In his recent judgment in Swaraj Abhiyan v Union of India and Others, indicting the Centre for its inaction and the states which defied the National Food Security Act, 2013, Supreme Court Justice Madan B Lokur, drew attention to Article 256 of the Constitution, calling it a “forgotten” provision. The learned Justice may indeed be correct, as it is not very often that one comes across this provision in the public discourse.What does the Article say?The first part of the Article says the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.The second part explains that the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.If the first part is complied with voluntarily by the States, it would seem that the second part might be redundant. On the other … [Read more...] about Article 256 of the Constitution: An Explainer
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Apart from the implications it holds for Muslim Divorce Laws, the Triple-Talaq judgment of the Supreme Court has piqued the interest of legal fraternity for a different reason as well. Justice Nariman’s view(endorsed by Justice U.U Lalit) that arbitrariness can be a ground for striking down a legislation has sparked a lot of discussions among the legal commentators. Justice Nariman expressed the view by overruling the dictum in State of Andhra Pradesh vs. McDowell & Co. AIR 1996 SC 1627, which had held that a legislation cannot be struck down on the grounds of arbitrariness or unreasonableness(Incidentally, Justice Nariman has now adopted the proposition which was unsuccessfully advanced by him as a lawyer in McDowell case). The declaration in McDowell was as follows : No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the … [Read more...] about Triple Talaq Case :- Can Justice Nariman’s View On Arbitrariness Be Treated As A Binding Declaration Of The Constitution Bench?
Constitutional Set-up: The Constitution of India, 1950, like the most post-war constitutions, was based on the Westminster Model i.e. bicameral legislative bodies at the Centre and unicameral/bicameral legislatures in the states. The Constitution of India is federal in character and it recognises the existence of a legal system founded upon the rule of law and on the principle of legality, eschewing arbitrariness and ensuring equality before law and equal protection of laws within the territory of India. The federal structure of the Indian Constitution is largely reflected in Part XI of the Constitution of India, 1950, which is largely drawn from the Government of India Act, 1935. Every state in India has a High Court (some smaller states share a common High Court) and the subordinate-judiciary in each state is under the administrative and judicial control of the concerned High Court of the particular state. The law declared by the Apex Court i.e. the Supreme Court of India, is … [Read more...] about Article 370 Of The Constitution Of India, 1950 & The Security Interest Act, 2002
A Bombay High Court Bench comprising of Justice A.S. Oka and Justice C.V. Bhadang in a recent order observed that citizens have a Fundamental Right to good roads and it is the State Government’s statutory obligation to maintain the roads.The directions were given during the hearing of a suo motu Public Interest Litigation taken up by the High Court in 2013.The Court directed BMC, Maharashtra State Road Development Corporation (MSRDC), Mumbai Metropolitan Region Development Authority (MMRDA), Mumbai Port Trust and others to ensure that the potholes are taken care of before the onset of monsoon. The Bench asked them to submit a compliance report by July 6.Further, a direction was issued to provide a mechanism to enable the citizens to file complaints about poor maintenance of roads. As of now the BMC has a helpline that operates for just four months (June 7-Oct 7). This, the court held, was not correct.“The facility of receiving complaints shall be made … [Read more...] about Properly maintained roads is a part of Fundamental Rights under Article 21 of the Indian Constitution: Bombay High Court
Appearing for the Centre for Public Interest Litigation, Advocate Prashant Bhushan submited before the Constitution Bench that National Judicial Commission in its current form does not ensure judicial integrity and violates the basic structure of the Constitution. Here is the full text of his submissions The instant petition has challenged the validity of the Constitution 99th Amendment Act, 2014 and of the National Judicial Appointments Commission Act 2014. The petition has also sought a direction to the Union of India to set-up a broad-based full-time body for the selection of the judges of the Hon’ble Supreme Court of India and the Hon’ble High Courts that would work in a transparent manner and would evaluate candidates on set objective criteria. Submission Judicial integrity, judicial independence and judicial review are part of the basic structure of our Constitution as held in SCAORA case [1993(4) SCC 441]). Judicial integrity and independence is necessary for the … [Read more...] about NJAC does not ensure judicial integrity and violates the Basic Structure of the Constitution; Prashant Bhushan [Read the full text of submissions]
Setting aside a two Judge Bench judgment of the Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai and others, a Supreme Court bench comprising of Chief Justice H.L. Dattu, Justice A.K. Sikri and Justice A.K. Goel has ruled that judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution and that jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.The Bench was hearing a matter placed before it by a Bench of two Judges, in order to consider the correctness of the law laid down by the Court in Surya Dev Rai vs. Ram Chander Rai and others that an order of civil court was amenable to writ jurisdiction under Article 226 of the Constitution of India.The Bench of two Judges had observed that the judgment in Surya Dev Rai did not correctly appreciate the ratio in the earlier Nine Judge judgment of the Apex Court in Naresh Shridhar Mirajkar and others vs. State of Maharashtra wherein the … [Read more...] about Judicial orders of Civil Court are not amenable to Writ jurisdiction under Article 226 of the Constitution [Read the Judgment]
A Three Judge Bench of the Supreme Court comprising of Justices Anil R Dave, Madan B Lokur and Kurian Jospeh held that it is not open to the High Court to declare a Supreme Court Judgment per-incurium. It is also held that by not following the law laid down by this Court, the High Court or the Subordinate Courts would also be violating the provisions of Article 141 of the Constitution of India.Reversing the Judgment passed by High Court of Andhra Pradesh, Supreme Court in South Central Railway Employees Co-Op. Credit Society Employees Union v.Yashodabai and others [Civil Appeal 7130/2012] held as follows; “If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. … [Read more...] about It is not open to the High Court to declare a Supreme Court Judgment per-incurium. By not following the law laid down by the SC, HCs and Subordinate Courts would also be violating the provisions of Article 141 of the Constitution of India; SC [Read Jt]
In a major setback to the bar owners in Kerala, the Supreme Court has upheld the controversial Abkari policy for the year 2014-2015 framed by the Kerala Government restricting the issuance of bar licenses (FL-3) to five-star hotels in the State to serve alcohol to the public, and not to renew the existing bar licences issued to any of the other hotels. Additionally, the Government had decided to close down 10% of outlets out of 338 FL-1 outlets of Kerala State Beverages Corporation and 46 outlets of Consumer Fed each year from 2nd October, 2014 onwards.The Abkari policy so formulated by the Kerala Government as well as the amendments to the Foreign Liquor Rules was assailed before a Single Judge of the Kerala High Court by the writ petitioners, which included hotels classified as Two Star, Three Star, Four Star and Heritage hotels. While dismissing the writ petitions, the Single Judge vide judgment dated 30.10.2014 carved out an exception vis-a-vis the eligibility of Four Star and … [Read more...] about Kerala Liqour Policy; Placing a moratorium on hotels other than Five Star is not a violation of Article 14 of the Constitution; SC [Read Judgment]
A two Judge Bench of the Supreme Court of India Today held that it may not be possible to strictly enumerate as to who all will have locus to maintain an appeal before the Supreme Court invoking Article 136 of the Constitution of India, it depends upon the factual matrix of each case, as each case has its unique set of facts.The Bench comprising of Justices V. Gopal Gowda and U.U. Lalit also held that the Court should be liberal in allowing any third party, having bonafide connection with the matter, to maintain the appeal with a view to advance substantial justice.“However, this power of allowing a third party to maintain an appeal should be exercised with due care and caution. Persons, unconnected with the matter under consideration or having personal grievance against the accused should be checked. A strict vigilance is required to be maintained in this regard” said Justice Gowda in his Judgment .The Court also explained the principles relating to … [Read more...] about Can a Private Party has the locus to file an appeal before Supreme Court invoking Article 136 of the Constitution of India?
However, the issue under controversy is not whether its (CPC)application should be waived, rather whether it applies or not, the Court said. Single Bench of the Patna High Court has referred to Division Bench, the question whether procedure prescribed in Code of Civil Procedure would apply to the petition under Article 227 of the Constitution of India, whenever matter is against the order passed by Civil Court.The issue arose while considering Interlocutory Application filed by sons of petitioners (who died about two years ago) in a petition under Article 227 of the Constitution for the purpose of substitution. Their contention was that, writ is a constitutional power inherently possesses by the High Court for efficacious remedy.They further contended, relying on Harakh Nath Singh V. Lodha Singh reported in 1978 P.L.J.R. 659 (D.B), that, Article 120, 121 of the Limitation Act which governs the event of substitution in terms of Order 22 of the CPC is not applicable to … [Read more...] about Applicability of CPC to a Writ petition under Article 227 of the Constitution of India: Patna HC refers issue to DB [Read Judgment]