To redefine the maxim “Pater est quem nuptiae demonstrant”

The meaning of the above maxim is that the father is he who is married to the mother. The above maxim is well accepted in India through section 112 of the Indian Evidence Act, 1882 (the Act). The section 112 of the Act says as follows:-“112. Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried,...

Justice Krishna Iyer: A man of light and learning; a seeker after justice

Krishna Iyer is no more. He has left behind us a rich legal legacy worthy of emulation. He was undoubtedly one of the greatest judges and legal experts that the world has ever produced.  He was a great soul. His soul was in anguish for the millions of ‘Dharithranarayanans’ of the country. He was guided by Jerome Frank’s theory that courts in a democracy do not belong to lawyers or the judges, but they belong to the people. Throughout his career as a judge, he stuck to this ideological base and...

Some Thoughts on the Admissibility of Electronic Records in the Light of Anvar P.V.vs P.K. Basheer

The Honourable Supreme Court in Anvar P.V. vs. P.K. Basheer overruled the part of the judgment held by that Court in State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru, relating to the admissibility of electronic records. As we all know, the law governing the admissibility of secondary evidence of electronic records is governed by Section 65B of the Indian Evidence Act (the Act, for short) in general, and as to the Banking documents, Section 2(8) of the Banker’s Books Evidence Act, in...

Re-writing the Concept of Burden of Proof; Supreme Court Judgment in Sher Singh @ Partapa Vs. State of Haryana requires re-consideration

The golden rule that runs through the web of civilised criminal jurisprudence is that an accused is presumed to be innocent unless he is found guilty of the charged offence. Presumption of innocence is a human right as envisaged under Art.14 (2) of the International Covenant on Civil and Political Rights 1966. Art.11(1) of the Universal Declaration of Human Rights 1948 also provides that any charged with penal offences has a right to be presumed innocent until proved guilty according to law in a...

Inherent powers of the High Court - Sec. 482 Cr.P.C.

Courts subordinate to the High Court have no inherent power  under Sec. 482  Cr.P.C. or otherwise  (See  AIR 1977 SC 2432 -  Mithabhai  Pashabhai  Patel  v. State of Gujarat  - (2009) 6 SCC 332).A Magistrate  has no inherent power   to restore a complaint  dismissed for default.  As soon as the complaint is dismissed the Magistrate becomes  functous officio and  has no longer any power to rehear the  complaint.  A power to   restore a complaint   dismissed for default by the Magistrate   is...

Sanction for referring a Complaint (against public servant)for investigation under S.156(3) of the CrPC – Anil Kumar’s Case [(2013)10 SCC 705] is per-incurium

"Be you ever so high, the law is above you. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously”. [Vineet Narain Vs. Union of India AIR 1998 SC 889 ; (1998) 1 SCC 226].A two Judge Bench of Supreme Court in Anil Kumar and Others v. M. K. Aiyappa and Another [2013 (10)SCC 705 ] held that a Special Judge / Magistrate cannot refer a Complaint for...

Reservation for Other Backward Classes - Affirmative Action or Politics at Work

In the cacophony surrounding the term ‘reservation’, any attempt at a rational debate on the subject is a risky venture. The inclusion of Jats and Marathas in the category of “other backward classes” and statements of the new dispensation on minorities have added to the conundrum. Presently, the inclusion of Marathas stands stayed by the Bombay High Court.To unravel the present controversy, we need to understand the scheme of reservation in the case of "Other Backward Classes" which is a...

Rebooting Administration of Justice

‘Tarikh pe tarikh’ – This cynical Bollywood expression about the functioning of courts in the country has possibly captured the reality of the system as closely as can be.I have heard this catchy phrase from many consumers of justice on their retreat from court rooms. Last year, the former Chief Justice of India, Justice RM Lodha proposed a novel concept of ‘365 days working court’ to deal with the mounting arrears. The laudable but impractical idea, nonetheless, has evoked the right responses...

Precedents on Precedents; Choice between Conflicting Ratios of Equal Strength; An Area of Precedential Chaos

In Jurisprudence, Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. Article 141 of the Constitution of India reads as below:"The law declared by the Supreme Court shall be binding on all courts within the territory of India."But as regards the application of Precedents of the High Courts there is no direct Constitutional provision as Article 141. A three Judges Bench of the Supreme Court considered the question in M/s. East India...

Fadl, first doctor, to be brought to trial in Egypt on charges of female genital mutilation was acquitted: he said “ ask those human rights activists to come to me and I will teach them about human rights’’.

Human rights are going through tough times. Egypt’s first female genital mutilation trial ended in not guilty verdictThe first doctor to be brought to trial in Egypt on charges of female genital mutilation (FGM) has been acquitted, crushing hopes that the landmark verdict would discourage Egyptian doctors from conducting the endemic practice.Raslan Fadl, a doctor and Islamic preacher in the village of Agga, northern Egypt, was acquitted of mutilating Sohair al-Bata’a. Her father, Mohamed...

Welcome Supreme Court judgement on making ‘In-House’ proceedings against judges public: Supreme Court should urgently decide its own cases against CIC-verdicts

It refers to welcome Supreme Court verdict directing Chief Justice of Madhya Pradesh High Court to divest a judge of that court, accused of sexually harassing a woman subordinate court judge of Gwalior from undertaking administrative and supervisory functions. Elaborative verdict further opens a new door to transparency when it made in-house proceedings in the matter public in order to address concerns of institutional integrity and sustain the public confidence. But there has been a...

Judiciary - A Near Feudal Set Up and Superintendence

It took a long time for me to decide on writing this chapter; writing this chapter is likely to tread on some delicate and fragile toes in High Courts and Supreme Court.  What ultimately decided me was what some friends of mine told me “If you do not write on such a subject, nobody else will write on it”.  I have personal experience of one High Court as judge and acting Chief Justice and two High Courts as Chief Justice.  Ever since my settling down in Bangalore and practicing as senior...