Articles
How Pakistan’s Ruling Classes Destroyed Their Judiciary And Their Democracy
The Indian judiciary has, of late, come under relentless pincer like attacks from several quarters of the ruling establishment. Repeated pot shots, (deliberately ignoring historical and structural contexts) have been made against the collegium system of appointments, the basic structure of the constitution and calls are even being made for an unaccountable supremacy of the Parliament. The latest missive demanding government representatives on the collegiums despite the declaration of NJAC...
Justice Madan Lokur’s Judgment In NJAC Case Has The Key To Recent Irritants Between Executive And The Judiciary
As the nation celebrates 74th Republic Day on Thursday, the ongoing stand-off between the Union Government and the Supreme Court Collegium over the appointment of Judges shows that Article 50 of the Constitution - a Directive Principle which calls upon the State to take steps to separate the judiciary from the executive in the public services of the State - is under severe stress. As Article 50 has been interpreted to refer to both subordinate and higher judiciary, any intensification of...
74th Republic Day : Lets Build A 'Constitutional Democracy' And Not A Mere 'Democracy'
Thucydides, a well-known Greek historian, criticised democracy by opining that democratic governments failed miserably “in the search for the truth." He believed that democracies produced demagogues who could sway public opinion with their rhetoric and rabble-rousing oratory skills, imposing their own interpretations of the truth on the masses. He further argued that this led to a failure of epistemic knowledge, leading citizens to believe in “silly things about their own past." What was...
Indian Penal Code And The Rainbow Community
As far as history can remember, the rainbow community has experienced persecution and atrocities. In fact, in paragraph number twenty of Navtej Singh Johar vs. Union of India the Supreme Court of India opined as follows: “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of...
CCI Not In Favour Of Most-Favoured Nation Clauses: A Case For Intermediation Platforms
In the last year, the Competition Commission of India (“CCI”) came down heavily on the digital sector, with it passing orders against Google, MakeMyTrip and OYO and imposing hefty fines on them. In addition to this, the parliamentary panel in one of its reports has also proposed bringing in a Digital Competition Act, an ex-ante framework, in order to regulate the anti-competitive practices in the digital market. On 19 October 2022, the CCI found MakeMyTrip India Private Limited, Ibibo...
Battle Between “Non –Obstante Clauses”
As commercial transactions become progressively complex each passing day, interplay amongst various statues has become part and parcel of such transactions, including any litigation born out of such transactions. Parties and courts should be mindful in interpretating various laws and regulations especially in situations wherein the relevant subject matter falls into the purview of multiple regulators and/or statutes. Therefore, a particular statute cannot be read in isolation but it has...
Rethinking Marketing For Lawyers In Modern India
Lawyers enrolled in India are not permitted to market their work. It is prohibited by the Bar Council of India Rules[1] as well as the Advocates Act, 1961[2]. This ban originated in Victorian England and has remained till date. Its basis lies in Indian social construct of ethics and morals which requires abstaining from promotion of work, an aspect that used to resonate with the UK of yore. Further, the legal profession is thought of as a noble pursuit with justice as its goal and any...
Supreme Court Collegium’s Landmark Reiterations Show It Is No Longer Pusillanimous
On Thursday, the Supreme Court’s three-member Collegium - comprising the Chief Justice of India, D.Y.Chandrachud and Justices Sanjay Kishan Kaul and K.M.Joseph - responsible for recommending suitable names for elevation as the High Court Judges, reiterated certain names recommended by it earlier, for elevation to various High Courts. Reiteration of a recommendation by the Collegium means that having reconsidered a previous recommendation in the light of reservations expressed by the...
Infrequent Use of Basic Structure Doctrine By The Courts Makes Fears Of Its Critics Misplaced
The Vice President, Jagdeep Dhankhar’s address at the inauguration of the 83rd All India Conference of Presiding Officers in Jaipur on January 11 appears to have drawn more attention than it deserved because of its timing. In his address, Dhankhar referred to the ‘basic structure’ five times. First, he said that ‘the basic’ of any ‘basic structure’ has to be the supremacy of mandate of people. He inferred from this understanding that the primacy and sovereignty of Parliament and...
IBC - When Does Limitation Begin To Run? Analysing SC Judgment In "V.Nagarajan vs. SKS Ispat"
V.Nagarajan vs. SKS Ispat[2] is a much-misunderstood case. The National Company Law Appellate Tribunal (NCLAT), while dealing with appeals under the Insolvency & Bankruptcy Code, 2016 (“IBC”), has been dismissing many as being barred by the statute of Limitation. NCLAT cites Nagarajan to conclude it has no power to condone delay for any period over and above 15 days after the expiry of 30 days from the ‘date of the order’ (“Order”) of the Adjudicating Authority (“AA”). Consequently, an...
Interpretation Of Wills In India: A Testament Of Intentional Fallacy
Wills are not merely a legal document of division of property among beneficiaries, it is a writer’s dying declaration of love and commitment towards safeguarding the future of its beneficiaries. Freedom of testation is an emblem of personal freedom of the testator[1]; it protects the intention of the testator to choose the persons and properties it chooses to devolve among their benefactors in accordance with the law, without particularly following the regime of natural succession. On the...