A fraud on the Constitution

In a democracy, normally, the Legislature alone legislates. In India the Judiciary and the Executive also legislate.The Judiciary’s power to legislate flows from a clause in the Constitution which says the Supreme Court’s decisions have the force of law. The court has, through judgments, written new laws and even made changes in the Constitution.The Executive’s power to legislate is derived from the articles that authorise the President and the Governors of States to promulgate ordinances to...

Hamsakoya vs. State of Kerala (2015 (2) KHC 206) – A Product of Precedents and Perspective

‘Investigation, if done by an Officer though equal in rank but lack territorial jurisdiction, vitiates trial’.   This statement of law in the decision reported in Hamsakoya Vs. State of Kerala (2015 (2) KHC 206) drew flak from one of the former Judges of the Hon’ble High Court of Kerala, Justice V. Ramkumar.   The ratio decidendi deduced from the decision was rendered in the back drop of an offence under Section 55(g) of the Kerala Abkari Act, which penalises keeping of wash for brewing...

Environmental Protection in India only through judicial intervention

Seven Billion Dreams. One Planet. Consumer with care. That is the theme of the World Environment Day, 2015. It is the dream of every Indian who visited Singapore that why we cannot make the environment of our country like that.The life of Indian has been reduced two to three years due to air pollution, the recent study by the WHO declared.  Indians cannot drink water from natural sources due to severe water pollution. The holy rivers in many states have become sewage canals.  People work on the...

The Leader of Indian Bar: Changing Horizons of the office of The Attorney-General for India

The Attorney General for India is a constitutional office and is held by a person qualified to be appointed a judge of the Supreme Court. The Attorney General continues in office “during the pleasure of the President,”[Article 76(4)] a dignified phrase that has its medieval origins in the notion of holding office “during good behaviour.” In actual practice it means until the AG enjoys the confidence of the Prime Minister and his Council of Ministers as the country is governed by the...

The Curse of the Kangaroo

“You do not need to accept everything as true, you only have to accept it as necessary.”― Franz Kafka, The TrialIn less than two years after a military coup, Egypt's  elected ​ former ​ Presiden​​t ​Morsi ​has been sentenced to death. Morsi has been tried with everything: leading prison breaks, conspiring with Hamas and Iran, espionage, judicial contempt, inciting crowds to rioting. The method ​ of the prosecution​  was by any standards Kafkaesque. The former President was kept    incommunicado...

Scope of Automatic Disqualification & Rule of Bias in post retirement practice

A judge, who had previously been associated with crown, as its Minister, is precluded from hearing the validity dispute of the Crown Statute, to avoid the causes of prejudice and it is taken as one of the rule against bias. Hostility or even special relations are treated as causes of prejudice in judicial adjudications, and thus the Bar Council of India Rules, in Part VI, Chapter II, Rule 6, expressly prohibits practice before a relative Judge. In the given situations, the first instance is a...

Bar Scam Case; Legality of submitting Final Report before Legal Officers for legal Scrutiny and Expert opinion [Updated]

It is recently reported in media that “the probe into the (Kerala) bar bribery scam, allegedly involving (Keral) Finance Minister K M Mani, is nearing its end. The investigating officer informed the Vigilance Court here on Friday that the final report will be submitted after availing legal scrutiny and expert opinion. Vigilance SP Sukesan R, who heads the probe team, told the court that the final report will be filed as soon as all the formalities are completed. However, he said that these...

A miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent; Judgment in “Hamsa Koya v/s State (2015(2) KHC 206) rendered without adequate research, sets a wrong precedent

In a prosecution for an offence punishable  under Section 55(g) of the (Kerala) Abkari Act, 1077 M.E. for having found in possession of 16 litres of wash on 14-02-1999, the Additional Sessions Court (Ad hoc-1), Manjeri, after trial, found the accused guilty and sentenced him to undergo rigorous imprisonment for  5 years and to pay a fine of Rs.1,00,000/- and on default to pay the fine to undergo simple imprisonment for one year.  The accused preferred an appeal before the Hon’ble High Court...

Controlling Thoughts by the Empire : Importance of Shyam Balakrishnan v. State of Kerala

"Where the mind is without fear and the head is held high: where knowledge is free ... Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit: Where the mind is led forward by thee into ever widening thought and action let my country awake….".    It was with the above immortal words of Rabindranath Tagore, Justice O. Chinnappa Reddy concluded his Locus Classicus ‘State Of Madhya Pradesh Vs. Ramashankar Raghuvanshi’ [AIR 1983 SC 374]. It was a case wherein...

Syam Balakrishnan Case - A New Bill of Rights on Personal Liberty

A coming back of heydays for Constitutional Law!!!!!  Inertia on Interpretational exercise appears waning.  Vibrant connotations on Constitution are in the horizon!  ‘Personal liberty’, a concept slowly fading, is again back on its track to the core of constitutional jurisprudence.  This is the feel of euphoria now hovers in the legal circle with Justice Muhammed Mustaque’s judgment in ‘Syam Balakrishnan’ case. ‘Being Maoist is not a crime’ – a captivating caption is given to the judgment by...

A Black Bill on Black Money

The popularly termed Black Money Bill came to Rajya Sabha for discussion on May 13. I could only watch with great irritation and some amusement the magnanimity of the Presiding Chairperson of allowing all supporters of the Bill to consume almost the entire two hours allotted for discussion and disposal of the Bill. I must say I was a little surprised that the Congress Party also supported the Bill. Was it brilliant 'floor management', or depth of strategic partnership?My conscientious objection...

Why you should oppose the Juvenile Justice (Care and Protection of Children) Bill 2014

Since the Nirbhaya rape in Dec. 2012, media has been repeatedly demonizing children found involved in commission of serious offences, leading to a public outcry against the protective approach of the Juvenile Justice Act 2000. Children have become the target of media attack and very severe scrutiny if they commit an offence. Even though the child involved in Nirbhaya was found not be the most brutal, he continues to be referred like that just because one police officer said so without any...