THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar I
(11.08.10)
(10:00 A.M. to 12:15 P.M.)
The Prevention of Torture Bill, 2010
Moderator : Slahuddin Ahmed.
Presenter : Saadiya.
Discussants : Anubha Dhulia and Jupi Gogoi.
Rapporteur : Utkarsh Yadav.
I. Background
Pursuant to the adoption of the Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by the General Assembly in 1975, the United Nations General Assembly adopted the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment on December 10, 1984. India signed the convention on October 14, 1997 but has not ratified the same till date. Ratification of the convention requires enabling legislation to reflect the definition and punishment for “torture” as provided for in the convention. Although the Indian Penal Code contains certain provisions relating to the subject matter, the term “torture” is not defined in the manner it is provided in article 1 of the convention. In the given circumstance, the government of India felt it necessary that for the purpose of ratification of the convention, legislation should be enacted and therefore an attempt was first made in 2008 when the Prevention of Torture Bill 2008 was proposed which did not see the light of the day. A modified draft of the Bill, i.e. The Prevention of Torture Bill, 2010 was introduced in the Parliament and was passed by the Lok Sabha on May 6, 2010.
II. Overview of the Bill.
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to define the expression "torture" and provide for punishment to those involved in the incidents of torture and specifies the time limit for taking cognizance of the offence of torture. Clause 3 of the Bill defines “torture” as any intentional act for the purpose of extracting confession or information, which causes “grievous hurt” or “ danger to life, limb or health (whether mental or physical)” to any person by a public servant or a person abetted by a public servant. However proviso to the clause excludes those acts, which are inflicted in accordance with procedure established by law. Clause 4 of the Bill penalizes an act of torture which is inflicted on a person “for the purpose of extorting confession” or “any information which may lead to the detection of an offence or misconduct” and “on the grounds of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.”
Clause 5 of the Bill requires the complaint to be made within 6 months from the date on which the offence is said to have been committed. The Bill requires prior government sanction for trying those accused of torture.
III. Issues
1. Whether the definition of torture given in clause 3 of the Bill is broad enough to include all kinds of acts that can be labelled as torture. Can torture be justified in any circumstances as provided for in the proviso to clause 3?
2. Whether the provision given under clause 4 of the Bill defeats the purpose of making torture a punishable offence when the Bill does not penalize “torture” per se as a criminal offence?
3. Is the Bill a sincere effort on the part of the legislature to ratify the convention? Is there any justification for not bringing it in conformity with the convention in toto?
Suggested Readings:
1. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984.
2. The Prevention of Torture Bill, 2010.
3. D.K. Basu v. State of West Bengal AIR 1997 SC 610
4. Ravi Nair, “Prevention of Torture Bill: A Feeble Attempt”, 55 EPW 25 (2010)
5. Arun Ferreira, “A Critical Appraisal of the Prevent ion of Torture Bill, 2010” 55 EPW 10 (2010).
6. M.P Jain, Indian Constitutional Law, 1118-1120 (Wadhwa Nagpur, New Delhi, 5th edn, 2008)
7. Michael Goodhart, Human Rights: Politics & Practice 298 (Oxford University Press, New York 2009).
Friday, August 6, 2010
Thursday, March 25, 2010
Civil Liability for Nuclear Damage Bill
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar XI
(31.03.10)
10:00 am-12:15 pm
The Civil Liability For Nuclear Damage Bill ,2010
Moderator : Jupi Gogoi Presenter : Amandeep Kaur Sandhu
Discussants : Devendra Singh and M. Ramesh
Rapporteur : Shantanu Singh
I Background
The Indo-U.S. Civilian Nuclear Agreement was enacted successfully in October 2008. The agreement was to facilitate civilian nuclear partnership between United States and India along with many other mutual benefits on the condition that India will differentiate between its civilian and military nuclear facilities and put civilian facilities under the International Atomic Energy Agency (IAEA) inspection. In order to facilitate nuclear commerce and attract U.S. private companies involved in nuclear commerce, the UPA government prepared The Civil Liability for Nuclear Damage Bill, 2010. The cabinet ministerial meeting approved the Bill on November 19, 2009. The passage of the bill is crucial to operationalise the India-US civil nuclear agreement as the Bill will enable the country to accede to the Convention on Supplementary Compensation for Nuclear Damage 1997, without which the US private companies will not be able to sell nuclear equipments to India. In absence of such law, US firms will not get insurance cover for their projects in India.
II Overview of the Bill
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to give compensation to persons if they suffer nuclear damage as a result of a nuclear incident. Clause 4, inter alia, provides that the operator shall be liable for nuclear damage caused by a nuclear incident in that nuclear installation. However, the total liability of such operator is limited. Further the Bill provides that where a nuclear damage is caused by nuclear incident directly due to a grave natural disaster of an exceptional character or by acts of armed conflicts etc, the operator shall not be liable. Clause 6 specifies that the maximum amount of liability in respect of nuclear incident shall be the rupee equivalent of 300 million Special Drawing Rights and the liability of an operator for each nuclear incident shall be Rs. 500 crore. Clause 7 specifies that central government shall be liable where the liability exceeds the amount of liability of an operator. Under the Bill, the foreign supplier, however culpable it may be for a nuclear accident will enjoy legal immunity because the Bill channels all legal liability on the central government. The Bill further provides that the operator, through a contract, can make the foreign supplier responsible to pay compensation for an accident. But such amount can only be up to the operator’s own liability ceiling. According to Clause 35 no civil court shall have jurisdiction to entertain any suit or proceeding in respect of which the Claim Commissioner or the Nuclear Damage Claim Commission is empowered to adjudicate under the Bill. Another contentious clause is period of limitation to claim damages. It provides that the right to claim compensation for any nuclear damage shall extinguish if such claim is not made within a period of ten years from the date of notification of nuclear incident.
III Issues
1. How far the Parliament is justified in limiting the maximum liability at the rupee equivalent of 300 million Special Drawing Rights, which is not in accordance with internationally adhered benchmarks?
2. Is the Parliament justified in not making the supplier/operator directly and fully liable and shifting the liability to the Indian taxpayer?
3. Whether the limitation on the right to claim damages merely to 10 years after the happening of a nuclear incident is justified, since its effects on health, environment, etc take a long time to manifest?
Suggested Readings:
1. Brahma Chellaney, ”A Radioactive Bill Fraught With Big Risks”, The Hindu 13 March 2010.
2. Gopal Krishna, “Nuclear Liability Bill, US Senate, and Indian Parliament”, available at http://canarytrap.in/2010/03/17/nuclear-liability-bill-us-senate-and-indian-parliament/
3. Convention on Supplementary Compensation for Nuclear Damage,1997.
4. Brahma Chellaney, “Ignoring Lessons of Bhopal & Chernobyl”, The Hindu 16 February 2010.
5. Chernobyl- A continuing Catastrophe, UN Office for the Coordination of Humanitarian Affairs available at http://www.reliefweb.int/ocha_ol/programs/response/cherno/qms.pdf
LL.M. (Two Year Course)
Wednesday Seminar XI
(31.03.10)
10:00 am-12:15 pm
The Civil Liability For Nuclear Damage Bill ,2010
Moderator : Jupi Gogoi Presenter : Amandeep Kaur Sandhu
Discussants : Devendra Singh and M. Ramesh
Rapporteur : Shantanu Singh
I Background
The Indo-U.S. Civilian Nuclear Agreement was enacted successfully in October 2008. The agreement was to facilitate civilian nuclear partnership between United States and India along with many other mutual benefits on the condition that India will differentiate between its civilian and military nuclear facilities and put civilian facilities under the International Atomic Energy Agency (IAEA) inspection. In order to facilitate nuclear commerce and attract U.S. private companies involved in nuclear commerce, the UPA government prepared The Civil Liability for Nuclear Damage Bill, 2010. The cabinet ministerial meeting approved the Bill on November 19, 2009. The passage of the bill is crucial to operationalise the India-US civil nuclear agreement as the Bill will enable the country to accede to the Convention on Supplementary Compensation for Nuclear Damage 1997, without which the US private companies will not be able to sell nuclear equipments to India. In absence of such law, US firms will not get insurance cover for their projects in India.
II Overview of the Bill
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to give compensation to persons if they suffer nuclear damage as a result of a nuclear incident. Clause 4, inter alia, provides that the operator shall be liable for nuclear damage caused by a nuclear incident in that nuclear installation. However, the total liability of such operator is limited. Further the Bill provides that where a nuclear damage is caused by nuclear incident directly due to a grave natural disaster of an exceptional character or by acts of armed conflicts etc, the operator shall not be liable. Clause 6 specifies that the maximum amount of liability in respect of nuclear incident shall be the rupee equivalent of 300 million Special Drawing Rights and the liability of an operator for each nuclear incident shall be Rs. 500 crore. Clause 7 specifies that central government shall be liable where the liability exceeds the amount of liability of an operator. Under the Bill, the foreign supplier, however culpable it may be for a nuclear accident will enjoy legal immunity because the Bill channels all legal liability on the central government. The Bill further provides that the operator, through a contract, can make the foreign supplier responsible to pay compensation for an accident. But such amount can only be up to the operator’s own liability ceiling. According to Clause 35 no civil court shall have jurisdiction to entertain any suit or proceeding in respect of which the Claim Commissioner or the Nuclear Damage Claim Commission is empowered to adjudicate under the Bill. Another contentious clause is period of limitation to claim damages. It provides that the right to claim compensation for any nuclear damage shall extinguish if such claim is not made within a period of ten years from the date of notification of nuclear incident.
III Issues
1. How far the Parliament is justified in limiting the maximum liability at the rupee equivalent of 300 million Special Drawing Rights, which is not in accordance with internationally adhered benchmarks?
2. Is the Parliament justified in not making the supplier/operator directly and fully liable and shifting the liability to the Indian taxpayer?
3. Whether the limitation on the right to claim damages merely to 10 years after the happening of a nuclear incident is justified, since its effects on health, environment, etc take a long time to manifest?
Suggested Readings:
1. Brahma Chellaney, ”A Radioactive Bill Fraught With Big Risks”, The Hindu 13 March 2010.
2. Gopal Krishna, “Nuclear Liability Bill, US Senate, and Indian Parliament”, available at http://canarytrap.in/2010/03/17/nuclear-liability-bill-us-senate-and-indian-parliament/
3. Convention on Supplementary Compensation for Nuclear Damage,1997.
4. Brahma Chellaney, “Ignoring Lessons of Bhopal & Chernobyl”, The Hindu 16 February 2010.
5. Chernobyl- A continuing Catastrophe, UN Office for the Coordination of Humanitarian Affairs available at http://www.reliefweb.int/ocha_ol/programs/response/cherno/qms.pdf
Monday, March 15, 2010
Seminar X - Foreign Law Firms, RBI and India
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar X
(17.03.10)
(10.00am - 12.15 pm)
Lawyers Collective v. Bar Council of India & Others
Moderator : Farhat Jahan Rehmani
Presenter : Suparna Gaind
Discussants : Saurabh Singh and V. Elanchezhiyan
Rapporteur : Rahul Sharma
I. Facts
The genesis of the case can be traced back to when three foreign law firms, practicing in U.K/ U.S.A had applied to the Reserve Bank of India, seeking permission to open their liaison offices in India. In 1995, the RBI granted permission to open their respective liaison offices, with certain conditions. In the permission letter, it was specifically stated that the permission granted to the law firms is limited to the purpose of section 29 of the Foreign Exchange Regulation Act, 1973. Being aggrieved by the step taken by the RBI, a writ petition was filed in Bombay High Court by the petitioner. The main contention of the petitioner was that the foreign law firms could not be permitted to carry on practice either in litigious or non-litigious matters without being enrolled as advocates under the Advocates Act, 1961. However, the respondents argued that the Advocates Act, 1961 was applicable only to persons practicing in litigious matters and that the Act was enacted by Parliament in exercise of the powers conferred on it under entries 77 and 78 in list I of the Seventh Schedule of the Constitution, which refers to the organization of the Supreme Court and the high courts as well as the persons entitled to practice before these courts. Thus, the Act would apply only to persons practicing before the Supreme Court and the high courts and not to persons practicing in non-litigious matters.
II Judgment
After considering various judgments of the Supreme Court, the Bombay High Court refused to accept the contention that the Act was restrictive in nature. The court held that (i) Act applies not only to the persons practicing before the courts but also to persons who are practicing in non-litigious matters outside the courts and (ii) it applies to courts other than the high courts and the Supreme Court. Further, while observing the fundamental distinction between the professional activity and the activity of a commercial character, the court also held that the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under section 29 of the Foreign Exchange Regulation Act, 1973.
III Issues
1. Whether the Reserve Bank of India was justified in granting permission to the foreign law firms, under section 29 of Foreign Exchange Regulation Act, 1973 to open their respective liaison offices in India?
2. Whether the Advocates Act, 1961 intends to include both litigious and non-litigious practitioners?
3. Do you think that liberalising legal profession and permitting foreign law firms/ lawyers in India would enhance the quality of legal services, thereby facilitating the adoption of international best practices? If yes, should they be allowed to practice in India?
Suggested Readings
1. The Advocates Act, 1961.
2. Foreign Exchange Regulation Act, 1973.
3. Subodh Markandeya & Haroon S. Kably, The Foreign Exchange Regulation Act, 1973,
213-224 (1977).
4. S. K. Gupta & Ajaya Jain, Foreign Exchange: Law and Practice, 1.151-1.168 (1981).
5. O. N. Mohindroo v. Bar Council, AIR 1968 SC 888.
6. Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45.
7. C. K. Sharma Baruah, “Entry of Foreign Legal Consultants and Foreign Law Firms into India”, 27 (1) Indian Bar Review (2000) 1.
LL.M. (Two Year Course)
Wednesday Seminar X
(17.03.10)
(10.00am - 12.15 pm)
Lawyers Collective v. Bar Council of India & Others
Moderator : Farhat Jahan Rehmani
Presenter : Suparna Gaind
Discussants : Saurabh Singh and V. Elanchezhiyan
Rapporteur : Rahul Sharma
I. Facts
The genesis of the case can be traced back to when three foreign law firms, practicing in U.K/ U.S.A had applied to the Reserve Bank of India, seeking permission to open their liaison offices in India. In 1995, the RBI granted permission to open their respective liaison offices, with certain conditions. In the permission letter, it was specifically stated that the permission granted to the law firms is limited to the purpose of section 29 of the Foreign Exchange Regulation Act, 1973. Being aggrieved by the step taken by the RBI, a writ petition was filed in Bombay High Court by the petitioner. The main contention of the petitioner was that the foreign law firms could not be permitted to carry on practice either in litigious or non-litigious matters without being enrolled as advocates under the Advocates Act, 1961. However, the respondents argued that the Advocates Act, 1961 was applicable only to persons practicing in litigious matters and that the Act was enacted by Parliament in exercise of the powers conferred on it under entries 77 and 78 in list I of the Seventh Schedule of the Constitution, which refers to the organization of the Supreme Court and the high courts as well as the persons entitled to practice before these courts. Thus, the Act would apply only to persons practicing before the Supreme Court and the high courts and not to persons practicing in non-litigious matters.
II Judgment
After considering various judgments of the Supreme Court, the Bombay High Court refused to accept the contention that the Act was restrictive in nature. The court held that (i) Act applies not only to the persons practicing before the courts but also to persons who are practicing in non-litigious matters outside the courts and (ii) it applies to courts other than the high courts and the Supreme Court. Further, while observing the fundamental distinction between the professional activity and the activity of a commercial character, the court also held that the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under section 29 of the Foreign Exchange Regulation Act, 1973.
III Issues
1. Whether the Reserve Bank of India was justified in granting permission to the foreign law firms, under section 29 of Foreign Exchange Regulation Act, 1973 to open their respective liaison offices in India?
2. Whether the Advocates Act, 1961 intends to include both litigious and non-litigious practitioners?
3. Do you think that liberalising legal profession and permitting foreign law firms/ lawyers in India would enhance the quality of legal services, thereby facilitating the adoption of international best practices? If yes, should they be allowed to practice in India?
Suggested Readings
1. The Advocates Act, 1961.
2. Foreign Exchange Regulation Act, 1973.
3. Subodh Markandeya & Haroon S. Kably, The Foreign Exchange Regulation Act, 1973,
213-224 (1977).
4. S. K. Gupta & Ajaya Jain, Foreign Exchange: Law and Practice, 1.151-1.168 (1981).
5. O. N. Mohindroo v. Bar Council, AIR 1968 SC 888.
6. Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45.
7. C. K. Sharma Baruah, “Entry of Foreign Legal Consultants and Foreign Law Firms into India”, 27 (1) Indian Bar Review (2000) 1.
Tuesday, March 9, 2010
Seminar VI Update - Supreme Court and RTI
The Supreme Court has decided to appeal against the decision of Delhi High Court in Secretary General, Supreme Court of India v. Subash Chandra Agarwal. The high court decision was discussed in the House during Seminar VI. The issue pertaining to the current development was
"3. If the Supreme Court entertains the case, which involves its own Registry, do you think it is justified according to the principles of natural justice?"
The court's rationale for doing so is that the offices of the registrar and chief justice are different. How correct is this understanding? There is no constitutional provision which separates the office of the Chief Justice of India from its administrative wing. Further, the maxim nemo judex in parte sua also speaks of "reasonable apprehension of bias". Considering these aspects, what could be the way out?
It is also possible that a legislation incorporating the 1997 resolution will be enacted.
"3. If the Supreme Court entertains the case, which involves its own Registry, do you think it is justified according to the principles of natural justice?"
The court's rationale for doing so is that the offices of the registrar and chief justice are different. How correct is this understanding? There is no constitutional provision which separates the office of the Chief Justice of India from its administrative wing. Further, the maxim nemo judex in parte sua also speaks of "reasonable apprehension of bias". Considering these aspects, what could be the way out?
It is also possible that a legislation incorporating the 1997 resolution will be enacted.
Thursday, March 4, 2010
Mulla & Another v. State of U.P. - Sentencing Policy in India
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar IX
(10.03.10)
10:00 am-12:15 pm
Mulla & Another v. State of U.P.
Moderator : Samreen Hussain
Presenter : Utkarsh Yadav
Discussants : Sreeparvathy G. and Vikesh Tripathi
Rapporteur : Neeraj Tiwari
I Facts
ON 21.12.1995, when Shiv Ratan, Nanhakey, Ram Kishore and Sushil were irrigating their fields, eight miscreants armed with guns reached the spot and made a demand of Rs. 10000/- each, threatening that otherwise they would be killed. Soon thereafter, Harnam, Ganga Dai, Chhotakey and Hari Kumar Tripathi who were returning home after irrigating their fields were also stopped by the miscreants making the same demands. When all of them expressed their inability to pay the money, the miscreants took away five of them including a woman leaving the others to arrange for the money, threatening that the abducted persons would be killed otherwise. A complaint was lodged and the dead bodies were recovered the next day. The appellants were arrested and charge sheet was filed. The trial court convicted the appellants under section 365 IPC and sentenced them to undergo rigorous imprisonment for 7 years and a fine of Rs.10000/- each. They were also convicted under section 148 IPC and sentenced to rigorous imprisonment for 3 years. They were further convicted under section 302 read with section 149 IPC and sentenced to death. The appeal against the judgment of the trial court was dismissed by the high court confirming the death sentence. Aggrieved by the order of the high court, both the accused preferred an appeal before the Supreme Court.
II Judgment
The Supreme Court on appeal confirmed the conviction. However, Sathasivam, J. writing the judgment for the bench , observed that, “We at no stage suggest that economic depravity justify moral depravity, but we certainly recognize that in the real world, such factors may lead a person to crime… Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socioeconomic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. .” Thus the court taking in to account all the aggravating and mitigating circumstances commuted the death sentence in to life imprisonment.
III Issues
1. Is there a need for codification of sentencing policy (based upon the penal policy of the state) which keeps the judicial discretion to bare minimum, in order to avoid arbitrariness and inconsistency?
2. Keeping in mind the conflicting opinions of the Supreme Court, can economic backwardness of the accused be considered as one of the mitigating factors in sentencing?
3. In the context of this case do you think that the Supreme Court is gradually doing away with death penalty by limiting the scope of ‘rarest of rare’ doctrine?
Suggested Readings:
1. G.Kameswari & V. Nageswara Rao, “The Sentencing Process-Problems and Perspectives”, 41 JILI (1999) 452.
2. V.R Dinkar, “Structuring Judicial Discretion in Sentencing by Guideline Judgement”, 26 Academy Law Review (2002) 135.
3. Dr. K.N Chandrasekharan Pillai and Dr. N.S Soman, “Rarest of Rare Case-A Myth”, 25 Academy Law Review(2001) 157.
4. State of Rajasthan v. Madan Singh, AIR 2008 SC 1292.
5. Santosh Bariyar v. State of Maharashtra, ( 2009) 6 SCC 498.
LL.M. (Two Year Course)
Wednesday Seminar IX
(10.03.10)
10:00 am-12:15 pm
Mulla & Another v. State of U.P.
Moderator : Samreen Hussain
Presenter : Utkarsh Yadav
Discussants : Sreeparvathy G. and Vikesh Tripathi
Rapporteur : Neeraj Tiwari
I Facts
ON 21.12.1995, when Shiv Ratan, Nanhakey, Ram Kishore and Sushil were irrigating their fields, eight miscreants armed with guns reached the spot and made a demand of Rs. 10000/- each, threatening that otherwise they would be killed. Soon thereafter, Harnam, Ganga Dai, Chhotakey and Hari Kumar Tripathi who were returning home after irrigating their fields were also stopped by the miscreants making the same demands. When all of them expressed their inability to pay the money, the miscreants took away five of them including a woman leaving the others to arrange for the money, threatening that the abducted persons would be killed otherwise. A complaint was lodged and the dead bodies were recovered the next day. The appellants were arrested and charge sheet was filed. The trial court convicted the appellants under section 365 IPC and sentenced them to undergo rigorous imprisonment for 7 years and a fine of Rs.10000/- each. They were also convicted under section 148 IPC and sentenced to rigorous imprisonment for 3 years. They were further convicted under section 302 read with section 149 IPC and sentenced to death. The appeal against the judgment of the trial court was dismissed by the high court confirming the death sentence. Aggrieved by the order of the high court, both the accused preferred an appeal before the Supreme Court.
II Judgment
The Supreme Court on appeal confirmed the conviction. However, Sathasivam, J. writing the judgment for the bench , observed that, “We at no stage suggest that economic depravity justify moral depravity, but we certainly recognize that in the real world, such factors may lead a person to crime… Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socioeconomic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. .” Thus the court taking in to account all the aggravating and mitigating circumstances commuted the death sentence in to life imprisonment.
III Issues
1. Is there a need for codification of sentencing policy (based upon the penal policy of the state) which keeps the judicial discretion to bare minimum, in order to avoid arbitrariness and inconsistency?
2. Keeping in mind the conflicting opinions of the Supreme Court, can economic backwardness of the accused be considered as one of the mitigating factors in sentencing?
3. In the context of this case do you think that the Supreme Court is gradually doing away with death penalty by limiting the scope of ‘rarest of rare’ doctrine?
Suggested Readings:
1. G.Kameswari & V. Nageswara Rao, “The Sentencing Process-Problems and Perspectives”, 41 JILI (1999) 452.
2. V.R Dinkar, “Structuring Judicial Discretion in Sentencing by Guideline Judgement”, 26 Academy Law Review (2002) 135.
3. Dr. K.N Chandrasekharan Pillai and Dr. N.S Soman, “Rarest of Rare Case-A Myth”, 25 Academy Law Review(2001) 157.
4. State of Rajasthan v. Madan Singh, AIR 2008 SC 1292.
5. Santosh Bariyar v. State of Maharashtra, ( 2009) 6 SCC 498.
Thursday, February 25, 2010
Seminar VIII - University of Kerala v. Council of Principals of Colleges, Kerala and Others
Please find below the abstract for the upcoming seminar. Kindly post your clarifications, views and comments on the issues identified herein. Comments may include insights, suggestions for improvement etc. We will try and align the discussions with the presenter.
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar VIII
03.03.10
(10:00 A.M. to 12:15 P.M.)
University of Kerala v. Council of Principals of Colleges, Kerala and Others
Moderator : Vikram Singh.
Presenter : Garima Budhiraja.
Discussants : Pragya Singh and Subhagam Kumar.
Rapporteur : Pathak Rakesh Kaushik.
I. Facts
THE GENESIS of the case dates back to the writ petition filed in the Kerala High Court dated 24-6-2004 by the Council of Principals of Colleges in Kerala against the directions issued by way of letters/circulars by respective universities to conduct elections to the colleges’ unions. The high court quashed the letters/circulars and left the colleges free to follow the system of their choice. Against the aforesaid judgment, the University of Kerala filed the appeal by special leave. The court by an order dated 12-12-2005 directed Ministry of Human Resource and Development to appoint a committee and accordingly a committee was constituted. The committee headed by Mr. J. M. Lyngdoh submitted a report to the court on 23-5-2006. The court by a detailed order dated 22-9-2006 directed that the recommendations of the committee shall be followed in all colleges/universities elections as an interim measure, until further orders. When the matter came up again before the present division bench, a question arose as to the validity of the said interim order.
II. Judgment
The division bench comprising of Katju J and Ganguly J expressed divergent views about the validity of the interim order. Katju J opined that the interim order dated 22-9-2006 prima facie amounts to judicial legislation which is not legally permissible. Ganguly J, on the other hand, was of the view that the Indian Constitution does not expressly incorporate separation of powers, save and except as provided under certain articles. Insofar as judicial power is concerned, no limitation is imposed under the Constitution and articles 141, 142 and 32 enable the Supreme Court to declare the law which shall be binding on all the courts within the territory of India and the court can pass such orders as required to do complete justice in the case. Both judges, after expressing divergent views, referred the matter to the constitution bench.
III. Issues
1) Whether the court can validly direct constitution of committees and implementation of their reports as done by the Supreme Court in University of Kerala v. Council of Principals of Colleges, Kerala, (2006) 8 SCC 304?
2) Whether under our constitution the judiciary can legislate and if so what is the permissible limits of judicial legislation? Will judicial legislation not violate the principle of separation of powers broadly envisaged by our constitution?
3) Whether article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee Report without authority of law?
Suggested readings:
1. Lyngdoh Committee Report available at http://www.education.nic.in/higheredu/Lyngdohcommitteereport.pdf
2. M. P. Jain, Indian Constitutional Law 1021-1026 (5th edn., Wadhwa, Nagpur, New Delhi, 2006).
3. M. P. Jain & S.N. Jain, Principles of Administrative Law 31-38 (6th edn., Wadhwa, Nagpur, 2007).
4. B.P. Jeevan Reddy, “Judicial Activism : A Perspective”, available at http://www.thehindu.com/2008/04/30/stories/2008043055791000.htm
5. Anil Divan, “Judicial Activism and Democracy”, available at http://www.hinduonnet.com/2007/04/02/stories/2007040200941000.htm
THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar VIII
03.03.10
(10:00 A.M. to 12:15 P.M.)
University of Kerala v. Council of Principals of Colleges, Kerala and Others
Moderator : Vikram Singh.
Presenter : Garima Budhiraja.
Discussants : Pragya Singh and Subhagam Kumar.
Rapporteur : Pathak Rakesh Kaushik.
I. Facts
THE GENESIS of the case dates back to the writ petition filed in the Kerala High Court dated 24-6-2004 by the Council of Principals of Colleges in Kerala against the directions issued by way of letters/circulars by respective universities to conduct elections to the colleges’ unions. The high court quashed the letters/circulars and left the colleges free to follow the system of their choice. Against the aforesaid judgment, the University of Kerala filed the appeal by special leave. The court by an order dated 12-12-2005 directed Ministry of Human Resource and Development to appoint a committee and accordingly a committee was constituted. The committee headed by Mr. J. M. Lyngdoh submitted a report to the court on 23-5-2006. The court by a detailed order dated 22-9-2006 directed that the recommendations of the committee shall be followed in all colleges/universities elections as an interim measure, until further orders. When the matter came up again before the present division bench, a question arose as to the validity of the said interim order.
II. Judgment
The division bench comprising of Katju J and Ganguly J expressed divergent views about the validity of the interim order. Katju J opined that the interim order dated 22-9-2006 prima facie amounts to judicial legislation which is not legally permissible. Ganguly J, on the other hand, was of the view that the Indian Constitution does not expressly incorporate separation of powers, save and except as provided under certain articles. Insofar as judicial power is concerned, no limitation is imposed under the Constitution and articles 141, 142 and 32 enable the Supreme Court to declare the law which shall be binding on all the courts within the territory of India and the court can pass such orders as required to do complete justice in the case. Both judges, after expressing divergent views, referred the matter to the constitution bench.
III. Issues
1) Whether the court can validly direct constitution of committees and implementation of their reports as done by the Supreme Court in University of Kerala v. Council of Principals of Colleges, Kerala, (2006) 8 SCC 304?
2) Whether under our constitution the judiciary can legislate and if so what is the permissible limits of judicial legislation? Will judicial legislation not violate the principle of separation of powers broadly envisaged by our constitution?
3) Whether article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee Report without authority of law?
Suggested readings:
1. Lyngdoh Committee Report available at http://www.education.nic.in/higheredu/Lyngdohcommitteereport.pdf
2. M. P. Jain, Indian Constitutional Law 1021-1026 (5th edn., Wadhwa, Nagpur, New Delhi, 2006).
3. M. P. Jain & S.N. Jain, Principles of Administrative Law 31-38 (6th edn., Wadhwa, Nagpur, 2007).
4. B.P. Jeevan Reddy, “Judicial Activism : A Perspective”, available at http://www.thehindu.com/2008/04/30/stories/2008043055791000.htm
5. Anil Divan, “Judicial Activism and Democracy”, available at http://www.hinduonnet.com/2007/04/02/stories/2007040200941000.htm
Tuesday, February 23, 2010
Welcome!
We are pleased to announce the launch of a blog dedicated to discussions related to Wednesday Seminar proceedings of Indian Law Institute. It would provide a platform for all members of the House to engage in pre-seminar discussions for enhancing the understanding of issues. It would also provide a forum for post-seminar deliberations and updates on the Seminar Report, which will be published after each seminar. We are looking forward to your co-operation, acceptance and involvement in making this blog an engaging exercise.
Welcome, once again!
Welcome, once again!
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