Antonin Scalia & Originalism : A Critique

Justice Antonin Scalia, a famous Judge of the US Supreme Court was found dead yesterday at a resort in West Texas. Scalia, 79, was considered one of the most influential judges of the last quarter century and an expert in constitutional law. His most important and perhaps the most controversial work was the theory of Originalism as a tool of constitutional interpretation.In his address delivered on September 16, 1988 at the University of Cincinnati as the William Howard Taft Constitutional Law...

Cancellation of Bail; Answer to Queries

Justice V. Ramkumar, former Judge of Kerala High Court has written two Articles in Livelaw regarding Cancellation of BailCancellation of Bail ; Kerala HC Jt in James George @ Basaliyos Marthoma Yakob -Pradaman v. State – 2015 (4) KHC 943 does not appear to be correctIs the High Court Right in Re-Affirming that Sections 437 (5) and 439(2) Cr.PC. are not Provisions for Cancellation of Bail? We have received many queries relating to the subject. In this Article Justice Ramkumar answers the...

Article 356: Dead Man Walking?

It took political man centuries to realize that the good society, in which he possessed rights and in which these rights were secured, was conditioned on the containment of the power holders, whatever the legitimation-factual, religious, or legal. In time this purpose appeared to be served best by articulating the restraints, society wished to place on the power holders in the form of a set fixed rule-the “constitution”—limiting their exercise of political power.Constitution of India though, has...

Unsettled Right to Privacy can unsettle RTI ?

Government agencies are using right of privacy to stonewall the requests for information. Privacy of a person need to be protected but public interest is higher than the private interests. Apex court and several High Courts’ verdicts also offered this protection to individuals working in public offices, at the cost of people’s right to information.In a common capital where two chief ministers existed, both were making statements mutually leveling serious criminal allegations.  When one Chief...

Packer’s models of criminal process, Scalia’s Originalism and Bobbit’s constitutional modalities ; Parrando’s Paradox in Sec 377

Perhaps the most hotly debated provision of India’s richly woven legal fabric today is Section 377 of the Indian Penal Code (IPC). In a nutshell, this provision is embedded in the chapter XVI (Of offences affecting the human body) and under a separate heading ‘of unnatural offences’ prohibits carnal intercourse against the order of nature with any man, woman or animal. Notably, it stands separate from the heading ‘of sexual offences’ in the same chapter. Terms ‘man, woman’ & ‘animal’ are...

Will the curative be the cure?

It may not be an exaggeration to say that the Supreme Court of India is the most dynamic organization of the Indian state. While some of its decisions are dire, the Supreme Court has time and again come to the rescue of the citizens, upholding the noble values set out in the Constitution. Recently, it did something similar, when it referred to a Constitutional Bench (i.e. a five judge Bench) a curative petition against Section 377 of the Indian Penal Code (“IPC”) which, penalises sexual...

Justice K .S.Paripoornan – Justice Guaranteed

Our state has lost an eminent jurist on fiscal statues by the death of Justice K S Paripoornan. He is the guardian of courts. I remember an occasion where His Lordship, after retirement, has found that a division bench of the Kerala High Court has rendered a judgment without looking into the earlier Supreme Court judgment on the subject. He immediately called the junior judge of the said bench and told him. The judge has given an answer that the said decision was not brought to their notice....

A Stay Order Turns into a ‘SAVE ORDER’

Painful are the happenings in the State of Kerala. For the last 2 years political scenario is turning tumultuous.  Distasteful, despicable events denigrating the entire political spectrum are coming out in cascade.  Truly the politics of Kerala has pinned down to three Ws – women, wealth and wine.Corruption is really the antithesis of democracy.  People select their Sovereign investing power with trust with the fond hope of their protection, orderliness and welfare.  When the Sovereign starts...

‘Public Policy’ under Indian Arbitration Law

IntroductionTo avoid the infamous ‘tareekh pe tareekh’ defect our judicial system suffers from, alternate dispute resolution (ADR) mechanisms were adopted with major changes to the previous legal theories by putting in legal parlance the Arbitration and Conciliation Act, 1996 in post LPG era. Sec. 5 of this Act categorically provided for minimal judicial intervention. However, opposite to what was sought, judicial interference made the process even slower. Reportedly, Attorney General while...

Hon’ble High Court, You are also wrong!

Corruption is an oxygen mask to boost the public administration, to serve the people; that too in a Country, where the right to service is treated as a prominent right of the citizen. It is even treated as a necessary evil among the public servants, starting from a village man to the high offices of the Ministers.Either in “bar bribe” or in “solar bribe” in Kerala, which are the most debating issues in the current scenario, the credibility of the persons officiating high offices are exposed...

Media interference in Investigation and Trial

Democracy is a way of life; it must maintain human dignity, equality and rule of law. It requires strong public opinion, fearless press and independent judiciary. The importance of free and fearless press cannot be overemphasized. Thomas Jefferson once said:"Where it is left to me to decide what we should have, a Government without newspapers or newspapers without Government, I should not hesitate to prefer the latter", Freedom of the press, however, is not an end in itself, but it is only a...

To Bell the Cat

ABSTRACTThe  author through this paper submission is intending to chip in the thought process and intricacies  of the much anticipated and proposed ‘Fraud Act’ to curb the modern white collar crimes sprouting in the society. 1.The sky high powers of the executive engrossed with the wisdom of the legislature and the magnanimity of judicial interpretations has often succumbed, suffered, scoffed, struggled to engrave and embalm within its finger fold the proactive and protective mechanism which has...