🔥 State Emergency/ President rule

☑️Static Provisions - Article 356, 355, 365, Quasi- Federal.

☑️Current Topic - Suo Motu by S.C. in Manipur Tribal Conflict

☑️Other Case laws -
- State of Rajasthan vs Union of India (1977)
- Minerva Mills Ltd. vs Union of India (1980)
- Rameshwar Prasad and Others vs Union of India and Another (2006) etc

☑️More Important for prelims.

#constitution

#emergency #cases

We will explain them in our coming posts.

Here is a Recent constitution Bench Judgement delivered by 5 Judges Bench Headed by Justice SK Kaul .

It can dissolve a marriage on the grounds of 'irretrievable breakdown' of relations w/o refering to family court. Excercise its power U/A-142 COI which empowers the top court to pass any order that it deems neccesary for 'complete Justice' in any matter pending before it .

One Set of Question - what could be the broad parameters for the excercise of power U/A -142 COI to dissolve a marriage b/w consenting parties w/o refering them to family court to wait for mandatory period prescribed U/S - 13(B) of HMA 1955 ?

Whether the excercise of such jurisdiction by apex court U/A 142 should not be made at all ?

Whether such excercise should be left to be determined in facts of every case , use earlier refered to constitution bench ?

It held that the period of 6 months can be dispensed with subject to the requirements & conditions as specified in 2 judgements of this court . (Justice Khanna).

The bench also considering whether its 'sweeping power' U/A - 142 are inhibited in any manner in a scenerio where a marriage has irretrievably broken down in opinion of court but one of the parties is sesisting divorce .

it observed that social changes takes a 'little time' & sometimes it was eaiser to bring a law but difficult to persude society to change with it .

#irretrievable_breakdown - due to failure of the matrimonial relationship and the couple can no longer live together as man & wife .

Case - shilpa sailesh vs varun sreenivasan 2023

#family_law #complete_justice

'Dissents that Shaped Our Constitution'

Important 6 judgements.

You can mention this as the chief result in Article 19(1)(a) that is freedom of speech as every voice should be heard.

Topic: Freedom of speech vs Hate speech ( An example under FOS)

👩‍⚖️Don't forget justice B.V. NAGARATHNA

#constitution #judges
https://www.livelaw.in/top-stories/senior-advocate-arvind-datar-dissents-that-shaped-our-constitution-207652

Important Judgement Delivered by Constitution bench 5 Judges bench

A Judgement Delivered by a larger bench will prevail irrespective of the no. Of judges constituting the majority .

In view of A.145(5) a majority of the judges at the hearing will be considered as a Judgement or opinion of the court.

Case title M/S Trimurthi Fragrances (P) Ltd. V/s Govt. Of NCT of Delhi 2022

Landmark

Supreme Court judgment on writ of certiorari.

The court summarizes two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari.

"In granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal.

"The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking."

"In a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not."

Central Council for Research in Ayurvedic Sciences vs Bikartan Das | 2023 INSC 633

#constitution #certiorari #writ #case

💎FREE Premium Subscription Article

Explained | Why is Bihar’s caste-based survey facing a challenge in the Supreme Court? - The Hindu

👉Survey of Salary and Caste by bihar GOVT.

☑️CONSTITUTIONAL LENS
• Union List - Entry 69
• Ministry of Home Affairs.
• Article 246

Over All you can relate each provision of constitution with census as it is related to people of India which is a Democratic Country therefore whether it is Social Justice under DPSP or delimitation or Right to Equality from 14 to 18.

☑️Survey vs Census
The Court highlighted that a ‘census’ includes the collection of accurate facts and verifiable details, while a ‘survey’ is intended for the collection and analysis of opinions and perceptions of the general public, aimed at a specific community or group of people.

☑️Contentions by opposition
🔥State government competence-
🔥Data Privacy issue-


☑️PATNA HIGH COURT affirmed:
• Appointment of commissions is not the only procedure for the identification of backwardness.
(Indra sawhney)
• K.S. Puttuswamy case - reasonable restrictions on data privacy.
• Executive authority is competent to frame a policy for better administration of the State.

THE MATTER TO BE DISCUSSED IN SC ON 18TH AUGUST

https://archive.fo/2023.08.17-131823/https://www.thehindu.com/news/national/explained-why-is-bihars-caste-based-survey-facing-a-challenge-in-the-supreme-court/article67167395.ece/amp/

[Affinity test cannot be the litmus test to decide a caste claim: SC]



👉WHAT:::::An affinity test mandates the study and preparation of a report by authorities on caste/tribe claims based on the peculiar anthropological and ethnological traits, deities, rituals, customs, mode of marriage, death ceremonies, methods of burial of dead bodies, etc, of the particular caste or tribe and the applicants knowledge of them.


👉S.C ruled :::::"affinity test can never be conclusive” to prove a caste/tribe claim.



👉Case title:: PRIYA PRAMOD GAJBE VS MAHARASTRA STATE.



#AFFINITYTEST #NOTCONCLUSIVE

👉Justice FATMIA M BEVI; the first women judge of the Supreme Court of India.(1989)

👉Justice LEILA SETH;
First women judge of Delhi H.C.
She was also to become the first CJI of Himachal Pradesh H.C on 1991.

✨In high courts, the percentage of women judges is a mere 11.5%, while in the Supreme Court there are three sitting women judges out of 34(including CJI) in office.
The situation of women lawyers in the country is not any better. Out of 1.7 million advocates registered, only 15% are women.



#MAINS #STATICGK #DATAWRAPPER #1st.

⚔️Legal Attack on the Stereotypes on Women

1. Joseph shine vs UOI 2018
The role of law in confronting patriarchy and stereotypes.

2. Criminal Laws Amendment 2013
Rejection of pre vaginum test (or “two finger test”) and irrelevance
of sexual history.

3. State of Punjab v. Gurmit Singh

there should be no presumption that the testimony of a survivor or victim of sexual violence is not credible, nor should courts display an inherent suspicion of testimony on the incorrect assumption that women as a class of individuals lie about sexual violence. Rather, the testimony of a survivor must be accorded due weight as the victim of any other crime.

4. State of Uttar Pradesh v. Chhotey lal

An absence of injuries does not automatically lead to a presumption that the sexual intercourse was consensual or that the survivor or victim’s testimony is not credible. (Act can be on gun point to family members)

5. State of Himachal Pradesh v. Gian Chand

Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not.

Topic: Role of Judiciary in empowering women.

#Gender_Justice

Important Judgement Given by Hon'ble SC by 3 Judges' Bench

Recognising sex work as profession

Every individual in this country has rt. to dignified life A.21

Prostitution is not illegal in India

Police cannot take criminal action against adult and consenting sex workers

Govt. should make schemes for sex workers Rehabilitation of sex workers

DIRECTION BY SC BY USING A.142

• Equal protection of law
• Rt. against harrasment
• Non-disclosure of the identity
• Directs UIDAI to issue Aadharcard to sex workers w/o insisting on proof of residence

Note: Running a brothel is still illegal under PITA act.

Case Budhadev Karmaskar vs st. Of west Bengal

#Constitution #Article_21

@CurrentLegalGK

Bhanwari Devi's case and Vishakha guidelines.

#POSH #workplace

Why is it Important for Judges to Use the Right Words?

The language a judge uses reflects not only their interpretation of the law, but their perception of society as well.

Even when the use of stereotypes does not alter the outcome of a case, stereotypical language may reinforce ideas contrary to our constitutional ethos.

Language is critical to the life of the law. Words are the vehicle through which the values of the law are communicated.

Words transmit the ultimate intention of the lawmaker or the judge to the nation.

✅ EXCELLENT USE - While writing your Answer just mention one of the new term and in bracket use the old one.

#quote
#Discernible_Topics
@CurrentLegalGK

2023 Important Judgements brief.pdf

🗳️Election commission of India

Issue: Appointment procedure of CEC & ECs

📈RECENT DEVELOPMENT

👉 Bill Introduced in parliament—
The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023

•To override the S.C. unanimous verdict—

👉 [S.C. verdict] 2023
Anoop Baranwal v. Union of India

👨‍⚖️Constitutional bench comprising

• K.M. Joseph • Ajay Rastogi
• Aniruddha Bose • Hrishikesh Roy
• C.T. Ravikumar

🗡️Issues:
1. Does the current process for ECI appointments violate the right to equality❓

2. Does the current process for ECI appointments violate the right to free and fair elections❓

🔊📢Contentions by Both the sides

◽Petitioner—
• Article 14 - Arbitrary
• No law made under 326 till now
• Independence of ECI

◽Respondent—
• Parliament not obliged to make law for appointment under 326.
• Article 50 - Separation of powers.

🔥Held- [Not a Mandamus writ but interim order untill law is enacted this is also known as Stop Gap Measures.]

♦️High power committee comprising of (CJI, PM & leader of opposition) will make recommendations to president.
♦️Term of ECI is not 6 yrs currently due to erroneous appointments.
♦️Freedom to vote (A.19) To whom?
Right to vote (A. 326) Can you?

♦️Right to vote is merely a constitutional right by majority
(but Dissent by justice rastogi cited Article 15, 17 ,19 and 21 Due to princely states it was not made F.R. at that time)

✅Readings referred by Court—

☑️255th Law commission reports.
☑️Constitutional debates.
☑️2nd Adminstrative reforms commission.
☑️Electoral Reforms 1990 & 2010

✅Extra readings—
✓Kesavanamd bharti - Rule of Law
✓Shamsher singh vs Punjab -
(Article 50)
✓People’s Union
for Civil Liberties v. Union of India -
“Free and fair election is a basic structure of the Constitution.
✓ Vineet Narain & Ors. v. UOI
Court spelt out its obligation under Article 32 to protect and enhance fundamental rights even in the absence of legislation.
✓ 1992 cases on fair elections.
•Kihoto hollohan
•Common cause vs UOI
✓ Types of Voting Rights
✓ Election petition
✓ Role of judiciary and ECI in case of conflict/misconduct in election.
✓ Freebies, election manifesto etc..
🚀 @CurrentLegalGK

#Case_brief
#Electoral_reforms #Judicial_activism
#Executive_vs_judiciary

Important Judgement Given by Hon'ble SC 2 Judges Bench CJI DY CHANDRACHUD & HIMA KOHLI

Prohibiting 'Two-Finger Test' in rape cases

Two Finger test was conducting on the victim to determine whether she was raped (Hymen Checking)

Women can't be believed when she states that she was raped merely for the reason that she is actively active.

Incorrect assumption that a sexually active women can't be raped .

The Two finger test has no scientific basis, it instead re-victimises & re-traumatises woman.

Earlier a judgement was delivered by SC regarding prohibition on Two finger test

Lilu vs st.of Haryana 2013 held that two finger test violates the Rt.of privacy of a woman #Article21.

SC IF ANYONE CONDUCTS A TWO FINGER TEST ON A SEXUAL ASSAULT VICTIM IT WILL BE CONSTRUED AS THE OFFENCE OF MISCONDUCT & WILL BE PENALIZED ACCORDING.

Also SC stated it's based on patriachal mindset that sexually active women can't be raped

A woman's sexual history is immaterial while adjudicating whether the accused raped her .

CASE - ST. OF JHARKHAND VS SHAILENDRA KUMAR RAI 2022

#Sec_53(A)_IEA_1872 “evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences”.

Supreme Court Seeks Centre’s Response On Plea To Decriminalise Consensual Sex By 16-18 Year Olds
https://www.livelaw.in/top-stories/supreme-court-seeks-centres-response-on-plea-to-decriminalise-consensual-sex-by-16-18-year-olds-235623

⚡🔥 Secunderabad Club vs CIT | 2023/ ARTICLE 141 EXPLANATION

Observations regarding the concept of ratio decidendi and binding.

1. What is binding in terms of Article 141 of the Constitution is the ratio of the judgment and as already noted, the ratio decidendi of a judgment is the reason assigned in support of the conclusion.

2. The reasoning of a judgment can be discerned only upon reading of a judgment in its entirety and the same has to be culled out thereafter.

3. The ratio of the case has to be deduced from the facts involved in the case and the particular provision(s) of law which the court has applied or interpreted and the decision has to be read in the context of the particular statutory provisions involved in the matter.

4. An order made merely to dispose of the case cannot have the value or effect of a binding precedent.

5. Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned.

6. The decision is an authority for what is specifically decides and not what can logically be deduced therefrom.

7. The precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with.

8. Declaration of the law by the Supreme Court can be said to have been made only when it is contained in a speaking order, either expressly or by necessary implication and not by dismissal in limine.

9. The precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with order is binding on the parties to the said order, but in our view, it cannot act as a precedent for subsequent cases such as the present one with which we are dealing.

10. If an order of this Court is brief and meant only for the purpose of closure of the controversy involved in a particular case and with a view to conclude the case, undoubtedly, such an order is binding on the parties to the said order, but in our view, it cannot act as a precedent for subsequent cases such as the present one with which we are dealing.

#Ratio_decidendi #stare_decisis
#Article_141 #Obiter_dicta
#concept

#Discernible_Topics
@CurrentLegalGK

🚪👋Recusal Of Judges In India

"Independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them”

😯Why Recusal Of Judges❓
• Conflict of Interest.
• Nemo Judex In Causa Sua.
• Natural Justice
• Due Process of Law.

🙄What Does Recusal Mean❓❓
A judge can withdraw from hearing a case to prevent creating a perception that s/he carried a bias while deciding the case.

😇 Relevant Example💯
When an appeal is filed in the Supreme Court against a judgement of a High Court that may have been delivered by the SC judge when she was in the HC or Re-examination of SC judgement by same judge.

📚 Legal Provisions and Case Laws

No Specific Provision but there are S.C. rulings.

1. Ranjit Thakur v UOI (1987)
Test of Reasonable Apprehension in the mind of the party.
“The proper approach for the Judge is not to look at his own mind and ask himself, “Am I biased❓” but to look at the mind of the party before him,”

2. On 1997 S.C. adopted a Charter called the Restatement of Values of Judicial Life to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary, indispensable in the impartial administration of justice.

🚦Lacunas in the Recusal of Judges
⚡No codified rules which makes delay in proceedings.

⚡Judge is the Sole person to decide for himself and no other person but there should be 3rd party it can be the CJI/CJ/DJ or that court who refer the case to benches.

⚡It is Assumed that Judges are Unbiased due to the Oath given during Appointment.

⚡Lack of transparency; No reasoning is given when recuses.

Conclusion - This concept removes the doubts and brings confidence in Judiciary to the parties who are fighting for their life & liberty

🙂 Pinochet Principle- If a judge is interested in a cause being promoted by one of the parties, then he is automatically disqualified from hearing viz If a High Court was consulted before the notification of the amendment, that disqualifies the entire High Court.

#Impartial_Judiciary #Independent_Judiciary
#Recusal_of_cases
#Article_14 #Article_21

#Discernible_Topics
@CurrentLegalGK