there are concurrent findings of facts and there is no question of law involved and the conclusion is not perverse.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Article 136 of the Constitution, does not confer a right of appeal on a party — It only confers a discretionary power on the Supreme Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence.

 
Friday, November 05, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 286(1)(b) — Under Article 286(1) of the Constitution, the Court has to examine whether any tax is being imposed by the State Legislature on the sale or purchase of goods “in the course of the import of the goods into or export of the goods out of the territory of India” — In order to resist imposition of sales tax by the State, the assessee will have to establish the identity of the goods sold to be exported out of the territory of India — In order to fulfill an export obligation, if an exporter purchases goods and as a result of some processing the identity and character of the goods change, then it will not be a case of export of the same goods.

 
Wednesday, November 03, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 311(2) — Forty-Second Amendment, 1976 — Whether the right to represent against the findings in the inquiry report to prove one’s innocence is distinct from the right to represent against the proposed penalty? — Held, yes — The right to represent against the findings in the inquiry report to prove one’s innocence is distinct from the right to represent against the proposed penalty — It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment — The right to represent against the findings in the report is not disturbed in any way — In fact, any denial thereof will make the final order vulnerable.

 
Friday, September 03, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India — Nirmal Singh Kahlon Vs. State of Punjab & Ors. (2009) 1 SCC 441 relied.

 
Tuesday, July 06, 2010
Constitution of India, 1950

Constitution of India, 1950 — Articles 226 and 227 — When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective — “Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice.” Who seeks equity must do equity — The legal maxim “Jure naturaw aequum est neminum cum alterius detrimento et injuria fieri locupletiorem”, means that it is a law of nature that one should not be enriched by the loss or injury to another — (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors. AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & ors. (1994) 6 SCC 620 and Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242). 

 
Friday, June 18, 2010
Constitution of India, 1950

Constitution of India — Articles 226 and 227 — Exercise of power — Guiding principles and parameters — Discussed in the light of law laid down in Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 — And — Held — That in future the High Courts would keep in view the limitations of certiorari jurisdiction/ supervisory jurisdiction and refrain from deciding the writ petitions filed under Article 226 or petitions/applications filed under Article 227 of the Constitution as if they are adjudicating appeals filed against the orders of the lower courts or other judicial/quasi judicial bodies/authorities. 

 
Friday, March 19, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Power under Article 136 of the Constitution is very wide and nothing prevents this Court to reappraise the evidence and set aside concurrent finding of fact holding the accused guilty — However, appreciation of evidence is resorted to, in exceptional circumstances when it comes to the conclusion that the finding of guilt recorded by the High Court is perverse, meaning thereby the High Court had recorded the finding without consideration of relevant material or consideration of irrelevant material, the consideration or nonconsideration whereof shall have bearing on the finding recorded — The finding can also be considered perverse, if a person duly instructed in law will not come to that finding — This Court may also interfere with the finding of fact when it finds violation of established procedure going to the root of the case — Where the High Court has analysed the evidence in great detail and found the evidence reliable there is no scope for interference by this Court.

 
Monday, March 08, 2010
Constitution of India, 1950

Constitution of India, 1950 — Fundamental rights — The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision — Any law that abrogates or abridges such rights would be violative of the basic structure doctrine — The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 21 — Held, Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law — The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim — The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers — In certain situations even a witness to the crime may seek for and shall be granted protection by the State.

 
Constitution of India, 1950

Constitution of India, 1950 — Articles 32 and 226 — If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation — In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.

 
Constitution of India, 1950

Constitution of India, 1950 — Articles 32 and 226 — Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution. 

 
Constitution of India, 1950

Constitution of India, 1950 — Article 246 — Federal Supremacy — The principle of federal supremacy laid down in Article 246 of the Constitution cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and the State Lists.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 226 — Constitution of India, 1950, Entry 2 of List II of The Seventh Schedule and Entry 2A and Entry 80 of List I — Delhi Special Police Establishment Act, 1946, Section 6 — Whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation, established under the Delhi Special Police Establishment Act, 1946, to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government? — Held, yes — The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act — A direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law — However, order directing CBI to conduct investigation is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police — This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights — Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

 
Monday, January 25, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Scope of — Held, the scope of Article 136 is no doubt very wide — Special leave to appeal can be granted under Article 136 against any judgment, decree, determination, sentence or order passed or made by any court or tribunal, in any case or matter — There are no limitations upon the discretionary power   of   this   Court   under   Article   136,   except those which are self-imposed — One recognised area where the discretion is not exercised is where the remedy by way of an appeal or revision is available against the order — Another recognised area is where the subject matter is stale or frivolous or cantankerous or where the stakes or issue involved is so small and negligible, that grant of leave or even issue of notice will cast a heavy burden in terms of expense, time and energy on a poor or ordinary respondent — There is a third recognised area of exclusion relating to orders which do not decide any issue — Orders admitting a petition/appeal/revision, or orders issuing notice to show cause why a petition/appeal/revision should not be entertained, or an order merely adjourning a case, fall under this category — Extraordinary situations leading to irreversible injustice can of course be exceptions to the exclusion.

 
Thursday, January 07, 2010
Constitution of India, 1950

Constitution of India, 1950 — Article 142 — Negotiable Instruments Act, 1881, Section 147 — Criminal Procedure Code, 1973, Section 320(8) — Supreme Court, held, is empowered under Article 142 of the Constitution to pass appropriate orders in line with Sub-Section (8) of Section 320 Cr.P.C. in an application under Section 147 of the Negotiable Instruments Act, in order to do justice to the parties.

 
Friday, August 14, 2009
Constitution of India, 1950

Constitution of India, 1950 — Article 227 — High Court cannot under the powers conferred by this article, withdraw a case to itself from a Tribunal and dispose of the same, or determine merely the question of law as to the interpretation of the Constitution arising before the Tribunal.


 
Constitution of India, 1950

Constitution of India, 1950 — Article 227 — Power of superintendence — Held, the power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution — Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is an error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 228 — Scope of — Held, Article 228 of the Constitution covers a different field from that covered by Articles 226 and 227 of the Constitution — It lays down the procedure regarding transfer of a case pending in Courts subordinate to the High Court — This power is not to be founded both under Articles 226 and 227 of the Constitution — The conditions that require to be fulfilled before Article 228 of the Constitution can be applied are, that a case must be pending in the Court subordinate to the High Court, the case must involve a substantial question of law as to the interpretation of the Constitution or the Government of India Act, 1935 and the determination of the question of law must be necessary for disposal of the case — Once these three conditions are fulfilled, the Article requires that the High Court will withdraw the case and then may either dispose of the case itself or determine the question of law and return the case to the Court from which the case has been withdrawn.            

 
Constitution of India, 1950

Constitution of India, 1950 — Article 228 — Held, High Court in exercise of power under Article 228 of the Constitution can withdraw a case from subordinate Court and decide the whole case by itself or decide the question of law and return the case to the Court from which it is withdrawn. But the primary ingredient for exercise of the power under this Article is that the case should contain a substantial question of law, which requires an interpretation of the Constitution.

 
Saturday, March 14, 2009
Constitution of India, 1950

Constitution of India, 1950 — Article 243T — Held, a plain reading of Article 243T of the Constitution makes it clear that it provides for reservation of seats for the Scheduled Castes, Scheduled Tribes and Women in every Municipality and further enables the Legislature of a State to make provision for reservation of seats in any Municipality or offices of the Chairpersons in the Municipalities in favour of Backward Class of citizens — It also mandates that the offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, Scheduled Tribes and Women as the Legislature of a State may, by law, provide — Be it noted that no seats in the Municipalities or to the offices of the Chairpersons are reserved in favour of persons belonging to general category.

 
Thursday, January 15, 2009
Constitution of India, 1950

Constitution of India, 1950 — Articles 102(1)(a), 309, 314, 58(2) and 66(4) — Office of profit — For holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them — The Constitution itself makes a distinction between “the holder of an office of profit under the Government” and “the holder of a post or service under the Government” — The Constitution has also made a distinction between “the holder of an office of profit under the Government” and “the holder of an office of profit under a local or other authority subject to the control of Government” — Guru Gobinda Basu vs. Sankari Prasad Ghosal and Others [AIR 1964 SC 254] relied.      

 
Constitution of India, 1950

Constitution of India, 1950 — Article 102(1)(a) — Term “holds an office of profit” — Held, The term "holds an office of profit" though not defined, has been the subject-matter of interpretation, in several decisions of this Court — An office of profit is an office which is capable of yielding a profit or pecuniary gain — Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is "holding an office of profit" — The question whether a person holds an office of profit is required to be interpreted in a realistic manner — Nature of the payment must be considered as a matter of substance rather than of form — Nomenclature is not important — In fact, mere use of the word "honorarium" cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient — Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit — For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain — If the "pecuniary gain" is "receivable" in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not — If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a) — (2006) 5 SCC 266 relied.

 
Wednesday, August 15, 2007
Constitution of India, 1950

Constitution of India, 1950 — Article 226 — Punjab Municipal Act, 1911 — Sections 3(1)(b) and 3(8aa) [Punjab Amending Act No.11 of 1994] — High Court while declaring Sections 3(1)(b) and 3(8aa) as unconstitutional also directed the State Legislature to amend the law relating to determination of annual value by classifying that any such amendment shall not be retrospective — Held, It is not open to the High Court under Article 226 of the Constitution, particularly in the matter of taxation directing it not to amend the law retrospectively — Such a direction is unsustainable, particularly in a taxing statute — It is always open to the State Legislature, particularly in tax matters, to enact validation laws which apply retrospectively — The High Court cannot take away the power of the State Legislature to amend the tax law retrospectively — The basis of the law can always be altered retrospectively.

 
Thursday, April 12, 2007
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Scope of — Article 136 of the Constitution, held, is not a regular forum of appeal at all — It is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion.

 
Constitution of India, 1950

Constitution of India, 1950 — Article 136 — Words “in its discretion” — The use of the words “in its discretion” in Article 136 clearly indicates that Article 136 does not confer a right of appeal upon any party but merely vests a discretion in the Supreme Court to interfere in exceptional cases.

 

 
Friday, December 15, 2006
Constitution of India, 1950

Constitution of India, 1950 — Article 227 — Supervisory jurisdiction — Scope — Held, the jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction — But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution — The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.

 
Friday, August 25, 2006
Constitution of India, 1950

Constitution of India, 1950 — Article 19(1)(g) — Blacklisting of respondent-firm — Only a notice to show cause in that behalf has been issued — A final decision in regard to blacklisting of the respondent-firm was yet to be taken — High Court committed a manifest error in holding that the respondent-firm had been blacklisted without any notice.

 
Monday, July 17, 2006
Constitution of India, 1950

Constitution of India, 1950 — Articles 226 and 227 — Writ petition by insurer, challenging the award of the MACT — Whether maintainable? — Held, since the insurer has a remedy by filing an appeal before the High Court on the available defences envisaged under the statute, writ petition under Article 226/227 of the Constitution by an insurer challenging the Award of the MACT is not maintainable — Motor Vehicles Act, 1988, SS. 173 and 149(2).

 
Thursday, May 11, 2006
Constitution of India, 1950

Constitution of India, 1950 — Aritcle 226 — Hire Purchase Agreement — Right to re-possess — High Courts entertaining writ petitions including writ petitions styled as PIL on the question of right of financiers to take possession of the vehicle in terms of the agreement — Held, essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petitions in such contractual matters is practically non-existence.

 
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