Lawwatch

Maneka Gandhi judgment simplified

Landmark judgment in Maneka Gandhi case

The judgment in Maneka Gandhi case ( Maneka Gandhi v Union of India: AIR 1978 SC 597) was a landmark judgment in the judicial history of India. It was a conscious attempt on the part of the Supreme Court (SC) in restoring the people’s faith in the judiciary which reached at its low in the seventies, particularly after the ADM Jabalpur judgment which is considered to be the most infamous judgment in India.

The context, theme & impact of Keshavananda Bharati Case

The Supreme Court (SC) judgment in the Keshavanand Bharati case (Keshavananda Bharati v State of Kerala: AIR 1973 SC 1461), delivered exactly 47 years ago on 24th April 1973, stands out in Indian legal history as a beacon light.

The judgment was delivered by the largest SC Bench so far. The hearing was the lengthiest one spanning 68 days. The judgment running into 703 pages was the longest one then.

The judgment helped India in upholding the lofty principles of Indian Constitution to a great extent, despite the country has been reeling under diverse political pressures over the years. The judgment crystalised the doctrine of basic structure of the constitution and established that any law, amendment of law or even constitutional amendment should not go inconsistent with what is called the basic structure of the Constitution.

Law relating to filing of Vakalatnama in Civil Cases

What a Vakalatnama is

Vakalatnama is a legal document being executed by every litigant as prescribed by law for the purpose of engaging an advocate to conduct some specific judicial proceedings and doing all what is lawfully necessary in that regard in a court. It is a species of Power of Attorney. The term originated from Urdu and it means power of attorney.

The Vakalatnama enables the advocate appearing for the litigant to do several acts as an agent of the litigant who remains as the principal. It creates a special relationship between the lawyer and the litigant. It regulates the extent of delegation of authority to the advocate in regard to the conduct of the judicial proceedings and the terms and conditions governing such delegation. It should, therefore, be properly filled, attested and accepted with due care and caution.

Legal remedies available to those who fail to perform any contract due to Covid Lockdown

Covid : an unforeseen pandemic

The emergence of Covid-19 as a pandemic around the world in an unprecedented manner as nobody could foresee has brought in many unforeseen restrictions in movement, stoppage of production, scarcity of raw materials, shortage of labour and disruption in supply chain. Such restrictions have put timely performance of contractual obligations by many in disarray or made timely performance of many contracts delayed or impossible.

Such failures in performance by the contracting parties under a valid contract are protected by law under Section 32 and 56 of the Indian contract Act, 1872, if such failures occurred due to reason beyond the control of the parties. The Section 32 of the contract act invokes the concept of force majeure and the Section 56 of the contract act invokes the concept of frustrated contracts.

In order to get protection under the Section 32 of the contract act a clause technically called ‘Force Majeure’ clause should be specifically provided in the contract.

Zero FIR and its role in Crime Investigation

What is Zero FIR?

Zero FIR is not at all different from a commonly known FIR (First Information Report) which must be registered in any criminal offence in the police station authorized to investigate it. Zero FIR differs from an ordinary FIR in the sense that it is lodged in a police station which lies outside the location (jurisdiction) of crime. The Zero FIR must be later transferred to the police station having jurisdiction under the criminal Procedure Code, 1973 (CrPC).

That means Zero FIR is similar to an ordinary FIR but its serial number would be 0, until it reaches the respective police station having jurisdiction to take further proceedings. An example of a zero FIR is in the Asaram Bapu case in which a minor girl was raped in Jodhpur, Rajasthan, but the victim filed Zero FIR against him in Delhi, a place distant from the place of occurrence.

Ethics of defending a Client known to be Guilty

Criminal defence advocates, defending the accused persons who have been considered by the people to be guilty in heinous crimes, are at the receiving end many a time. The public at large, a section of lawyers and even some Bar Councils have a view that the defendant suspecting to be guilty of grave offences does not deserve to have the service of a defence lawyer at all.

Both in Kasab’s case and in Nirbhaya case the advocate’s body - the Bar Association - took a resolution not to defend the accused ones. In fact the proponents of this view, guided by some misconceptions about judicial niceties, fail to recognise that the court is dealing with nothing but the legal guilt rather than the factual guilt in a trial.

Question of law can be brought before SC at any stage

Seminal question before the SC

In a recent judgment in K Lubna v Beevi, the Supreme Court (SC) upheld that a pure question of law can be examined at any stage even before the SC if the foundation of the fact has already been laid. The examination of the legal consequences of such a well laid down fact would be a pure question of law.

The SC has already recognized in Chittoori Subbanna v Kudappa Subbanna ( AIR 1965 SC 1325) that by moving a separate application for permission, it is possible to include additional grounds in the grounds of appeal.

In upholding this principle, the SC relied on a 1892 judgment in Connecticut Fire Insurance Co v Kavanagh. In the judgment, Lord Watson stated: when a question of law is raised for the first time in a court of last resort upon facts proved beyond controversy, the court is not only competent but also it is expedient in the interest of justice to entertain the plea.

Sale of Property in Execution of a Decree

One of the modes of execution of a decree of a civil court is either by attachment and sale, or by sale without attachment, of any property.

The provisions relating to sale of property in an execution proceeding are Sections 65 to 73, and the Rules 64 to 94 of the Order 21, of the Civil Procedure Code, 1908 (CPC). The Chapter VIII of the Civil Rules of Practice Kerala state the procedural matters relating to execution. The provisions cover both movable and immovable properties.

How to deal with Noise Pollution?

Citizens have the right to a pollution-free environment

The citizen has the right to enjoy life in its entirety along with every permissible pleasure associated with it. The Article 21 of the Constitution offers every citizen a right to a decent environment, to live peacefully, to sleep well at night and to have leisure along with many other concomitant rights. Therefore anyone who wishes to live in peace, comfort and quietness within his house has every right to be protected from excessive sound or noise pollution.

On the other hand, no one got endowed with any right to create noise even in his own premises which would travel beyond his precincts and cause nuisance to others living within the precincts beyond his boundary. Any noise which interferes with the normal life of anyone is nuisance.

Dying declaration under the Evidence Act

What is a dying declaration?

Dying declaration is a written or verbal statement made by a person, when he is facing imminent death, as to the cause of his death or any circumstances which resulted in his death. The declaration must be as to the cause of the declarant’s death or as to any of the circumstances of the transaction which resulted in his death.

The declaration is admissible when the cause of the death of the person who declares is directly in issue and both the declaration and the death have some proximate relation. Before a dying declaration is admitted it must be proved that its maker is dead. If the maker survives after the possibility of imminent death, his statement is not a dying declaration.