214K Legal Principles Through Case Study

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PREFACE
SOFT SKILL COURSE
214K LEGAL PRINCIPLES THROUGH CASE STUDY
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CONTENTS
214K Legal Principles Through Case Study
Topic Page
Case-laws related to Sem-4 Syllabus or asked in exam of 214K Legal

Module-1 3
Principles through Case Study.
Module-2 Case-laws related to ALL other LL.B. subjects. 81
This is CONTENTS. Menu ---> CONTENTS | Module-1 | Module-2
Objectives of course :
The main object of this course is to appraise the law students from various legal
principles established by the apex court and/or foreign courts to develop the learning,
understanding and writing skills. By reading the judgments taking into consideration the
legal principles laid down in the judgments, the law students are expected to develop
their skills of legal reasoning and applying the legal principles in practice and procedure.

Module-1 : Case-laws related to Sem-4 Syllabus or asked in exam of 214K Legal

Principles through Case Study.
Note : Each law college will be at liberty to teach the selected Legal Principles from the
following suggested List. However, while teaching these legal principles, the colleges
may take into consideration and discuss other relevant and relied cases of the Apex
Court or foreign courts.
This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2
Topic Page
1 Principle of Pro Bono Publico : Bandhua Mukti Morcha v. Union of 7

India (AIR) 1984 SC 802)
Discuss the principle of Pro Bono Publico and its significance through the
case of Bandhua Mukti Morcha v/s. Union of India. (Apr-2014)
Explain in detail and state legal principle laid down in it : Bandhua Mukti
Morcha v Union of India. (Apr-2013)
Explain along with legal principle involved therein : Bandhua Mukti Morcha
-vs- Union of India. (May-2016)
2 Rule of Prospective Overruling : Golak Nath v. State of Punjab (AIR 10

1967 SC 1642)
3 Basic Structure Theory : Kesavananda Bharti v. State of Kerala (AIR 13

1973 SC 1461)
Discuss the principle of Basic Structure Theory and its significance through
the case of Keshvanand Bharti V/s. State of Kerala. (Apr-2014)
Explain in detail and state legal principle laid down in it : Keshavananda
Bharati v State of Kerala. (Apr-2013)
Explain in detail the Basic Structure Theory laid down by the Supreme
Court in the case of Kesavananda Bharti V/s. State of Kerala (AIR 1973
SC 1461). (Mar2015)
Explain along with legal principle involved therein : Kesavananda Bharti
-vs- State of Kerala. (May-2016)
4 Maintenance to Muslim Divorced Women : Mohd. Ahmed Khan v. 16

Shah Bano Begum (AIR 1985 SC 945)
Explain in detail and state legal principle laid down in it : Mohd. Ahmed
Khan v Shah Bano Begum. (Apr-2013)
Explain in detail the cases in which the Supreme Court of India recognized

Topic Page
the right of maintenance to divorced Muslim wife. (May-2016)
5 Maintenance to Muslim Divorced Women : Danial Litifi's case (2002) 20

Discuss the case along with the legal principles : Daniel Latifi V/s.
Union of India (Mar2015)
6 Uniform Civil Code : Sarla Mudgal President v. Union of India (AIR 23

1995 SC 153)
Discuss the principle established in the case of Sarla Madugal v/s. Union
of India. (Apr-2014)
Discuss the principle of Uniform Civil Code in the light of decisions of the
Apex Court. (Mar2015)
7 Guidelines of Prevention of Sexual Harassment to women at working 28

place : Visakha v. State of Rajasthan (AIR 1997 SC 3011)
Discuss the case of Visakha V. State of Rajasthan and explain the
guidelines issued by the Supreme Court of India for prevention of sexual
harassment of women at working place. (Apr-2013)
Explain in detail various guidelines laid down by the Supreme Court to
prevent the sexual harassment to women at working places. (Mar2015)
Explain along with legal principle involved therein : Vishaka -vs- State of
Rajasthan. (May-2016)
8 Principle of Absolute Liability : Sri Ram Food Gas Leakage Case : 31

Oleum Gas Leak Case
Discuss the case along with the legal principles : Sri Ram Food Gas
Leakage Case (M. C. Mehta V/s. Union of India) (Mar2015)
Discuss in detail the principle of Absolute Liability propounded by the
Supreme Court in the Oleum Gas Leakage Case. (May-2016)
9 Medical Negligence and liabilities of Medical Practitioners : Jecob 35

Methew v. State of Punjab (AIR 2005 SC 3180)
Discuss the principles laid down by the Supreme Court explaining medical
negligence and liabilities of medical practitioners. (Apr-2013, Apr-2014)
"It is very difficult to hold any medical practitioner criminally liable while
treating a patient." Discuss this statement in the light of the principle laid
down by the Apex Court through relevant decisions. (May-2016)
Discuss the case along with the legal principles : Jacob Methews V/s.
State of Punjab (AIR 2005 SC 3180) (Mar2015)
10 Principle of Vicarious Liability : State of Rajasthan v. Vidhyawati 39

Topic Page
(AIR 1963 SC 1295)

Discuss in detail the principle of vicarious liability laid down by the
Supreme Court. (Mar2015)
Discuss the principle of vicarious liability with relevant Indian Cases. (Apr-
2013)
11 Public Trust Doctrine : M. C. Mehta v. Kamal Nath (1997) 1 SCC 388 42

Discuss in detail the "Polluter pays principle" with relevant cases. (May-
2016)
Explain in detail and state legal principle laid down in it : M.C. Mehta V,
Kamal Nath. (Apr-2013)
What is Public Trust Doctrine 2 Discuss the doctrine taking into
consideration the case of M. C. Mehta V/s. Kamal Nath. (Mar2015)
12 Polluter Pays Principle & Public Trust Doctrine : (i) M. C.Mehta v. 45

Union of India (1996) 4 SCC 750, (ii) Council for Enviro Legal Action
v. Union of India (1996)5 SCC 281
Discuss in detail : M. C.Mehta v. Union of India (1996)4 SCC 750 Council
for Enviro Legal Action v. Union of India (1996)5 SCC 281
13 Principle of Sustainable Development and Precautionary Principle : 48

Vellore Citizens Welfare Forum v. Union of India (1996)5 SCC 647
14 Doctrine of Ultra Vires : Ashbury's Railway Company V. Riche 51
15 Doctrine of Indoor Management : Royal British Bank v. Turquand 52
16 Principle of Lifting the Corporate veil : Soloman v. Soloman's case 54

Explain along with legal principle involved therein : Solomon -vs- Solomon
& Co Ltd. (May-2016)
17 The Right of the Majority Rule (Company Law) : Foss v. Harbottle 55

(1843) 67 ER 189
Discuss the principle estabilished in the case of Fars v/s. Harbottle. (Apr-
2014)
18 Principle of Contributory Negligence : Donogue v. Stevenson (1932) 57

AC. 562
Discuss in detail the Principle of Contributory Negligence in the light
decisions of the Supreme Court (May-2016)
19 Reps Ipsa Loquitor : Gulli V. Swan 58
20 Reps Ipsa Loquitor : Byrne v. Boadle (1863)2 HBE 722 61

Topic Page
21 Principle of Remoteness of Damages : Scott v. Shephard 96 Eng. Rep. 62

525 (K.B. 1773)
22 Principle of Remoteness of Damages : Re Polimis v. Wagon Mound 64

case 1961 AC 388 House of Lords
23 Death Sentence for Murder : Rarest of Rare Cases : Bachchan Singh 64

v. State of Punjab (AIR 1980 SC 898)
Death sentence should be given in rarest of rare cases specifying reasons
thereof. Discuss this principle taking into consideration various landmark
decisions. (Apr-2013)
Discuss the principle established in the case of Bachchan Singh vs. State
of Punjab. (Apr-2014)
Discuss the case along with the legal principles : Bachchan Singh Vls.
State of Punjab (AIR 1980 SC 898) (Mar2015)
24 Contract with minors : Void ab initio : Case : Mohri Bibee V. 67

Dharamdas Ghosh (1903) 30 IA 114
Discuss the legal principle accepted by the Indian Courts about the status
of contract with minors. (Apr-2013)
Discuss : Mohribibi v/s Dharamdas Ghosh. (Apr-2014)
Discuss the Legal Principle : Contract with Minor is void ab initio. (Mar
2015)
Contract with minors is void ab initio, discuss this statement with case
law. (May-2016)
25 Due process of Law under Article 21 of the Constitution : Maneka 69

Gandhi v. Union of India
Discuss : Maneka Gandhi v/s. Union of India. (Apr-2014)
26 No right to strike, but right to Collective Bargaining : Dharm Dutta & 75

Others vs. Union of India (2004) 1 SCC 712)
Discuss : Dharm Dutt and others V/s. Union of India. (Apr-2014)
27 Principles laid down for Compulsory Retirement : State of Gujarat v. 75

Umedbhai M. Patel (AIR 2010 SC 1109)
28 Power of High Court to quash FIR, Criminal Complaints and pending 75

Criminal Proceedings u/s 482 of the CrPC : Rupan Deol Bajaj vs KPS
Gill (AIR 1996 SC 309)
Explain the guidelines issued by the Supreme Court of India regarding
powers of the High Courts of quash FIR, Criminal complaints or criminal

Topic Page
proceedings. (Apr-2013)
Discuss : Rupen Deol Bajaj v/s. K.P.S. Gill. (Apr-2014)
29 Power of High Court to quash FIR, Criminal Complaints and pending 77

Criminal Proceedings u/s 482 of the CrPC : State of Haryana v.
Bhajan Lal (AIR 1992 SC 604)
Explain the guidelines issued by the Supreme Court of India regarding
powers of the High Courts of quash FIR, Criminal complaints or criminal
proceedings. (Apr-2013)
ANSWERS :
1) Principle of Pro Bono Publico : Bandhua Mukti Morcha v. Union of India (AIR)
1984 SC 802)
Discuss the principle of Pro Bono Publico and its significance through the case of
Bandhua Mukti Morcha v/s. Union of India. (Apr-2014)
Explain in detail and state legal principle laid down in it : Bandhua Mukti Morcha v
Union of India. (Apr-2013)
Explain along with legal principle involved therein : Bandhua Mukti Morcha -vs-
Union of India. (May-2016)
ANSWER :
Refer :
http://shortnotesonlaw.blogspot.in/2010/09/bandhua-mukti-morcha-vs-union-of-
india.html
https://lawschoolnotes.wordpress.com/2016/11/28/bandhua-mukti-morcha-
versus-union-of-india-air-1984-sc-802/
https://www.escr-net.org/caselaw/2015/bandhua-mukti-morcha-v-union-india-ors-
1997-10-scc-549
Short note : Hon'ble Supreme Court of India observed, This right to live with human
dignity enshrined in Article 21 derives its life breath from the Directive Principles of
State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42
and at the least, therefore, it must include protection of the health and strength of
workers men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane conditions

of work and maternity relief. These are the minimum requirements which must exist
in order to enable a person to live with human dignity and no State - neither the
Central Government nor any State Government - has the right to take any action
which will deprive a person of the enjoyment of these basic essential.
Statement of Facts :
The Petitioner, Bandhua Mukti Morcha, is an organization dedicated to the cause of
release of bonded labourers.
The Petitioner conducted a survey of some of the stone quarries in Faridabad
district near the city of Delhi.
On the basis of that survey, the petitioner addressed a letter to Honble Justice
Bhagwati on 25th February 1982 alleging that :
In the mines of Sh. S.L. Sharma in Faridabad District, Haryana, a large number
of labourers from different part of the country were working under inhuman and
intolerable conditions;
A large number of them were bonded labourers;
The provisions of the Constitution and various social welfare laws passed for the
benefit of said workmen were not being implemented.
The petitioner also mentioned the particulars of labourers who were working as
bonded labourers and prayed that a writ be issued for the proper implementation
of the various provisions of the social welfare legislations applicable to these
labourers working in the said stone quarries with a view to ending their misery
and helplessness.
The Honble Supreme Court treated the said letter as a writ petition and on 26th
February 1982 appointed a Commission consisting of Mr. Ashok Shrivastava and
Mr. Askok Panda to enquire into the allegations made by the Petitioner.
The Commission while confirming the allegations made by the Petitioner, pointed
out in its report dated 2nd March 1982 that:
The whole atmosphere in the alleged stone quarries was full of dust and it was
difficult for anyone to breathe;
Some of the workmen were not allowed to leave the stone quarries and were
providing forced labour;
There was no facility of providing clean drinking water;
The labourers did not have proper houses, instead they were living in jhuggies
made of piled stones and straw;
No compensation was paid to labourers who were injured in accidents occurring in
the course of their employment;
There were no facility for medical treatment or schooling.
At the direction of the Apex Court, a socio-legal investigation was also carried out
by Dr. Patwardhan.

Issues Involved :
Preliminary Issues :
Whether or not writ petition under Article 32 of the Constitution is maintainable
in the present matter?
Whether or not any fundamental right of the Petitioner or of the workmen on
whose behalf the writ petition has been filed is infringed?
Whether or not the Supreme Court is empowered to appoint any Commission or
investigating body under Article 32 of the Constitution?
On Merits :
Whether or not the workmen mentioned in the present case are bonded
labourers?
Whether or not the workmen in the present case are entitled to benefits under
various social welfare and labour law legislations?
Discussion :
This public interest litigation case (PIL) was filed via Article 32 of the Indian
Constitution directly before the Supreme Court of India and petitioned the Court to
direct the State of Uttar Pradesh (UP) to take steps to end child labor. Thereafter a
Court-appointed committee reported the enormity of child exploitation in UPs
carpet industry, finding that many children were kidnapped from Bihar, that the
industry largely employed minor children under 14 years, and that many
experienced physical abuse.
In its judgment, the Court discussed the importance of protecting childrens rights
to education, health, and development in ensuring Indias progress as a
democracy. While recognizing that child labor could not be abolished immediately
due to economic necessity, the Court found that pragmatic steps could be taken to
protect and promote the rights of children in the poverty-stricken and vulnerable
populations of Indian society. In support of its conclusion, the Court referred to
various fundamental rights and directive principles of the Indian Constitution
including, Article 21 (the right to life and personal liberty), Article 24 (prohibits
employment of children younger than 14 in factories, mines, or other hazardous
industries), Article 39 (e) (prohibits forcing citizens into vocations unsuited for their
age or strength), Article 39(f) (describes the States duties to protect children from
exploitation and to ensure children the opportunities and facilities to develop in a
healthy manner), and Article 45 (mandates the State to provide free compulsory
education for all children below 14 years). The Court also noted Indias obligations
under the Universal Declaration of Human Rights (UDHR) and the Convention on
the Rights of the Child to provide free primary education for all children in the
country, and to protect children against economic exploitation. The measures
ordered to abolish child labor set out in an earlier case, M.C. Mehta v. State of
Tamil Nadu & Ors. [[(1996) 6 SCC 756] were referenced by the Court and
incorporated in orders to the States of Uttar Pradesh and Bihar. The orders

included, directing the States to take steps to frame policies to progressively

eliminate the employment of children below the age of 14; provide compulsory
education to all children employed in factories, mining, and other industries;
ensure that the children receive nutrient-rich foods; and administer periodic health
check-ups.
Enforcement of the Decision and Outcomes :
In its judgment, the Court required that periodic reports of progress regarding the
implementation of the decision be submitted to the Registry of the Court. In
addition, as regards enforcement, a supplemental, if not consequential outcome of
this case, along with other relevant public interest litigation cases, was that that
National Commission for Protection of Child Rights (NCPCR) in 2006 framed the
NCPCR rules constituting the National Child Rights Commission. This Commission
was entrusted with assessing compliance with the Convention on the Rights of the
child and thus by extension monitoring the provision of free primary education for
all children in the country and the protection of children against economic
exploitation.
Significance of the Case :
This case along with other public interest litigation cases on the issue of child labor,
and a range of child labor eradication campaigns have been successful in raising
awareness about the issue of child labor and placing the issue prominently on the
governments agenda. Law and policy is moving in the direction of formal abolition
of child labor and different initiatives especially in the area of education are being
undertaken towards eradicating child labor. One effect has been that the use of
child labor in the carpet industry has been reduced. However, millions of children
still continue to be exploited in the labor market in India and there is an urgent
need for stronger and more effective protections for the rights of children.
2) Rule of Prospective Overruling : Golak Nath v. State of Punjab (AIR 1967 SC

1642)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/I.C._Golaknath_and_Ors._vs_State_of_Punjab_and_
Anrs.
Intro :
1967 Indian Supreme Court case, in which the Court ruled that Parliament could
not curtail any of the Fundamental Rights in the Constitution
Rule of Prospective Overruling :

It was in this case that the then Chief Justice Koka Subba Rao had first invoked
the doctrine of prospective overruling.
He had taken import from American law where jurists like George F. Canfield had
considered this doctrine to be an effective judicial tool.
In the words of Canfield, the said expression means:
"........ a court should recognize a duty to announce a new and better rule for
future transactions whenever the court has reached the conviction that an old
rule (as established by the precedents) is unsound even though feeling
compelled by stare decisis to apply the old and condemned rule to the instant
case and to transactions which had already taken place".
Facts of the case :
The family of Henry and William Golak Nath held over 500 acres of farmland in
Jalandhar, Punjab.
In the phase of the 1953 Punjab Security and Land Tenures Act, the state
government held that the brothers could keep only thirty acres each, a few acres
would go to tenants and the rest was declared 'surplus'.
This was challenged by the Golak Nath family in the courts and the case was
referred to the Supreme Court in 1965.
The family filed a petition under Article 32 challenging the 1953 Punjab Act on the
ground that it denied them their constitutional rights to acquire and hold property
and practice any profession (Articles 19(f) and (g)) and to equality before and
equal protection of the law (Article 14). They also sought to have the Seventeenth
Amendment which had placed the Punjab Act in the Ninth Schedule declared
ultra vires'.
Issues involved :
The issues involved were
whether Amendment is a law under the meaning of Article 13(2), and
whether Fundamental Rights can be amended or not
Judgment :
The judgment reversed the Supreme Court's earlier decision which had upheld
Parliament's power to amend all parts of the Constitution, including Part III related
to Fundamental Rights.
The judgement left Parliament with no power to curtail Fundamental Rights.
The Supreme Court, by thin majority of 6:5, held that
a constitutional amendment under Article 368 of the Constitution was an
ordinary 'law' within the meaning of Article 13(2) of the Constitution.
The majority did not believe there was any difference between ordinary legislative
power of the parliament and the inherent constituent power of parliament to
amend the Constitution.

The majority did not agree with the view that Article 368 of the Constitution
contained "power and procedure" to amend, but instead believed that the text of
Article 368 only explained the procedure to amend the constitution, the power
being derived from entry 97 of the List I of the VII Schedule to the Constitution.
Since according to Article 13(3), the parliament could not make any law that
abridges the Fundamental Rights contained in Part III of the Constitution, a
constitutional amendment, also being an ordinary law within the meaning of Article
13, could not be in violation of the fundamental rights chapter contained in the
Constitution of India.
Therefore, all constitutional amendments thus far which were in contravention or
which had made an exception to fundamental rights chapter of the Constitution
were said to be void.
Thus, the 1967 judgment in case of Golak Nath held that constitutional
amendments made until then were valid. ONLY for future, parliament can not
amend Part-III of the constitution.
Court said,
our decisions will not affect the validity of the constitution (Seventeenth
Amendment) Act, 1964, or other amendments made to the Constitution taking
away or abridging the fundamental rights.
We further declare that in future Parliament will have no power to amend Part III
of the Constitution so as to take away or abridge the fundamental rights.
Significance : Doctrine of prospective overruling :
It was in this case that the then Chief Justice Koka Subba Rao had first invoked the
doctrine of prospective overruling. He had taken import from American law where
jurists like George F. Canfield. In the words of Canfield, the said expression
means :
"........ a court should recognize a duty to announce a new and better rule for
future transactions whenever the court has reached the conviction that an old
rule (as established by the precedents) is unsound even though feeling
compelled by stare decisis to apply the old and condemned rule to the instant
case and to transactions which had already taken place".
However, the judgment said,
Our decisions will not affect the validity of the constitution (Seventeenth
Amendment) Act, 1964, or other amendments made to the Constitution taking
away or abridging the fundamental rights. We further declare that in future
Parliament will have no power to amend Part III of the Constitution so as to take
away or abridge the fundamental rights
Effect of SC judgment in this case :
After 1967 judgment in case of Golak Nath, in 1971 Parliament passed the 24 th
Amendment to abrogate the Supreme Court judgement.

It amended the Constitution to provide expressly that Parliament has the power to
amend any part of the Constitution including the provisions relating to Fundamental
Rights. This was done by amending articles 13 and 368 to exclude amendments
made under article 368, from article 13's prohibition of any law abridging or taking
away any of the Fundamental Rights.
The Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala
held that the Parliament under the Indian Constitution is not supreme, in that it
cannot change the basic structure of the constitution.
It also declared that in certain circumstances, the amendment of fundamental
rights would affect the basic structure and therefore, would be void. Thus, one
can see that this case is drawn on a larger canvas as compared to that of
Golaknath.
Kesavananda Bharati also overruled Golaknath and thus, all the previous
amendments which were held valid are now open to be reviewed.
They can also be sustained on the ground that they do not affect the basic
structure of the constitution or on the fact that they are reasonable restrictions
on the fundamental rights in public interest.
Both the cases, if seen closely, bear the same practical effects.
What Golaknath said was that the Parliament cannot amend so as to take away
the fundamental rights enshrined in Part III,
whereas in Keshavananda, it was held that it cannot amend so as to affect the
basic structure.
3) Basic Structure Theory : Kesavananda Bharti v. State of Kerala (AIR 1973 SC

1461)
Discuss the principle of Basic Structure Theory and its significance through the case of
Keshvanand Bharti V/s. State of Kerala. (Apr-2014)
Explain in detail and state legal principle laid down in it : Keshavananda Bharati v
State of Kerala. (Apr-2013)
Explain in detail the Basic Structure Theory laid down by the Supreme Court in the
case of Kesavananda Bharti V/s. State of Kerala (AIR 1973 SC 1461). (Mar2015)
Explain along with legal principle involved therein : Kesavananda Bharti -vs- State
of Kerala. (May-2016)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala
http://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-

democracy/article4647800.ece
Intro :
The Kesavananda Bharathi judgement or His Holiness Kesavananda Bharati
Sripadagalvaru and Ors. v. State of Kerala and Anr. is a landmark decision of the
Supreme Court of India that outlined the Basic Structure doctrine of the
Constitution.
Justice Hans Raj Khanna asserted through this doctrine that the constitution
possesses a basic structure of constitutional principles and values. The Court
cemented the prior precedent Golaknath v. State of Punjab AIR 1967 SC 1643,
which held that constitutional amendments pursuant to Article 368 were subject to
fundamental rights review.
The Basic Structure doctrine forms the basis of power of the Indian judiciary to
review, and strike down, amendments to the Constitution of India enacted by the
Indian parliament which conflict with or seek to alter this basic structure of the
Constitution.
The 13-judge Constitutional bench of the Supreme Court deliberated on the
limitations, if any, of the powers of the elected representatives of the people and
the nature of fundamental rights of an individual.
In a sharply divided verdict, by a margin of 7-6, the court held that while the
Parliament has "wide" powers, it did not have the power to destroy or emasculate
the basic elements or fundamental features of the constitution.
Although the court upheld the basic structure doctrine by only the narrowest of
margins, it has since gained widespread acceptance and legitimacy due to
subsequent cases and judgments. Primary among these was the imposition of the
state of emergency by Indira Gandhi in 1975, and the subsequent attempt to
suppress her prosecution through the 39th Amendment.
When the Kesavananda case was decided, the underlying apprehension of
the majority bench that elected representatives could not be trusted to act
responsibly was perceived to be unprecedented. However, the passage of
the 39th Amendment proved that in fact this apprehension was well-
founded.
In Indira Nehru Gandhi v. Raj Narain, a Constitution Bench of the Supreme Court
used the basic structure doctrine to strike down the 39th amendment and paved
the way for restoration of Indian democracy
Facts of the case :
In February 1970 Swami Sri HH Sri Kesavananda Bharati, Senior Plaintiff and head
of "Edneer Mutt" - a Hindu Mutt situated in Edneer, a village in Kasaragod District
of Kerala, challenged the Kerala government's attempts, under two state land
reform acts, to impose restrictions on the management of its property.
Although the state invoked its authority under Article 21, a noted Indian jurist,

Nanabhoy Palkhivala, convinced the Swami into filing his petition under Article 26,
concerning the right to manage religiously owned property without government
interference.
Even though the hearings consumed five months, the outcome would profoundly
affect India's democratic processes.
Judgment :
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and
considered the validity of the 24th, 25th, 26th and 29th amendments.
The case was heard by the largest ever Constitution Bench of 13 Judges. The
Bench gave eleven separate judgements.
Majority judgment :
Upholding the validity of clause (4) of article 13 and a corresponding provision in
article 368(3), inserted by the 24th Amendment, the Court settled in favour
of the view that Parliament has the power to amend the Fundamental
Rights also.
However, the Court affirmed another proposition also asserted in the Golaknath
case, by ruling that the expression "amendment" of this Constitution in
article 368 means any addition or change in any of the provisions of the
Constitution within the broad contours of the Preamble and the Constitution to
carry out the objectives in the Preamble and the Directive Principles.
Applied to Fundamental Rights, it would be that while Fundamental Rights
cannot be abrogated, reasonable abridgement of Fundamental Rights could be
effected in the public interest.
The true position is that every provision of the Constitution can be amended
provided the basic foundation and structure of the Constitution remains the
same.
The nine signatories to the statement were Chief Justice S M Sikri, and Justices
J.M. Shelat, K.S. Hegde, A.N. Grover, B. Jaganmohan Reddy, D.G. Palekar, H R
Khanna, A.K. Mukherjee and Yeshwant Vishnu Chandrachud.
Four judges did not sign the majority judgment : A.N. Ray, K.K. Mathew, M.H.
Beg and S.N. Dwivedi
S M Sikri J :
There is a limitation on the power of amendment by necessary implication which
was apparent from a reading of the preamble and therefore, according to the
learned Chief Justice, the expression "amendment of this Constitution", in Article
368 means any addition or change in any of the provisions of the Constitution
within the broad contours of the preamble, made in order to carry out the basic
objectives of the Constitution. Accordingly, every provision of the Constitution
was open to amendment provided the basic foundation or structure of the
Constitution was not damaged or destroyed.

Effect of the judgment :

The government of Indira Gandhi did not take kindly to this implied restriction on
its powers by the court.
On 26 April 1973, Justice Ajit Nath Ray, who was among the dissenters, was
promoted to Chief Justice of India superseding three senior Judges, Shelat, Grover
and Hegde, which was unprecedented in Indian legal history.
Advocate C.K. Daphtary termed the incident as "the blackest day in the history of
democracy".
Justice Mohammad Hidayatullah (previous Chief Justice of India) remarked that
"this was an attempt of not creating 'forward looking judges' but 'judges looking
forward' to the office of Chief Justice".
4) Maintenance to Muslim Divorced Women : Mohd. Ahmed Khan v. Shah Bano

Begum (AIR 1985 SC 945)
Explain in detail and state legal principle laid down in it : Mohd. Ahmed Khan v
Shah Bano Begum. (Apr-2013)
Explain in detail the cases in which the Supreme Court of India recognized the right
of maintenance to divorced Muslim wife. (May-2016)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Mohd._Ahmed_Khan_v._Shah_Bano_Begum
Intro :
Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844), commonly referred
to as the Shah Bano case, was a controversial maintenance lawsuit in India.
Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was
divorced by her husband in 1978.
She filed a criminal suit in the Supreme Court of India, in which she won the right
to alimony from her husband.
However, she was subsequently denied the alimony when the Indian Parliament
reversed the judgement under pressure from Islamic orthodoxy.
The judgement in favour of the woman in this case evoked criticisms among
Muslims some of whom cited Qur'an to show that the judgement was in conflict
with Islamic law. It triggered controversy about the extent of having different civil
codes for different religions, especially for Muslims in India. This case caused the
Congress government, with its absolute majority, to pass the Muslim Women
(Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the
Supreme Court and restricted the right of Muslim divorces to alimony from their

former husbands for only 90 days after the divorce (the period of Iddah in Islamic
Law).
However, in the later judgements including Daniel Latifi case and Shamima
Farooqui versus Shahid Khan case, the Supreme Court of India interpreted the act
in a manner reassuring the validity of the case and consequently upheld the Shah
Bano judgement and The Muslim Women (Protection of Rights on Divorce) Act
1986 was nullified.
Many Muslims including All India Shia Personal Law Board supported the Supreme
Court's order to make the right to maintenance of a divorced Muslim wife absolute.
Background of the case :
In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan,
an affluent and well-known advocate in Indore, Madhya Pradesh, and had five
children from the marriage.
After 14 years, Khan took a younger woman as second wife and after years of
living with both wives, he threw Shah Bano, who was then aged 62 years, and her
five children out.
In April 1978, when Khan stopped giving her the 200 per month he had
apparently promised, claiming that she had no means to support herself and her
children, she filed a petition at a local court in Indore, against her husband under
section 125 of the Code of Criminal Procedure, asking him for a maintenance
amount of 500 for herself and her children.
On November 1978 her husband gave an irrevocable talaq (divorce) to her which
was his prerogative under Islamic law and took up the defence that hence Bano
had ceased to be his wife and therefore he was under no obligation to provide
maintenance for her as except prescribed under the Islamic law which was in total
5,400.
In August 1979, the local court directed Khan to pay a sum of 25 per month to
Bano by way of maintenance.
On 1 July 1980, on a revisional application of Bano, the High Court of Madhya
Pradesh enhanced the amount of maintenance to 179.20 per month.
Khan then filed a petition to appeal before the Supreme Court claiming that Shah
Bano is not his responsibility anymore because Mr. Khan had a second marriage
which is also permitted under Islamic Law.
Opinion of Supreme Court :
On 3 February 1981, the two judge bench composed of Justice Murtaza Fazal Ali
and A. Varadarajan who first heard the matter, in light of the earlier decisions of
the court which had held that section 125 of the Code applies to Muslims also,
referred Khan's appeal to a larger Bench.
Muslim bodies All India Muslim Personal Law Board and Jamiat Ulema-e-Hind joined
the case as intervenor.

The matter was then heard by a five-judge bench composed of Chief Justice
Chandrachud, Jangnath Misra, D. A. Desai, O. Chinnappa Reddy, and E. S.
Venkataramiah.
On 23 April 1985, Supreme Court in a unanimous decision, dismissed the appeal
and confirmed the judgment of the High Court.
Supreme Court concluded that
"there is no conflict between the provisions of section 125 and those of the
Muslim Personal Law on the question of the Muslim husband's obligation to
provide maintenance for a divorced wife who is unable to maintain herself." After
referring to the Holy Quran, holding it to the greatest authority on the subject, it
held that there was no doubt that the Quran imposes an obligation on the
Muslim husband to make provision for or to provide maintenance to the divorced
wife.
SC on common civil code :
The Court also regretted that article 44 of the Constitution of India in relation to
bringing of Uniform Civil Code in India remained a dead letter and held that a
common civil code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies.
Movement against the judgment :
The Shah Bano judgment, as claimed, became the centre of raging controversy,
with the press turning it into a major national issue.
The Shah Bano judgment elicited a protest from many sections of Muslims who also
took to the streets against what they saw, and what they were led to believe, was
an attack on their religion and their right to their own religious personal laws.
Muslims felt threatened by what they perceived as an encroachment on the Muslim
Personal Law, and protested loudly at the judgment.
Governments response to the SC judgment :
After the Shah Bano judgment, many leaders in the Indian National Congress
suggested to the Prime Minister of India, Rajiv Gandhi that if the government did
not enact a law in Parliament overturning the Supreme Court judgement, the
Congress would face decimation in the polls ahead.
In 1986, the Parliament of India passed an act titled The Muslim Women
(Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court's
judgment in the Shah Bano judgment.
Diluting the Supreme Court judgment, the act allowed maintenance to a
divorced woman only during the period of iddat, or till 90 days after the divorce,
according to the provisions of Islamic law.
This was in stark contrast to Section 125 of the Code. The 'liability' of husband
to pay the maintenance was thus restricted to the period of the iddat only."
Reactions to the Muslim Women (Protection of Rights on Divorce) Act, 1986 :

The law received severe criticism from several sections of the society. The
Opposition called it another act of "appeasement" towards the minority community
by the Indian National Congress.
The All India Democratic Women's Association (AIDWA) organised demonstrations
of Muslim women against the move to deprive them of rights that they had hitherto
shared with the Hindus.
The Act was seen as discriminatory as it denied divorced Muslim women the right
to basic maintenance which women of other faiths had access to under secular law.
Lawyer and former law minister of India, Ram Jethmalani termed the act as
"retrogressive obscurantism for short-term minority populism".
Rajiv Gandhi's colleague Arif Mohammad Khan who was INC member and a
minister in Gandhi's cabinet resigned from the post and party in protest.
Critics of the Act point out that while divorce is within the purview of personal laws,
maintenance is not, and thus it is discriminatory to exclude Muslim women from a
civil law.
Challenge to the validity of the Muslim Women (Protection of Rights on Divorce) Act,
1986 :
The constitutional validity of The Muslim Women (Protection of Rights on Divorce)
Act 1986 was challenged before the Supreme Court in Danial Latifi & Anr v. Union
Of India by Daniel Latifi in 2001, who was the lawyer of Shah Bano in the
Shah Bano case.
The Supreme Court tried to maintain a balancing act, attempting to uphold Muslim
women's rights without addressing the constitutionality of gender and religious
discrimination in personal law. Court reiterated the validity of the Shah Bano
judgment. The Muslim Personal Law Board, an intervenor, questioned the authority
of the court to interpret religious texts.
The Court concluded that the Act does not, in fact, preclude maintenance for
divorced Muslim women, and that Muslim men must pay spousal support until such
time as the divorced wife remarries.
However the Court also held that if the Act accorded Muslim divorcees unequal
rights to spousal support compared with the provisions of the secular law under
section 125 of the Criminal Procedure Code, then the law would in fact, be
unconstitutional.
Further the Supreme Court construed the statutory provision in such a manner
that it does not fall foul of articles 14 and 15 of the Constitution of India.
The provision in question is Section 3(1)(a) of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 which states that
"a reasonable and fair provision and maintenance to be made and paid to her
within the iddat period by her former husband".
The Court held this provision means that reasonable and fair provision and

maintenance is not limited for the iddat period (as evidenced by the use of
word "within" and not "for"). But it extends for the entire life of the divorced
wife until she remarries
Conclusion :
Thus, through creative and progressive interpretation of the statutes, SC pulled the
muslim women out of adverse consequesces of the Muslim Women (Protection of
Rights on Divorce) Act, 1986.
Today, inspite of parliament enacting the Muslim Women (Protection of Rights on
Divorce) Act 1986, the judgment in the case of Daniel Latifi V/s. Union of India,
prevails and that muslim women are entitled to maintenance until their death/
remarriage.
5) Maintenance to Muslim Divorced Women : Danial Litifi's case (2002)

Discuss the case along with the legal principles : Daniel Latifi V/s. Union of India
(Mar2015)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Mohd._Ahmed_Khan_v._Shah_Bano_Begum
<Large portion of discussion on Shah Bano case will shall be included in to
this answer as well. Read concluding para given below.>
Short Note from http://www.legalserviceindia.com/article/l141-Danial-Latifi-v.-Union-
of-India.html
Prior to the Supreme Court judgement in Mohd Ahmed Khan v. Shah Bano Begum,
it was generally held that the Muslim women did not have any right of maintenance
once the period of iddat(period of separation) is over. But in this case the Supreme
Court held that divorced Muslim women had the right to maintenance even after
the period of iddat was over.
This judgment was followed by various repercussions in the Muslim community who
felt their faith was under threat. The Muslim Personal Law Board opined that the
Supreme Court was wrong in interpreting the holy Quran as per a judicial stand
taken whereby it was held that the court would not interpret religious scriptures or
holy books. The parliament to undo the effect of this judgement passed the Muslim
Women (Protection of Rights on Divorce) Act, 1986, which provided that under
section 3(1)(a) a divorced women is entitled to reasonable and fair provision and
maintenance within the iddat period.
The Act while nullifying the Shah Bano ratio, tried to restrict the divorced Muslim
womans right to maintenance up to the iddat period only. A classic example of how

political considerations ate into the rights of a section of the people, the
Constitutional validity of the Act was challenged on the ground of being violative of
Article 14, 15 and 21. The basic question raised by right activists was the necessity
of enacting an Act, completely segregating a section of the population, while a
secular remedy was already available under Section 125 of the Code of Criminal
Procedure.
The five judge bench of the Supreme Court consisting of Mr. G.B. Pattanaik, Mr. S.
Rajendra Babu, Mr. D.P. Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil
upheld the Constitutional validity of the Act. The Supreme Court approached a
middle path and held that reasonable and fair provisions include provision for the
future of the divorced wife (including maintenance) and it does not confine itself to
the iddat period only. The Constitutional validity of the Act was also upheld.
Conclusion and present scenario :
Before the Danial Latifi judgement, the expression provision and
maintenance created confusion as the High Court of Kerala in Ali v. Sufaira the
Bombay High Court in the case of Abdul Rahman Shaikh v. Shehnaz Karim
Shaikh and the Gujarat High Court in the case of Arab Ahemadhia Abdulla v.
Arab Bail Mohmuna Saiyadbhai that the expression reasonable and fair provision
meant arrangement for a lump sum amount for the future provision of the wife
within the iddat period other than the iddat period maintenance.
But contrary opinions were given by the judgements of the Andhra Pradesh
High Court in the case of Usman Bahmani v. Fathimunnisa and the Calcutta
High Court in the case of Abdul Rashid v. Sultana Begum and it was held that
both expressions provision and maintenance meant the same, and it covered
only maintenance for the iddat period only.
After this judgement the judiciary has held in the cases like in the cases of
Bilkis Begum v. Majid Ali Gazi it was held that claim of maintenance of the
divorced wife cannot be proceeded under Section 125 of the Cr PC after the
enactment of the 1986 Act.
The controversy still remains. The interpretation provided by the judiciary in the
Danial Latifi case fails to satisfy the minds of the reasonable people, as there are
glaring defectes on the face of it. But we should also keep in mind the social
perspective. On one hand where it upholds the Constitutional validity of the Act,
it also interprets the provisions of the Act in favour of the divorced Muslim
women.
The Court could envisage that the country at such a juncture of Economic and
Social growth, could not bear the burden of aftermath of another Shah Bano. But
keeping in mind the changing times and the constantly evolving meaning of
Article 21of the Constitution, which has been held to include the right to live
with dignity under the case of Olga Tellis v. Bombay Municipal Corporation and
Maneka Gandhi v. Union of India, it is a duty of the society to make sure that

the divorced Muslim wife have the provision to maintain herself with dignity and
is not led to destitution and vagrancy. The Personal law may connote a different
thing but keeping the changing society in mind, it should be open to
interpretation only for positive changes. That only can help us achieve the
objectives of Social Justice laid down both expressed and implicitly in our
Constitution.
Short Note : from http://www.the-laws.com/Encyclopedia/Browse/Case?
CaseId=001002993100
(1.) The constitutional validity of the Muslim Women (Protection of Rights on
Divorce) Act. 1986 [hereinafter referred to as 'the Act' is in challenge before us in
these cases.
(2.) The facts in Mohd. Ahmed Khan v. Shah Bano Begum and Ors. [(1985) 2 SCC
556], are as follows. The husband appealed against the judgement of the Madhya
Pradesh High Court directing him to pay to his divorced wife Rs. 179/ - per month,
enhancing the paltry sum of Rs. 25 per month originally granted by the Magistrate.
The parties had been married for 43 years before the ill and elderly wife had been
thrown out of her husband's residence. For about two years the husband paid
maintenance to his wife at the rate of Rs. 200/ - per month. When these payments
ceased she petitioned under Section 125 of Cr. P.C. The husband immediately
dissolved the marriage by pronouncing a triple talaq. He paid Rs. 3.000/ - as
deferredmehr and a further sum to cover arrears of maintenance and maintenance
for the iddat period and he sought thereafter to have the petition dismissed on the
ground that she had received the amount due to her on divorce under the Muslim
Law applicable to the parties. The important feature of the case was that the wife
had managed the matrimonial home for more than 40 years and had born and
reared five children and was incapable of taking up any career or independently
supporting herself at that late stage of her life - remarriage was an impossibility in
that case. The husband a successful advocate with an approximate income of Rs.
5,000/ - per month provided Rs. 200/ - per month to the divorced wife, who had
shared his life for half a century and mothered his five children and was in
desperate need of money to survive.
(3.) Thus, the principal question for consideration before this Court was the
interpretation of Section 127(3)(b) Cr.P.C. that where a Muslim woman had been
divorced by her husband and paid her mehr, would it indemnify the husband from
his obligation under the provisions of Section 125 of Cr.P.C. A five -Judge Bench of
this Court reiterated that the Code of Criminal Procedure controls the proceedings
in such matters and overrides the Personal Law of the parties. If there was a
conflict between the terms of the Code and the rights and obligations of the
individuals, the former would prevail. This Court pointed out that mehr is more
closely connected with marriage than with divorce though mehr or a significant
portion of it, is usually payable at the time the marriage is dissolved, whether by
death or divorce. This fact is relevant in the context of Section 125 of Cr.P.C. even

if it is not relevant in the context of Section 127(3)(b) of Cr.P.C. Therefore, this

Court held that it is a sum payable on divorce within the meaning of Section 127(3)
(b) of Cr.P.C. and held that mehr is such a sum which cannot ipso facto absolve the
husband's liability under the Act.;
6) Uniform Civil Code : Sarla Mudgal President v. Union of India (AIR 1995 SC
153)
Discuss the principle established in the case of Sarla Madugal v/s. Union of India.
(Apr-2014)
Discuss the principle of Uniform Civil Code in the light of decisions of the Apex
Court. (Mar2015)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Sarla_Mudgal,_%26_others._v._Union_of_India
https://wrcaselaw.wordpress.com/2012/12/13/smt-sarla-mudgal-president-
kalyani-ors-vs-union-of-india/
Intro :
Sarla Mudgal v. Union Of India is a Supreme Court of India case.
Its judgement in 1995 laid down the principles against the practice of solemnizing
second marriage by conversion to Islam, with first marriage not being dissolved.
The verdict discusses issue of bigamy, the conflict between the personal laws
existing on matters of marriage and invokes article 44 of Indian Constitution. It is
considered a landmark decision that highlighted the need for a uniform civil code.
Facts of the case :
The present case has 4 petitioners. It is a writ petition under Article 32 of the
Indian Constitution.
Petitioner 1 is the President of KALYANI a registered society which is an
organisation working for the welfare of needy-families and women in distress.
Meena Mathur was married t Jitender Mathur in 1978. In 1988 she shocked
to learn that her husband had solemnized second marriage with one Sunita
Narula alias Fathima. The marriage was solemnised after they converted
themselves to Islam and adopted Muslim religion. According to the petitioner,
conversion of her husband to Islam was only for the purpose of marrying Sunita
and circumventing the provisions of Section 494, IPC.
Jitender Mathur asserts that having embraced Islam, he can have four wives
irrespective of the fact that his first wife continues to be Hindu.
Petitioner 2, Sunita alias Fathima is another petitioner of 1990. She contends

that she along with Jitender Mathur who was earlier married to Meena Mathur
embraced Islam and thereafter got married. A son was born to her. She further
states that after marrying her, Jitender Prasad, under the influence of her first
Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to
Hinduism and had agreed to maintain his first wife and three children.
Her grievance is that she continues to be Muslim, not being maintained by her
husband and has no protection under either of the personal laws.
Petitioner 3, Geeta Rani, was married to Pradeep Kumar in 1988. In 1991, the
petitioner learnt that Pradeep Kumar ran away with one Deepa and after
conversion to Islam married her. It is stated that conversion to Islam was only for
the purpose of facilitating the second marriage.
Petitioner 4, Sushmita Ghosh was married to G.C. Ghosh in 1984. In 1992 The
husband finally told the petitioner that he had embraced Islam and would soon
marry one Vinita Gupta. He had obtained a certificate dated from the Qazi
indicating that he had embraced Islam. In the writ petition, the petitioner has
further prayed that her husband be restrained from entering into second marriage
with Vinita Gupta.
Issues :
In the case Section 494 of IPC, article 14, 15 20 were discussed in details. The
court discussed in detail following three issues :
Whether a Hindu husband, married under Hindu law, by embracing Islam,
solemnize a second marriage?
Whether such a marriage without having the first marriage dissolved under the
law, would be a valid marriage qua the first wife who continued to be a Hindu?
Whether the apostate husband be guilty of the offence of Section 494 of the
IPC?
Judgement :
Brief version :
The Court held that the first marriage would have to be dissolved under the
Hindu Marriage Act, 1955. The mans first marriage would therefore, still be valid
and under Hindu law, his second marriage, solemnized after his conversion,
would be illegal under Section 494 of the Indian Penal Code, 1860.
The Sarla Mudgal judgment has issued no directions for implementations of
Uniform Civil Code, though Justice Kuldeep Singh has requested the government
to look at the Article 44 of the Constitution.
Detailed version follows :
Whether a Hindu husband, married under Hindu law, by embracing Islam,
solemnize a second marriage?
Where a marriage takes place under Hindu Law the parties acquire a status and
certain rights by the marriage itself under the law governing the Hindu Marriage

and if one of the parties is allowed to dissolve the marriage by adopting and
enforcing a new personal law, it would as good as to destroying the existing
rights of the other spouse who continues to be Hindu.
under the Hindu Personal Law as it existed prior to its codification in 1955, a
Hindu marriage continued to subsist even after one of the spouses converted
to Islam. There was no automatic dissolution of the marriage.
The Court further observed that the second marriage of an apostate-husband
married under the Hindu Marriage Act would be in violation of the rules of
equity, justice and good conscience, as also those of natural justice.
Assuming that a Hindu husband has a right to embrace Islam as his religion,
he has no right under the Act to marry again without getting his marriage
under the Act dissolved. The second marriage after conversion to Islam
would, thus, be in violation of the rules of natural justice and as such would
be void.
Keeping in mind the interests of both the Hindu and Muslim communities and the
plurality of laws, the court concluded that :
Since it is not the object of Islam nor is the intention of the enlightened
Muslim community that the Hindu husbands should be encouraged to become
Muslim merely for the purpose of evading their own personal law by marrying
again, the courts can be persuaded to adopt a construction of the laws
resulting in denying the Hindu husband converted to Islam the right to marry
again without having his existing marriage dissolved in accordance with law.
Whether such a marriage without having the first marriage dissolved under the law,
would be a valid marriage qua the first wife who continued to be a Hindu?
The Court interpreted the provisions of the Hindu Marriage Act 1955 while
answering this question. It held that a Hindu marriage cannot, under any
circumstances, be dissolved unless by a decree of divorce under the grounds
enumerated in the act. It also pointed out that the Act has an overriding effect
on any customs or usage prevalent before the commencement of the act.
It observed : Overriding effect of Act save as otherwise expressly provided in
this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as
part of that law in force immediately before the commencement of this Act
shall cease to have effect with respect to any matter for which provision is
made in this Act;
(b) any other law in force immediately before the commencement of this Act
shall cease to have effect in so far as it is inconsistent with any of the
provisions contained in this Act.
A marriage solemnised, whether before or after the commencement of the Act,
can only be dissolved by a decree of divorce on any of the grounds enumerated
in Section 13 of the Act.

One of the grounds under Section 13 (i) (ii) is that the other party has
ceased to be a Hindu by conversion to another religion.
Sections 11 and 15 of the Act is as under:-
Void marriages:- Any marriage solemnized after the commencement of
this Act shall be null and void and may, on a petition presented by either
party thereto against the other party, be so declared by a decree of nullity
if it contravenes any one of the conditions specified in clauses (i), (iv) and
(v) of Section 5.
Divorced persons when may marry again.- When a marriage has been
dissolved by a decree of divorce and either there is no right of appeal
against the decree or, of there is such a right of appeal the time for
appealing has expired without an appeal having been presented or an
appeal has been presented but has been dismissed, it shall be lawful for
either party to the marriage to marry again.
After looking at the legal provisions and giving a fair interpretaon, the Court
concluded that :
It is obvious from the various provisions of the Act that the modern Hindu
Law strictly enforces monogamy.
A marriage performed under the Act cannot be dissolved except on the
grounds available under section 13 of the Act.
In that situation parties who have solemnised the marriage under the Act
remain married even when the husband embraces Islam in pursuit of other
wife.
A second marriage by an apostate under the shelter of conversion to Islam
would nevertheless be a marriage in violation of the provisions of the Act by
which he would be continuing to be governed so far as his first marriage
under the Act is concerned despite his conversion to Islam.
The second marriage of an apostate would, therefore, be illegal marriage qua
his wife who married him under the Act and continues to be Hindu. Between
the apostate and his Hindu wife the second marriage is in violation of
the provisions of the Act and as such would be non est
Whether the apostate husband be guilty of the offence of Section 494 of the IPC?
Section 494 Indian Penal Code is as under :-
Marrying again during lifetime of husband or wife : Whoever, having a
husband or wife living, marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife, shall be
punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
It is no doubt correct that the marriage solemnized by a Hindu husband after
embracing Islam may not strictly be a void marriage under the Act because he

is no longer a Hindu, but the fact remains that the said marriage would be in
violation of the Act which strictly professes monogamy.
The expression void for the purpose of the Act has been defined under
Section 11 of the Act. It has a limited meaning within the scope of the
definition under the section. On the other hand the same expression has a
different purpose under Section 494 IPC and has to be given meaningful
interpretation.
The expression void under Section 494 IPC has been used in the wider
sense. A marriage which is in violation of any provisions of law would be void
in terms of the expression used under Section 494 IPC.
A Hindu marriage solemnized under the Act can only be dissolved on any of
the grounds specified under the Act. Till the time a Hindu marriage is
dissolved under the Act none of the spouses can contract second marriage.
Conversion to Islam and marrying again would not, by itself, dissolve the
Hindu marriage under the Act. The second marriage by a convert would
therefore be in violation of the Act and as such void in terms of Section 494
IPC.
Any act which is in violation of mandatory provisions of law is per se void. The
real reason for the void-ness of the second marriage is the subsisting of the first
marriage which is not dissolved even by the conversion of the husband. It would
be giving a go-by to the substance of the matter and acting against the spirit of
the statute if the second marriage of the convert is held to be legal.
The learned Judges further reiterated the Robasa Khanum vs. Khodabad Iranis
case[8] and held :
the conduct of a spouse who converts to Islam has to be judged on the
basis of the rule of justice and right or equity and good conscience. A
matrimonial dispute between a convert to Islam and his or her non-Muslim
spouse is obviously not a dispute where the parties are Muslims and,
therefore, the rule of decision in such a case was or is not required to be the
Muslim Personal Law. In such cases the Court shall act and the Judge shall
decide according to justice, equity and good conscience.
The second marriage of a Hindu husband after embracing Islam being
violative of justice, equity and good conscience would be void on that ground
also and attract the provisions of Section 494, IPC.
Finally, the Court remarked :
The interpretation we have given to Section 494 IPC would advance the
interest of justice. It is necessary that there should be harmony between the
two systems of law just as there should be harmony between the two
communities.
The result of the interpretation, we have given to Section 494 IPC, would be
that the Hindu law on the one hand and the Muslim law on the other hand

would operate within their respective ambits without trespassing on the

personal laws of each other.
Conclusion
The Supreme Court held that the second marriage of a Hindu- husband after
conversion to Islam, without having his first marriage dissolved under law, would
be invalid.
The second marriage would be void in terms of the provisions of Section 494 IPC,
and
the apostate-husband would be guilty of the offence under Section 494 IPC.
Significance of the case :
Sarla Mudgal judgment was hailed as precedent for Uniform Civil Code, and cited
various cases where personal laws of different religions have come in conflict. The
second marriage of Hindu Husband was considered void under Section 494 of IPC,
In the judgement the judge gets into detailed examination of the case, Justice
Kuldip Singh, while delivering the judgment remarked,
When more than 80% of the citizens have already been brought under the
codified personal law there is no justification whatsoever to keep in abeyance,
any more, the introduction of uniform civil code for all citizens in the territory
of India.
There was an appeal to the government to have a re-look at Article 44 of Indian
Constitution, which suggest Uniform civil code for the citizens.
The judgment was criticized by some people for remarks made on minorities made
as part of the judgment, and invocation of Uniform Civil Code.
7) Guidelines of Prevention of Sexual Harassment to women at working place :

Visakha v. State of Rajasthan (AIR 1997 SC 3011)
Discuss the case of Visakha V. State of Rajasthan and explain the guidelines issued by
the Supreme Court of India for prevention of sexual harassment of women at working
place. (Apr-2013)
Explain in detail various guidelines laid down by the Supreme Court to prevent the
sexual harassment to women at working places. (Mar2015)
Explain along with legal principle involved therein : Vishaka -vs- State of
Rajasthan. (May-2016)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Vishakha_and_others_v_State_of_Rajasthan

Intro :
Vishakha and others v State of Rajasthan was a 1997 Indian Supreme Court case
where Vishakha and other women groups filed Public Interest Litigation (PIL)
against State of Rajasthan and Union of India to enforce the fundamental rights of
working women under Articles 14, 19 and 21 of the Constitution of India.
The petition was filed after Bhanwari Devi, a social worker in Rajasthan was
brutally gang raped for stopping a child marriage.
The court decided that the consideration of "International Conventions and norms
are significant for the purpose of interpretation of the guarantee of gender equality,
right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the
Constitution and the safeguards against sexual harassment implicit therein."
The petition, resulted in what are popularly known as the Vishaka Guidelines .
The judgment of August 1997 given by a bench of J. S. Verma (then C.J.I)., Sujata
Manohar and B. N. Kirpal, provided the basic definitions of sexual harassment at
the workplace and provided guidelines to deal with it. It is seen as a significant
legal victory for women's groups in India
Inherent powers of SC under Art-142 :
The SC decision in Vishaka v. State of Rajasthan is one such instance wherein a
three-Judge Bench of this Court gave several directions to prevent sexual
harassment of women at the workplace.
Taking into account the absence of enacted law to provide for effective
enforcement of the right of gender equality and guarantee against sexual
harassment, Verma, C.J. held that,
guidelines and norms given by the Court will hold the field until legislation was
enacted for the purpose.
It was clarified that this Court was acting under Article 32 of the Constitution
and the directions would be treated as the law declared by the Court under
Article 141 of the Constitution. (para 16)
In India, before 1997, there were no formal guidelines for how an incident
involving sexual harassment at workplace should be dealt by an employer.
Women experiencing sexual harassment at workplace had to lodge a complaint
under Section 354 of the Indian Penal Code that deals with the 'criminal assault of
women to outrage women's modesty' and Section 509 that punishes an individual
or individuals for using a 'word, gesture or act intended to insult the modesty of a
woman'.
Both these sections left the interpretation of 'outraging women's modesty' to the
discretion of the police officer.
Facts of the case :

In 1992 Bhanwari Devi a social worker in Rajasthan was brutally gang raped by a
number of upper class men, because she had tried to stop a child marriage.
Bhanwari Devi was determined to get justice and lodged a case against the
offenders. However, the accused was acquitted by a trial court.
This appalling injustice, together with the fighting spirit of Bhanwari Devi, inspired
several womens groups and NGOs to file a petition in the Supreme Court under the
collective platform of Vishakha.
Aftermath :
The court decided that the consideration of "International Conventions and norms
are significant for the purpose of interpretation of the guarantee of gender equality,
right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the
Constitution and the safeguards against sexual harassment implicit therein."
What is sexual harassment ? It is this case wherein the Supreme Court of India
defined sexual harassment and set guidelines for employers.
Sexual harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as :
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature .
Thus, sexual harassment need NOT involve physical contact. Any act that creates a
hostile work environment - be it by virtue of cracking lewd jokes, verbal abuse,
circulating lewd rumours etc. counts as sexual harassment.
The creation of a hostile work environment through unwelcome physical verbal or
non-verbal conduct of sexual nature may consist not of a single act but of pattern
of behaviour comprising many such acts.
Thus, it is important that the victim report such behaviour as soon as possible and
not wait for it to become worse.
In some cases, the psychological stigma of reporting the conduct of a co-worker
might require a great deal of courage on the part of the victim and they may report
such acts after a long period of time.
The guidelines suggest that the complaint mechanism should ensure time bound
treatment of complaints, but they do not suggest that a report can only be made
within a short period of time since the incident occurred.
Significance of the case :
For the first time Indian courts in a marvelously innovative stream of cases
culminating in the Vishaka v. State of Rajasthan on gender discrimination have
signaled that some human right and justice related treaties may be part of Indian

law without being enacted. AND, Parliament does not have a post-entry control on
whether a treaty is binding in all cases.
The Supreme Court in Visakha v. State of Rajasthan, took recourse to International
Convention for the purpose of construction of domestic law. The Court observed :
In the absence of domestic law occupying the field to formulate effective
measures to check the evil of sexual harassment of working women at all work
places, the contents of International Conventions and norms are significant for
the purpose of interpretation of the guarantee of gender equality, right to work
with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and
the safeguards harassment implicit therein.
Any international convention not inconsistent with the fundamental rights and in
harmony with its spirit must be read into those provisions to enlarge the
meaning and content thereof, to promote the object of the Constitutional
guarantee.
Effect of the Visaka judgment :
The Supreme Court of India's judgement only proposed guidelines to alleviate the
problem of sexual harassment in 1997.
India finally enacted its law on prevention of sexual harassment against female
employees at the workplace.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 ("Sexual Harassment Act") has been made effective on April
23, 2013
8) Principle of Absolute Liability : Sri Ram Food Gas Leakage Case Oleum Gas
Leak Case :
Discuss the case along with the legal principles : Sri Ram Food Gas Leakage Case (M.
C. Mehta V/s. Union of India) (Mar2015)
Discuss in detail the principle of Absolute Liability propounded by the Supreme
Court in the Oleum Gas Leakage Case. (May-2016)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/M._C._Mehta_v._Union_of_India
http://www.legalserviceindia.com/article/l265-M.C.-Mehta-v.-Union-of-India.html
http://www.legalservicesindia.com/article/article/legal-aspects-of-the-bhopal-gas-
tragedy-373-1.html
Answer is given in 2 parts :

1. Development of the Principle of Absolute Liability,

2. Case-law : Sri Ram Food Gas Leakage Case Oleum Gas Leak Case
1. Development of the Principle of Absolute Liability :
<Read this from study notes on 304E Public Interest Lawyering (PIL)>
2. Case-law : Sri Ram Food Gas Leakage Case Oleum Gas Leak Case :
Intro :
The Principle of Absolute Liability was first laid down in M C Mehta v. Union
of India (Oleum gas case) : 1987 SCR (1) 819 :
Oleum Gas leak occurred nearly one year after the Bhopal Gas Disaster which
triggered hectic discussions on the risks posed by hazardous industries
The case also laid down the concept of deep pockets.
Brief facts :
This gas leak occurred during Dec-1985, soon after the infamous Bhopal gas
leak and created a lot of panic in Delhi.
One person died in the incident and few were hospitalized.
The main issue in the original writ petition which was filed in order to obtain a
direction for closure of the various units of Shriram on the ground that they were
hazardous to the community.
But while the writ petition was pending there was escape of oleum gas from one
of the units of Shriram Foods on 4 and 6 December 1985 and applications were
filed by the Delhi Legal Aid & Advice Board and the Delhi Bar Association for
award of compensation to the persons who had suffered harm on account of
escape of oleum gas.
The Court thought that these applications for compensation raised certain
important issues and those issues should be addressed by a constitutional
bench.
There was only one preliminary objection filed by the counsel for the defendant,
and this was that the Court should not proceed to decide these constitutional
issues since there was no claim for compensation originally made in the writ
petition and these issues could not be said to arise on the writ petition.
However, the Court, while rejecting this objection, said that
though it is undoubtedly true that the petitioner could have applied for
amendment of the writ petition so as to include a claim for compensation but
merely because he did not do so, the applications for compensation cannot be
thrown out.
These applications for compensation are for enforcement of the fundamental
right to life enshrined in Article 21 of the Constitution and while dealing with
such applications we cannot adopt a hyper-technical approach which would
defeat the ends of justice

Issues :
1. Whether this Honble Court has jurisdiction to hear the present matter?
2. Whether Article 21 was available against Shriram and whether Shriram owned
by Delhi Cloth Mills Ltd Public Co, comes within the meaning of State under
Article 12?
3. Whether compensation would be provided to the victims of the oleum gas leak
tragedy, and if so, what would be the measurement of liability of such an
enterprise engaged in hazardous activities,
4. Quantum of compensation.
Judgment :
Issue-1 : It may now be taken as well settled that Article 32 does not merely
confer power on this Court to issue a direction, order or writ for enforcement of
the fundamental rights
but it also lays a constitutional obligation on this Court to protect the
fundamental rights of the people
and for that purpose this Court has all incidental and ancillary powers
including the power to forge new remedies and fashion new strategies
designed to enforce the fundamental rights.
Issue-2 : the activity of producing chemicals and fertilizers is deemed by the
State to be an industry of vital public interest, whose public import necessitates
that the activity should be ultimately carried out by the State itself,
in the interim period with State support and under State control, private
corporations may also be permitted to supplement the State effort.
The argument of the applicants on the basis of this premise was that in view
of this declared industrial policy of the State, even private corporations
manufacturing chemicals and fertilizers can be said to be engaged in activities
which are so fundamental to the Society as to be necessarily considered
government functions
Issue-3 : Where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an accident in the
operation of such hazardous or inherently dangerous activity resulting in escape
of toxic gas,
THEN the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident,
and such liability is not subject to any of the exceptions which operate
vis--vis the tortious principle of strict liability under the rule in
Rylands v. Fletcher.
Issue-4 : Principle of deep pocket or affluence of defendants : We would also
like to point out that the measure of compensation in the kind of cases referred

to in the preceding paragraph must be co-related to the magnitude and capacity

of the enterprise
because such compensation must have a deterrent effect.
The larger and more prosperous the enterprise, the greater must be the
amount of compensation payable by it for the harm caused on account of an
accident in the carrying on of the hazardous or inherently dangerous activity
by the enterprise.
Observations by the court : The Supreme Court made the following observation :
Issue-2 : Since we are not deciding the question as to whether Shriram is an
authority within the meaning of Article 12 so as to be subjected to the discipline
of the fundamental right under Article 21,
we do not think it would be justified in setting up a special machinery for
investigation of the claims for compensation made by those who allege that
they have been the victims of oleum gas escape.
But we would direct that Delhi Legal Aid and Advice Board to take up the cases
of all those who claim to have suffered on account of oleum gas and to file
actions on their behalf in the appropriate court for claiming compensation
against Shriram.
Such actions claiming compensation may be filed by the Delhi Legal Aid and
Advice Board within two months from today and the Delhi Administration is
directed to provide the necessary funds to the Delhi Legal Aid and Advice Board
for the purpose of filing and prosecuting such actions.
The High Court was directed to nominate one or more Judges as may be
necessary for the purpose of trying such actions so that they may be
expeditiously disposed of.
Conclusion :
When an enterprise or (an individual) is engaged in hazardous or inherently
dangerous industry,
the principle of safe design would be that one does not guard merely against
the most predictable, routine type of accidents.
Rather one tries to anticipate the worst that could happen, even if it is highly
unlikely,
and not only guard against it, but prepare to contain it and make sure that
there is no way for accident to take place.
However, IN CASE, any harm results on account of such hazardous or inherently
dangerous activity THEN
the enterprise is absolutely liable to compensate for such harm,
and that it should be no defence for the enterprise to say that it had taken
all reasonable care / extreme precautions

or that the harm occurred without any negligence on its part.

and that it should be no defence for the enterprise to argue that the direct
or the proximate cause of the accident is actually an Act of God or that it is
due to some third party intervention.
9) Medical Negligence and liabilities of Medical Practitioners : Jecob Methew v.

State of Punjab (AIR 2005 SC 3180)
Discuss the principles laid down by the Supreme Court explaining medical negligence
and liabilities of medical practitioners. (Apr-2013, Apr-2014)
"It is very difficult to hold any medical practitioner criminally liable while treating a
patient." Discuss this statement in the light of the principle laid down by the Apex
Court through relevant decisions. (May-2016)
Discuss the case along with the legal principles : Jacob Methews V/s. State of
Punjab (AIR 2005 SC 3180) (Mar2015)
ANSWER :
Refer :
http://www.indiamedicaltimes.com/2015/08/06/review-salient-points-of-jacob-
mathew-vs-state-of-punjab-judgement/
Intro :
On August 5, 2005, a Supreme Court bench of Chief Justice R C Lahoti, Justice G P
Mathur and Justice P K Balasubramanyan while pronouncing its judgement in the
case of Jacob Mathew vs State of Punjab came to the rescue of doctors accused of
medical negligence and criminal action. This judgment has been followed in many
subsequent cases of similar nature.
Brief facts of the case :
The respondent no.2, in Jecob Methew v. State of Punjab (AIR 2005 SC 3180), filed
a First Information Report with police station, Division No. 3, Ludhiana, whereupon
an offence under Section 304A read with Section 34 of the Indian Penal Code (for
short "the IPC") was registered.
The gist of the information is that on 15.2.1995, the informant's father, late Jiwan
Lal Sharma was admitted as a patient in a private ward of a hospital.
On February 22, 1995 at about 11 p.m., the patient felt difficulty in breathing. The
complainant's elder brother, who was present in the room contacted the duty
nurse, who in turn called a doctor to attend to the patient.
No doctor turned up for 20-25 minutes. Then doctors came to the room of the
patient. An oxygen cylinder was brought and connected to the mouth of the
patient, but the breathing problem increased further.

The patient tried to get up, but the medical staff asked him to remain in the bed.
The oxygen cylinder was found to be empty. There was no other gas cylinder
available in the room.
Son of the patient went to the adjoining room and brought a gas cylinder.
However, there was no arrangement to make the gas cylinder functional and
meanwhile, 5-7 minutes were wasted. By this time, another doctor came and
declared that the patient was dead.
The complaint as per records reads as follows. The death of my father has
occurred due to the carelessness of doctors and nurses and nonavailability of
oxygen cylinder and the empty cylinder was fixed on the mouth of my father and
his breathing was totally stopped hence my father died. I sent the dead body of my
father to my village for cremation and for information I have come to you. Suitable
action be done.
Further developments :
On the above said report, an offence under Sections 304-A and 34 of the Indian
Penal Code was registered and investigated.
It was submitted before the High Court that there was no specific allegation of any
act of omission or commission against the accused persons in the entire plethora of
documents comprising the challan papers filed by the police against them.
The learned single Judge who heard the petition formed an opinion that the plea
raised by the appellant was available to be urged in defense at the trial and
therefore, a case for quashing the charge was not made out.
Feeling aggrieved the appellant has filed these appeals by special leave before the
Supreme Court.
Supreme Court judgment : Guidelinesregarding prosecuting medical professionals :
In the judgement, the apex court observed:
A medical practitioner faced with an emergency ordinarily tries his best to
redeem the patient out of his suffering. He does not gain anything by acting with
negligence or by omitting to do an act A surgeon with shaky hands under fear
of legal action cannot perform a successful operation and a quivering physician
cannot administer an end-dose to his patients Blame is a powerful weapon. Its
inappropriate use distorts tolerant and constructive relations between people.
The courts observations can be summed up as following :
(1) Negligence is the breach of a duty caused by omission to do something
which a reasonable man guided by those considerations which ordinarily regulate
the conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as given in Law of
Torts, the essential components of negligence are three: duty, breach and
resulting damage.
(2) Negligence in the context of medical profession necessarily calls for a

treatment with a difference. To infer rashness or negligence on the part of a

professional, in particular a doctor, additional considerations apply.
A case of occupational negligence is different from one of professional
negligence.
A simple lack of care, an error of judgment or an accident is not proof of
negligence on the part of a medical professional.
So long as a doctor follows a practice acceptable to the medical profession of
that day, he cannot be held liable for negligence merely because a better
alternative course or method of treatment was also available or simply
because a more skilled doctor would not have chosen to follow or resort to
that practice or procedure which the accused followed.
So also, the standard of care, while assessing the practice as adopted, is
judged in the light of knowledge available at the time of the incident, and not
at the date of trial.
Similarly, when the charge of negligence arises out of failure to use some
particular equipment, the charge would fail if the equipment was not generally
available at that particular time (that is, the time of the incident) at which it is
suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings :
either he was not possessed of the requisite skill which he professed to have
possessed,
or, he did not exercise, with reasonable competence in the given case, the
skill which he did possess.
The standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising
ordinary skill in that profession.
It is not possible for every professional to possess the highest level of
expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of better qualities, but that
cannot be made the basis or the yardstick for judging the performance of the
professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case
[1957] 1 WLR 582 holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law.
What may be negligence in civil law may not necessarily be negligence in
criminal law.
For negligence to amount to an offence, the element of mens rea (guilty
mind/intention) must be shown to exist.
For an act to amount to criminal negligence, the degree of negligence should
be much higher i.e. gross or of a very high degree.

Negligence which is neither gross nor of a higher degree may provide a

ground for action in civil law but cannot form the basis for criminal
prosecution.
(6) The word gross has not been used in Section 304A of IPC, yet it is settled
that in criminal law negligence or recklessness, to be so held, must be of such a
high degree as to be gross.
The expression rash or negligent act as occurring in Section 304A of the IPC
has to be read as qualified by the word grossly.
(7) To prosecute a medical professional for negligence under criminal law it must
be shown that the accused did something or failed to do something which in the
given facts and circumstances no medical professional in his ordinary senses and
prudence would have done or failed to do.
The hazard taken by the accused doctor should be of such a nature that the
injury, which resulted, was most likely imminent.
(8) Res ipsa loquitur (an act speaks for itself) is only a rule of evidence and
operates in the domain of civil law especially in cases of torts and helps in
determining the onus of proof in actions relating to negligence.
It cannot be pressed in service for determining per se the liability for
negligence within the domain of criminal law.
Res ipsa loquitur has, if at all, a limited application in trial on a charge of
criminal negligence.
Guideline for Arresting Doctors in case of Criminal Action :
(9) A private complaint may not be entertained unless the complainant has
produced prima facie evidence before the Court in the form of a credible opinion
given by another competent doctor to support the charge of rashness or
negligence on the part of the accused doctor.
The investigating officer should, before proceeding against the doctor accused
of rash or negligent act or omission, obtain an independent and competent
medical opinion preferably from a doctor in government service qualified in
that branch of medical practice who can normally be expected to give an
impartial and unbiased opinion applying Bolams test to the facts collected in
the investigation.
A doctor accused of rashness or negligence, may not be arrested in a routine
manner (simply because a charge has been levelled against him). Unless his
arrest is necessary for furthering the investigation or for collecting evidence or
unless the investigation officer feels satisfied that the doctor proceeded
against would not make himself available to face the prosecution unless
arrested, the arrest may be withheld.

10) Principle of Vicarious Liability : State of Rajasthan v. Vidhyawati (AIR 1963

SC 1295)
Discuss in detail the principle of vicarious liability laid down by the Supreme Court.
(Mar2015)
Discuss the principle of vicarious liability with relevant Indian Cases. (Apr-2013)
ANSWER :
Refer :
Good presentation of case - https://www.lawctopus.com/academike/state-
rajasthan-vs-mst-vidhyawati-case-analysis/
Summary of the principles established :
Editors Note: In this case, the claim for damages was made by the dependants of
a person who died in an accident caused by the negligence of the driver of a jeep
maintained by the Government for official use of the Collector of Udaipur while it
was being brought back from the workshop after repairs. The Rajasthan High Court
took the view-that the State was liable, for the State is in no better position in so
far as it supplies cars and keeps drivers for its Civil Service. The Supreme Court
upheld the same and observed that for acts done in the course of employment but
not in connection withsovereign powers of the State, State like any other employer
is vicariously liable.
FACTS OF THE CASE :
Lokumal was a temporary employee of the State of Rajasthan, as a motor driver on
probation. In February, 1952, he was employed as the driver of a Government jeep
car, registered as No. RUM 49, under the Collector of Udaipur. The said car was
given for necessary repairs at a workshop.
After the repairs were finished, Lokumal, while driving the car back along a public
road, in the evening of February 11, 1952, knocked down one Jagdishlal, who was
walking on the footpath by the said of the public road in Udaipur city, causing him
multiple injuries, including fractures of the skull and backbone, resulting in his
death three days later, in the hospital where he had been removed for treatment.
The plaintiffs who are Jagdishlals widow, Vidyawati and a minor daughter, aged
three years, through her mother as next friend sued the said Lokumal and the
State of Rajasthan for damages for the tort aforesaid. They claimed the
compensation of Rs. 25,000/- from both the defendants.
The suit was majorly contested by the state of Rajasthan, i.e. defendant no. 2 and
defendant no. 1, Lokumal, remained ex parte. The present suit has been contended
before the Honble Supreme Court, by State of Rajasthan, as the appellant on the
ground that it was not liable for the tortious act of its employee.
Procedural History :
The Trial Court, after an elaborate discussion of the evidence, decree the suit

against the first defendant ex-parte, and dismissed it without costs against the
second defendant. On appeal by the plaintiffs, the High Court of Rajasthan allowed
the appeal and decreed the suit against the second defendant also, with costs in
both the Courts.
The State of Rajasthan applied for and obtained the necessary certificate that the
case fulfils the requirements of Art. 133(1)(c) of the Constitution of India. The
High Court rightly observed that an important point of law of general public
importance, namely, the extent of the liability of the State, in tort, was involved.
But in view of the fact that both the Courts below have agreed in finding that the
first defendant was rash and negligent in driving the jeep car resulting in the
accident and the ultimate death of Jagdishlal, it is no more necessary to advert to
all the questions raised by way of answer to the suit, except the one on which the
appeal has been pressed before us.
ISSUES RAISED :
Whether the state earlier to the commencement of Constitution, Art. 300, be liable
in similar situation akin to the state of Rajasthan.
Whether the rash and negligent driving of jeep car, which led to the claim in the
suit was being maintained in exercise of sovereign power and not as part of any
commercial activity of the State.
RULES APPLICABLE :
Article 133(1), Constitution of India, 1950
Article 294, Constitution of India, 1950
Article 295 Constitution of India, 1950
Article 300 Constitution of India, 1950
Section 2(1), Crown Proceedings Act, 1947
ANALYSIS :
In the instant case, the Honble Supreme Court has decided to hear the following
case in appeal, in furtherance of the certificate given by the Honble Rajasthan High
Court under Article 133, as the question of interpretation of Article 300 was
involved, which was a substantial matter of law.
Whether the state earlier to the commencement of Constitution, Art. 300, be liable
in similar situation akin to the state of Rajasthan.
The Supreme Court firstly recognised that the government could be sued.
The issue that arose for consideration was the extent of the vicarious liability of
Government for the tortious acts of its employees, acting in the course of their
employment.
The general rule of common law, guaranteeing sovereign immunity is that the
State cannot be liable for the tortious acts of its servants, when such servants
are engaged on an activity connected with the affairs of the State.

However, with changing concept of the state and our constitution establishing a
welfare state, the functions are not confined only to maintaining law and order,
but extend to engaging in all activities including industry, public transport, state
trading, to name only a few of them. The possible ramifications arising out these
acts are wide and it is not possible to give immunity to all such acts of state.
Thus, in the given scenario, it is imperative to understand the difference in the
sovereign and non- sovereign functions of the state. Only, for the acts covered
under the sovereign functions, the state can claim immunity.
The Supreme Court upheld the view of the High Court. The Supreme Court
upheld that the state must be equally liable as other companies for the acts of
its employees. The concept of sovereign immunity and the rule of King can do
no Wrong are no longer applicable.
Our constitution envisages a Republican form of Government, and one of the
objectives is to establish a Socialistic State with its varied industrial and other
activities, employing a large army of servants, there is no justification, in
principle, or in public interest, that the State should not be held liable vicariously
for the tortious act of its servant.
Whether the rash and negligent driving of jeep car, which led to the claim in the
suit was being maintained in exercise of sovereign power and not as part of any
commercial activity of the State.
The next question that was to be answered was whether the act of driving the
car back from the repair shop was an exercise of sovereign powers of the state.
As the act is not in furtherance of the sovereign functions, the immunity cannot
be claimed.
In deciding the instant case, much reliance was placed on the case of Peninsular
& Oriental Steam Navigation Company[3]. In that case, the plaintiff filed an
action under Section 55 of Act IX of 1850 to recover from the Company Rs 350
being the damages sustained by reason of injuries caused to a horse of the
plaintiff through the negligence of certain servants of the Company. Sir Barnes
Peacock, holding the Company liable, said :
There is great and clear distinction between acts done in the exercise of what
are usually termed as sovereign powers, and acts done in the conduct of
undertaking which might be carried on by private individuals without having
such power delegated to them. When an act is done or contract is entered
into, in the exercise of powers usually called sovereign powers, by which we
mean powers which cannot be lawfully exercised except by a sovereign, or a
private individual delegated by a sovereign to exercise them, no action will
lie.
The Court has deliberately departed from the Common Law rule that a civil
servant cannot maintain a suit against the Crown. It would thus, not be
appropriate for the State in these circumstances to continue to raise the plea of

sovereign power or of sovereign immunity to escape its liability in tort.

The principles of common law have been brought into our country for the
evolution of tort. When the rule of immunity has been done away with in the
common law itself, the purpose of still having it in our country does not sound
logical.
Further, after the enforcement of the Constitution, it becomes the supreme law
of the land and the Constitution does not recognize any such immunity, rather it
provides for the contrary.
Further, the article itself has provided for the right of Parliament or the
Legislature of a State to enact such law as it may think fit and proper in this
regard. The legislature in its wisdom has not exercised its right and enacted any
provision pertaining to the immunity of the government for the acts of its
officials or servants.
Thus, so long as the Legislature has not expressed its intention to the contrary,
it must be held that the law is what it has been ever since the days of the East
India Company.
JUDGEMENT AND CONCLUSION :
The act of the driver was not an act in the exercise of a sovereign function.
The Court said that the employment of driver of a jeep car for the use of a civil
servant was an activity which was not connected in any manner with the sovereign
power of the State at all.
In this case, court rejected the plea of immunity of the State and held that the
State was liable for the tortious act of the driver like any other employer.
Conclusion :
The Court has very aptly decided the instant case and formed a strong precedent
for many more cases that arose with respect to the vicarious liability of the state
for the acts of its employers.
11) Public Trust Doctrine : M. C. Mehta v. Kamal Nath (1997) 1 SCC 388
Discuss in detail the "Polluter pays principle" with relevant cases. (May-2016)
Explain in detail and state legal principle laid down in it : M.C. Mehta V, Kamal
Nath. (Apr-2013)
What is Public Trust Doctrine 2 Discuss the doctrine taking into consideration the
case of M. C. Mehta V/s. Kamal Nath. (Mar2015)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/M._C._Mehta_v._Kamal_Nath
http://www.ielrc.org/content/e0007.pdf
http://www.ielrc.org/content/e9615.pdf
What is Public Trust Doctrine?
M. C. Mehta v. Kamal Nath (1997) 1 SCC 388 :
Intro :
M. C. Mehta v. Kamal Nath was a landmark case in Indian environmental law. In
the case, the Supreme Court of India held that the public trust doctrine applied
in India
Facts of the case : Supreme Court took notice of a news article appearing
in the Indian Express dated 25-Feb-1996. The article under the caption -
"Kamal Nath dares the mighty Beas to keep his dreams afloat" alleged following :
The family of Indian politician Kamal Nath has direct links with a private
company, Span Motels Private Limited, which owns a resort - Span Resorts - for
tourists in Kullu-Manali Valley. The company had lease-deed for 12 bighas of
land on the banks of river Beas.
Later the Span Resorts floated another ambitious venture Span Club. And that
the club represented Kamal Nath'a dream of having a house on the bank of the
Beas in the shadow of the snow-chapped Zanskar Range.
1990 : The club was built after encroaching upon 27-12 bighas of land, including
substantial forest land, in 1990.
1993 : The Government of India, Ministry of Environment and Forests by the
letter dated 24.11.1993, addressed to the Secretary, Forest, Government of
Himachal Pradesh, Shimla
conveyed its prior approval in terms of Section 2 of the Forest (Conservation)
Act, 1980 for leasing to the Motel 27 bighas and 12 bighas of forest land
adjoining to the land already on lease with the Motel.
1994 : The land was later regularised and leased out to the company on April
11, 1994.
The regularisation was done when Nath was Minister of Environment and
Forests.
1994 : The swollen river changed its course and engulfed the Span Club and the
adjoining lawns, washing it away.
Thereafter, for almost five months, the Span Resorts management
had been moving bulldozers and earth movers to turn the course of the
Beas for a second time by blocking the flow of the river just 500 meters
upstream.
thereby creating a new channel to divert the river to at least one kilometer
downstream.

A security ring had been thrown around these activities for keeping it private.
1995 : However, with the Beas river eating into the mountains, there were
landslides and during Sep-1995 these caused floods in the Beas resulting in
destruction of property estimated to be worth Rs. 105 crores.
District Administration pleaded helplessness because rivers and forest land are
not under their jurisdiction.
Only the Kullu Conservator of Forests or the District Forest Officer can
intervene in this case.
An expert committee formed to assess the situation of the area arrived at the
following conclusion,
The river is presently in a highly unstable regime after the extraordinary
floods of 1995, and it is difficult to predict its behaviour if another high flood
occur in the near future.
A long-term planning for flood control in the Kullu Valley needs to be taken up
immediately with the advice of an organisation having expertise in the field,
and permanent measures shall be taken to protect the area so that recurrence
of such a heavy flood is mitigated permanently.
Arguments for the defendants :
Whatever construction activity was done by the motel on the land under its
possession and on the area around, if any, was done with a view to protect the
lease-hold land from floods.
Divisional Forest Officer permitted the motel to carry out the necessary works
subject to the conditions that the department would not be liable to pay any
amount incurred for the said purpose by the motel.
However, it could be easily ascertained from the facts that the Motel had made
various constructions on the surrounding area and on the banks of the river.
Hearing at SC : Following emerged during the course of hearing,
The forest lands which have been given on lease to the Motel by the State
Governments are situated at the bank of the river Beas.
Beas is a young and dynamic river. The river is fast-flowing, carrying large
boulders, at the time of flood.
However, when water velocity is not sufficient to carry the boulders, those are
deposited in the channel often blocking the flow of water.
Under such circumstances the river stream changes its course, remaining within
the valley but swinging from one bank to the other.
The right bank of the river Beas where the motel is located mostly comes under
forest,
the left bank consists of plateaus, having steep - bank facing the river, where
fruit orchards and cereal cultivation are predominant.

The area being ecologically fragile and full of scenic beauty should not have been
permitted to be converted into private ownership and for commercial gains.
Final Orders of the Court :
The public trust doctrine, as discussed by the Court in its judgment was a part of
the law of the land.
Under the Public Trust Doctrine,
the prior approval granted by the Government of India, Ministry of
Environment and Forest and the lease-deed dated 11.04.1994 in favour of the
Motel were quashed.
the lease granted to the Motel by the said lease-deed in respect of 27 bighas
and 12 bighas of area, is cancelled and set aside.
the Himachal Pradesh Government shall take over the area and restore it to
its original-natural conditions.
Under the Polluter Pays Doctrine,
court ordered that the pollution caused by various constructions made by the
Motel in the riverbed and on the banks of the river Beas have to be removed
and reversed
court ordered that the motel shall pay compensation by way of cost for the
restitution of the environment and ecology of the area.
the court also asked the motel to show cause as to why pollution fine in
addition be not imposed on the motel.
Reasoning for the SC order :
Hon'able Supreme Court applied (i) Doctrine of Public Trust and (ii) Polluter Pays
Doctrine,
with regard to the protection and preservation of natural resources.
The court ruled that there is no justifiable reason to rule out the application of
BOTH these doctrines where ever any activities pose threat to any eco systems
in India.
12) Polluter Pays Principle and Public Trust Doctrine : (i) M. C. Mehta v. Union of
India (1996)4 SCC 750, (ii) Council for Enviro Legal Action v. Union of India
(1996)5 SCC 281
Discuss in detail : M. C.Mehta v. Union of India (1996)4 SCC 750 Council for Enviro
Legal Action v. Union of India (1996)5 SCC 281
ANSWER :

Refer :

What is Polluter Pays Principle?
What is Public Trust Doctrine?
(i) M. C.Mehta v. Union of India (1996) 4 SCC 750 :
Refer :
https://indiankanoon.org/doc/1487930/
http://legalsutra.com/1425/examining-the-roles-of-mc-mehta-sundarlal-
bahuguna-almitra-patel-and-medha-patkar-as-environmental-activists/
Note :
Citation is 1996 SCC (4) 750
This case is different from 1986 Sri Ram Food gas leakage discussed at
https://en.wikipedia.org/wiki/M._C._Mehta_v._Union_of_India
In the 1996 case of M. C.Mehta v. Union of India, SC identified 168 number of
industries to be hazardous and ordered them to be moved out of Delhi.
Judgment at https://indiankanoon.org/doc/1487930/
A large number of hazardous industries had become a serious health hazard and
posed danger to the life and health to a large population living in Delhi. Despite
their ban, these industries continued to operate in Delhi in violation of the
Master Plan and Environmental laws. Seeing the defiant attitude of the industries
a In this case, in 1996 the apex Court ordered the closure of major polluting and
hazardous industries from Delhi and their relocation in the neighbouring states.
More than 1300 major polluting and hazardous industries were closed down in
Delhi.
Industries numbering more than 90,000 operating in nonconforming areas in
Delhi had also been asked to close down their operations and shift them to
conforming areas. Hundreds of industries operating in conformity with the
master plan in 28 industrial areas were ordered to set up Common Effluent
Treatment Plants at 15 places to control pollution.
<work on this>
(ii) Council for Enviro Legal Action v. Union of India (1996)5 SCC 281 :
Refer :
https://indiankanoon.org/doc/998721/
http://kalpavriksh.org/images/EnvironmentandDevelopment/CRZ/critique_czm_
epw1_final.pdf
http://legalsutra.com/1425/examining-the-roles-of-mc-mehta-sundarlal-

bahuguna-almitra-patel-and-medha-patkar-as-environmental-activists/
The main grievance in this petition is that a Notification dated 19.2.1991 declaring
coastal stretches as Coastal Regulation Zones (hereinafter referred to as 'the
Regulation Zones which regulates the activities in the said zones has not been
implemented or enforced. This has led to continued degradation of ecology in the
said coastal areas. There is also a challenge to the validity of the Notification dated
18.8.1994 whereby the first Notification dated 19.2.1991 has been amended,
resulting in further relaxations of the provisions of 1991 Notification and such
relation, it is alleged, will help in defeating the intent of the main Notification itself
Despite Coastal Zone Regulation Notification of February 1991, none of the coastal
states had formulated coastal zone management plan, with the result that
haphazard construction and industrial activity was being permitted anywhere in the
coast leading to large scale damage to coastal ecology and loss of livelihood to
lakhs of fishermen and other indigenous communities dependent on marine
resources. A writ petition was filed on behalf of Indian Council for Enviro- Legal
Action (ICELA) and the Supreme Court delivered a landmark Judgement banning
industrial/ construction activity within 500 mtrs of the High Tide Line and set a time
limit for the coastal states to formulate coastal management plans.
<work on this>
Interesting, off the topic, comments on NGOs, activist M C Mehta, et al :

Found at ---> http://legalsutra.com/1425/examining-the-roles-of-mc-mehta-
sundarlal-bahuguna-almitra-patel-and-medha-patkar-as-environmental-activists/
Keywords NGO, MC Mehta, Sundarlal Bahuguna, Almitra Patel and Medha
Patkar as Environmental Activists
M.C Mehta is also credited with forming the Indian Council for Enviro-Legal
Action in conjunction with another environmental Crusader Justice Kuldip
Singh. There is an interesting relationship here as Justice Kuldip Singh is a also
the Judge before whom M.C Mehta has argued and won some of his most high
profile cases. There is much conjecture on their relationship as they are said to
be old friends from their college days. The Researcher however found no
evidence to suggest this.
M.C Mehta has indeed been tremendously successful in bringing about Public
Interest litigations on environmental issues. The Researcher attributes three
reasons for his success. Firstly, he chooses his judges well most of his cases
have been filed before judges like Justice Kuldip Singh, Justice Krishna Iyer and
Justice Bhagwati who are known to be activist and environment friendly.
Secondly, the way he goes about the his arguing his cases is to get the Bench
interested in the issue so that they begin almost inquisitorial proceedings against
the opposing party. Thirdly his timing for the filing of his cases is perfect when
there is much media attention and public outcry about an issue[11]. Take two

cases in point The Taj Mahal Case and the Shriram Gas Leak Case. The former
was filed following hundreds of articles in the media concerning the deterioration
of the Taj Mahal. The latter was actually filed before the leak took place but did
not come up for hearing until after the leak had happened.
Undoubtedly M.C Mehta is both shrewd and pragmatic in his approach. He
however, is interested in a host of issues and has not given himself completely
to any single environmental issue. It is an open question however as to whether
he only picks battles he can win. He has yet to approach probably the biggest
environmental as well as human rights problem on the Indian scene in which
other crusaders have been only marginally successful that of big dams.
13) Principle of Sustainable Development and Precautionary Principle : Vellore

Citizens Welfare Forum v. Union of India (1996)5 SCC 647
ANSWER :
Refer :
http://legalsutra.com/tag/vellore-citizens-welfare-forum-v-union-of-india/
What is Sustainable Development ?
<Read this from study notes of 304E Public Interest Lawyering (PIL)>
What is Polluter Pays Principle ?
What is Precautionary Principle ?
An NGO by the name of Vellore Citizens Welfare Forum filed a petition a Public
Interest Litigation (PIL) under Article 32 of the Constitution of India which
guarantees the Right to move the Supreme Court by appropriate proceedings for
the enforcement of rights conferred by the constitution.
The petition was directed against the pollution which was caused due to discharge
of enormous amounts of untreated effluents by tanneries (tannery is a place where
animal skins are tanned and made into leather) and other industries in the state of
Tamil Nadu, which led to the main source of potable water for consumption and
irrigation, the Palar river, being polluted, and which consequently led to non-
availability of clean water.
A report submitted to the Supreme Court noted that
there is non-compliance by the tanneries regarding the Government order to put
up Common Effluent Treatment Plants (C.E.T.Ps) for the proper disposal of
effluents.

176 chemicals were found in the tannery effluents

and that nearly 35,000 hectares of land around the tannery belt and especially in
some 59 villages in the districts of Vellore, Thiruvanthapur and Ranipat had been
made unfit for cultivation.
It was found that 350 out of 467 wells in the area were unfit for consumption or
irrigation.
Issues before the court : The main issues before the court were :
To what extent should environmental safety be compromised for economic
development?
Has there been a violation of the Right to Wholesome Environment, guaranteed
under Article 21 of the constitution?
What is the liability of the industrialists or polluter towards the environment and
the people affected by pollution?
Are the principles such as polluter pays and precautionary principle, which are
features implicit in Sustainable Development, within the ambit of Indian Law?
Note : Prior to Vellore Citizens Welfare Forum vs Union of India (1996)5 SCC 647,
the liability of restoring the damage caused by industrialisation was with the
government,
However, in the light of new interpretation (in this case) of the Polluter Pays
Principle,
the Governments liability to bear the costs was shifted to the polluter, along
with the liability to compensate the injured party.
Summary of the order : The bench comprised of three judges, namely Justice
Kuldip Singh, Justice Faizan Uddin and Justice K. Venkataswami. The salient points of
the order by the Supreme Court are:
Sustainable Development :
SC directed that,
the Central Government shall set up an authority under the Environmental
Protection Act,
to deal with the situation created by the tanneries and other polluting
industries in the state of Tamil Nadu,
and to implement the precautionary principle and the polluter pays
principle,
Polluter Pays Principle :
SC directed that, an authority under the Environmental Protection Act shall
identify the loss to the environment and to the individuals/ families who
suffered because of the pollution,
and assess the amount of compensation to be recovered from the polluters

both for reversing the ecology and for payment to individuals.

Precautionary Principle :
The Supreme Court for the first time introduced the principle of the
precautionary principle in Indian jurisprudence, and laid down the salient
features of the precautionary principle in Indian law.
The SC ordered,
closure of all tanneries which failed to comply with the Government order to
set up individual or common Effluent Treatment Plants, within a given time
frame.
and that highly polluting industries were henceforth not allowed in the
prohibited areas.
The SC also held that :
the State Government and the statutory bodies must anticipate, prevent and
attack the causes of environmental degradation,
scientific uncertainty should not be used as a reason for postponing measures
to prevent environmental degradation, and
The Onus of proof is on the actor, to show that his actions are
environmentally benign.
The Reasoning :
the traditional concept that development and ecology are contradictory to each
other was no longer accepted,
SC observed,
and that, salient principles of Sustainable Development, as culled-out from
Brundtland Report and other international documents, are Inter-Generational
Equity,
and that polluter pays principle and precautionary principle are essential
features of the concept of sustainable development,
and that It is almost accepted proposition of law that
the rules of Customary International Law which are not contrary to
the municipal law
shall be deemed to have been incorporated in the domestic law and
shall be followed by the Courts of Law
SC held,
that, We have no hesitation in holding that "Sustainable Development (as a
balancing concept between ecology and development) has been accepted as a
part of the Customary International Law, even though its salient feature have
yet to be finalised by the International Law Jurists,
and that the precautionary principle and the polluter pays principle are part of
the environmental law of the country.

In support of its decision the SC referred to cases (i) Gramophone Company of

India Ltd vs Birendra Bahadur Pandey and Others and (ii) Jolly George Varghese
and Another v Bank of Cochin.
wherein it was held that the rules and requirements of international treaties, to
which India is a signatory and which are not contrary to the domestic laws, may
be accommodated into municipal law even without express legislative consent.
Note : Subsequently, in 2011 in the case of Indian Council for Enviro-Legal Action and
Others vs Union of India & ors, (Bichhri case, AIR 1996 SC 1446) also the polluter
pays principle had been held to be a sound principle by the Supreme Court where it
was held,
that the polluter is absolutely liable towards any harm caused to another due to an
activity which is hazardous or inherently dangerous,
and that the polluter must make good the loss caused to any person affected by
this activity, irrespective of whether that the polluter took reasonable care and
precautions while engaging in the activity.
14) Doctrine of Ultra Vires : Ashbury's Railway Company V. Riche

ANSWER :
Refer :
https://en.wikipedia.org/wiki/Ashbury_Rly_Carriage_and_Iron_Co_Ltd_v_Riche
better ---> https://www.uniassignment.com/essay-samples/law/ashbury-railway-
carriage-and-iron-law-company-business-partnership-essay.php
INTRODUCTION :
This particular case is related to the objects clause of the company, hence its
related to Company law.
FACTS OF THE CASE :
This particular case draws its conflicts as stated in the clause 3 and clause 4 as
stated in the companys memorandum.
Incorporated under the Companies Act 1862, the Ashbury Railway Carriage and
Iron Company Ltds memorandum,
clause 3, said its objects were "to make and sell, or lend on hire, railway-
carriages"
clause 4 said activities beyond needed a special resolution.
But the company agreed to give Riche and his brother a loan to build a railway in
Belgium.
Later, the company refused the agreement.

Riche sued, and the company pleaded the companys action was ultra vires.
QUESTION RAISED :
The basic question raised this particular case is that whether the contract between
these two is ultra-vires or not?
JUDGEMENT by House of Lords :
It held that if a company pursues objects beyond the scope of the memorandum of
association, the company's actions are ultra vires and void.
Lord Cairns LC said,
It was the intention of the legislature, not implied, but actually expressed, that
the corporations, should not enter, having regard to this memorandum of
association, into a contract of this description. The contract in my judgment
could not have been ratified by the unanimous assent of the whole corporation.
In the beginning itself, under the memorandum of the company didnt permit the
company into a contract relating to construction of railway. But still the company
went forward with it so the contract became null and void, as the memorandum
didnt specify this power.
The shareholders with the desire to make contract cannot authorize the director to
enter into the contract as it was ultra-vires. So the shareholders even cannot ratify
the ultra-vires contract.
Whatever business the company does must be specified in the memorandum.
THEORY ASSOCIATED :
This case is associated with the application of doctrine of ultra-vires.
As per this concept the powers or rights which are not mentioned in the
memorandum of the company shall be null and void if the company goes beyond
the power of the memorandum.
Ultra-vires means beyond the actual power authorized to the entity i.e. invalid
excess of authority.
15) Doctrine of Indoor Management : Royal British Bank v. Turquand

ANSWER :
Refer :
https://en.wikipedia.org/wiki/Royal_British_Bank_v_Turquand
Facts of the case :
Royal British Bank v Turquand (1856) 6 E&B 327 is a UK company law case that

held people transacting with companies are entitled to assume that internal
company rules are complied with, even if they are not. This "indoor management
rule" or the "Rule in Turquand's Case" is applicable in most of the common law
world. It originally mitigated the harshness of the constructive notice doctrine
Mr Turquand was the official manager (liquidator) of the insolvent Cameron's
Coalbrook Steam, Coal and Swansea and Loughor Railway Company. It was
incorporated under the Joint Stock Companies Act 1844.
Dispute :
The company had given a bond for 2,000 to the Royal British Bank, which secured
the company's drawings on its current account. The bond was under the company's
seal, signed by two directors and the secretary. When the company was sued, it
alleged that under its registered deed of settlement (the articles of association),
directors only had power to borrow up to an amount authorised by a company
resolution. A resolution had been passed but not specifying how much the directors
could borrow.
Judgment :
Sir John Jervis CJ, for the Court of Exchequer Chamber ruled that the bond was
valid, so the Royal British Bank could enforce the terms. He said the bank was
deemed to be aware that the directors could borrow only up to the amount
resolutions allowed. Articles of association were registered with Companies House,
so there was constructive notice. But the bank could not be deemed to know which
ordinary resolutions passed, because these were not registrable.
The bond was valid because there was no requirement to look into the company's
internal workings. This is the indoor management rule, that the company's indoor
affairs are the company's problem.
Doctrine of indoor management :
When there are persons conducting the affairs of the company in a manner which
appears to be perfectly consonant with the articles of association, those so dealing
with them externally are not to be affected by irregularities which may take place
in the internal management of the company.
Each outsider contracting with a company in good faith is entitled to assume that
the internal requirements and procedures have been complied with. The company
will consequently be bound by the contract even if the internal requirements and
procedures have not been complied with.
The exceptions here are: if the outsider was aware of the fact that the internal
requirements and procedures have not been complied with (acted in bad faith);
or if the circumstances under which the contract was concluded on behalf of the
company were suspicious.
Sometimes it is possible for an outsider to ascertain whether an internal
requirement or procedure has been complied with. If it is possible to ascertain
this fact from the company's public documents, the doctrine of disclosure and

the doctrine of constructive notice will apply and not this doctrine, the Turquand
rule.
example : in Mahoney, where the company's articles provided that cheques should
be signed by any two of the three named directors and by the secretary, the fact
that the directors who had signed the cheques had never been properly appointed
was held to be a matter of internal management, and the third parties who
received those cheques were entitled to presume that the directors had been
properly appointed, and cash the cheques.
The rule was formulated to keep an outsider's duty to inquire into the affairs of a
company within reasonable bounds, but if the compliance or non-compliance with
an internal requirement can be ascertained from the company's public documents,
the doctrine of disclosure and the doctrine of constructive notice will apply.
16) Principle of Lifting the Corporate veil : Soloman v. Soloman's case

Explain along with legal principle involved therein : Solomon -vs- Solomon & Co Ltd.
(May-2016)
ANSWER :
Refer :
better ---> https://www.uniassignment.com/essay-samples/law/ashbury-railway-
carriage-and-iron-law-company-business-partnership-essay.php
INTRODUCTION :
Salomon Vs A. Salomon & Co. Ltd. is a milestone company law case. The main
concept behind this act is to uphold the corporate personality, as put in place by
the Companies Act, 1862. According to this law, creditors cannot sue the
shareholders of the insolvent company to pay the outstanding debt.
FACTS OF THE CASE :
Mr. Aron Salomon manufactured leather shoes and boots in a large establishment.
His 30 years business would have fetched him 10,000. On insistence of family
members he converted his business into a limited company, with wife and his 5
childrens as subscribers and 2 children as directors. Mr. Salomon kept 20,001
shares out of 20,007 shares with himself. The capital investment in the business
amounted to 39,000. Courts claim of the company being extravagant is as
follows:
Purchase money for business 20,000
Debentures issued secured over the company assets 10,000
Business debt 1,000
No sooner the company was incorporated than there were a series of strikes in the

company which led in splitting up of Salomons main customers to avoid the risk of
being crippled by the strike.
The unsold stocks in warehouse forced them in cancellation of debentures and as
the business needed more money they approached Mr. Edmund Broderip.
On failure of the business and Mr. Edmund Broderip not receiving his interest he
sued Mr. Salomon. After which the company was liquidated and Broderip was
repaid 5000.
QUESTION RAISED :
Who is to be paid first, should the employees or utility bills be paid first or should it
be the secured creditors ?
JUDGEMENT :
Judgment of lower court :
The lower court agreed with the trade creditors allegations and ruled in favor of
the creditors and went against the Salomon.
Judgment of higher court :
The higher court i.e. is the house of the lords held that the company is distinct
for its owner and it has separate legal entity once it is registered and comes into
existence it has no minority period neither it has any incapacity.
They held that shareholders and the company are two different entities and the
shareholders cannot be held responsible for the acts of the company even when
the shareholders hold virtually the majority of the shares.
THEORY ASSOCIATED:
This case is associated with Companies Act, 1956. In this the concept of lifting of
corporate veil is applied. As per this concept, the owner and the company are two
distinct entities and the working of the company cannot be forced on the individual
i.e. the owner.
So this case overall stresses on the distinction between the owner of the business
and the business itself are two different entities.
17) The Right of the Majority Rule (Company Law) : Foss v. Harbottle (1843) 67
ER 189
Discuss the principle estabilished in the case of Fars v/s. Harbottle. (Apr-2014)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Foss_v_Harbottle
Intro :

Foss v Harbottle (1843) 67 ER 189 is a leading English precedent in corporate law.

In any action in which a wrong is alleged to have been done to a company, the
proper claimant is the company itself. This is known as "the rule in Foss v
Harbottle", and the several important exceptions that have been developed are
often described as "exceptions to the rule in Foss v Harbottle".
Amongst these is the 'derivative action', which allows a minority shareholder to
bring a claim on behalf of the company. This applies in situations of 'wrongdoer
control' and is, in reality, the only true exception to the rule.
The rule in Foss v Harbottle is best seen as the starting point for minority
shareholder remedies
Facts of the case :
Richard Foss and Edward Starkie Turton were two minority shareholders in the
"Victoria Park Company".
The company had been set up in September 1835 to buy 180 acres of land near
Manchester and, according to the report,
"enclosing and planting the same in an ornamental and park-like manner, and
erecting houses thereon with attached gardens and pleasure-grounds, and
selling, letting or otherwise disposing thereof".
Subsequently, an Act of Parliament incorporated the company.
The claimants alleged that property of the company had been misapplied and
wasted and various mortgages were given improperly over the company's property.
They asked that the guilty parties be held accountable to the company and that a
receiver be appointed.
The defendants were the five company directors (Thomas Harbottle, and others).
Judgment :
The court dismissed the claim and held that when a company is wronged by its
directors it is only the company that has standing to sue.
The court established two rules.
Firstly, the "proper plaintiff rule" is that a wrong done to the company may be
vindicated by the company alone, a reiteration of the Salomon principle.
Secondly, the "majority rule principle" states that if the alleged wrong can be
confirmed or ratified by a simple majority of members in a general meeting,
then the court will not interfere.
Developments :
The rule was later extended to cover cases where what is complained of is some
internal irregularity in the operation of the company. However, the internal
irregularity must be capable of being confirmed/sanctioned by the majority.
The rule in Foss v Harbottle has another important implication.
A shareholder cannot generally bring a claim to recover any reflective loss - a

diminution in the value of his or her shares in circumstances where the

diminution arises because the company has suffered an actionable loss. The
proper course is for the company to bring the action and recoup the loss with the
consequence that the value of the shares will be restored.
Need for exceptions :
Because Foss v Harbottle leaves the minority in an unprotected position, exceptions
have arisen and statutory provisions have come into being which provide some
protection for the minority.
Exceptions to the rule : There are certain exceptions to the rule in Foss v. Harbottle,
where litigation will be allowed. The following exceptions protect basic minority rights,
which are necessary to protect regardless of the majority's vote.
1. Ultra vires and illegality : The directors of a company, or a shareholding majority
may not use their control of the company to paper over actions which would be
ultra vires the company, or illegal.
2. Actions requiring a special majority : If some special voting procedure would be
necessary under the company's constitution or under the Companies Act, it would
defeat both if that could be sidestepped by ordinary resolutions of a simple
majority, and no redress for aggrieved minorities to be allowed.
3. "Frauds on the minority" : fraud in the context of derivative action means abuse
of power whereby the directors or majority, who are in control of the company,
secure a benefit at the expense of the company
18) Principle of Contributory Negligence : Donogue v. Stevenson (1932) AC. 562

Discuss in detail the Principle of Contributory Negligence in the light decisions of the
Supreme Court (May-2016)
ANSWER :
Refer :
http://casebrief.wikia.com/wiki/Donoghue_v_Stevenson
Facts of the case :
On the 26 August, 1928, May Donoghue and a friend were at a caf in Glasgow
(Scotland). The cafe purchased the product from a distributor that purchased it
from Stevenson.
Donoghue's companion ordered and paid for her drink.
The ginger beer came in a Dark bottle, and the contents were not visible from the
outside.
Donoghue drank some of the contents and her friend lifted the bottle to pour the
remainder of the ginger beer into the tumbler. The remains of a snail in a state of

decomposition dropped out of the bottle into the tumbler.

Donoghue later complained of stomach pain and her doctor diagnosed her as
having gastroenteritis and being in a state of severe shock.
Donoghue sued the David Stevenson, the manufacturer of the drink, for
negligence.
She was unsuccessful at trial and appealed the decision to the House of lords.
Finally, her claim was successful.
Issue :
Does the defendant owe a duty of care to the plaintiff being as there is no contract?
Decision :
Appeal allowed.
The majority stated that the manufacturer does owe a duty of care to the end
consumer, for the purpose of their product is to be consumed, not to be sold to a
distributor.
The absence of a contract between two parties does not mean that a duty is not
owed
Overall, the court found that in the cases like this where the manufacturers are
manufacturing goods for the eventual consumption of consumers, they do have a
duty to take reasonable care to ensure that their products are safe for
consumption.
Ratio :
Manufacturers owe the final consumer of their product a duty of care (at least in
the instance where the goods cannot be inspected between manufacturing and
consumption). There need not be a contractual relationship, or privity, in order for
the final consumer to sue in negligence
19) Reps Ipsa Loquitor : Gulli V. Swan

ANSWER :
Refer :
https://sites.oxy.edu/whitney/classes/ec319/readings/cases/tort/guille_v_swan_bri
ef.htm
Doctrine of res ipsa loquitor : Doctrine of res ipsa loquitor is a special case of
negligence where in plaintiff is not required to prove negligence on the part of
defendant for the reason that things speak for itself.
A tort of negligence is committed when a person is injured due to the
irresponsibility of another. The damage so caused must be an immediate cause of

the act of negligence and not a remote cause.

Essential elements of negligence are as follows :
Duty to take care
Beach of such a duty
Legal damage caused to the complainant due to a breach of duty
Reasonable foresee-ability is the basic principle on which this tort of negligence is
based.
When a person before or at the time of committing an act can reasonably foresee
that his act is likely to cause a damage to the other person and he still continues to
do it, he is said to have committed a tort of negligence
In the tort of negligence, the burden of proof falls on the plaintiff that he has
sustained legal damage due to a breach of duty on the part of the defendant.
However, in certain cases the plaintiff doesnt have to prove negligence
on the defendants part. Such cases fall under the principle of res ipsa loquitor
which means things speak for itself where it is evident from the facts of the
case that there has been negligence on the side of the defendant.
Example: A doctor while performing an operation leaves a pair of scissor inside
the stomach of the patient.
Case name : Guille (d) v. Swan (p)
Court : SUPREME COURT OF JUDICATURE OF NEW YORK
Plaintiff: Swan - gardern owner
Defendant: Guille ballooner
Facts of the case:
Guille ascended in a balloon in the vicinity of Swan's garden, and descended into
Swans garden.
When Guille descended his body was hanging out of the car of the balloon in a very
perilous situation, and he called to a person at work in Swan's field, to help him, in
a voice audible to the pursuing crowd.
After the balloon descended, it dragged along over potatoes and radishes, about
thirty feet, when Guille was taken out.
The balloon was carried to a barn at the farther end of the premises. When the
balloon descended, more than two hundred persons broke into Swan's garden
through the fences, and came on his premises; beating down his vegetables and
flowers.
The damage done by Guille, with his balloon, was about $ 15, but the crowd did
much more. The plaintiff's damages, in all, amounted to $ 90.
Procedural history:
Swan sued Guille in the justices' court (in the City of N. Y.), in an action of

trespass, for entering his close, and treading down his roots and vegetables,
It was contended by Guille before the justice that Guille was answerable only for
the damage done by himself, and not for the damage done by the crowd.
The justice was of tile opinion, and so instructed the jury, that the defendant
was answerable for all the damages done to the plaintiff.
The jury, accordingly, found a verdict for him for $ 90, on which the judgment
was given, and for costs.
Thereafter, the cause was submitted to the court on the return, with the briefs of
the counsel, stating the points and authorities. Court opinion (including key issues
and arguments) : Held :
The intent with which an act is done, is by no means the test of the liability of a
party to an action of trespass.
If the act cause the immediate injury, whether it was intentional, or
unintentional, trespass is the proper action to redress the wrong.... Where an
immediate act is done by the co-operation, or the joint act of several
persons, they all may be sued jointly or severally; and any one of them
is liable for the injury done by all. <---- Principle
To render one man liable in trespass for the acts of others, it must appear,
either that they acted in concert, or that the act of the individual sought to be
charged, ordinarily and naturally, produced the acts of the others.
I will not say that ascending in a balloon is an unlawful act, for it is not so; but it
is certain that the aeronaut has no control over its motion horizontally; he is at
the sport of the winds, and is to descend when and how he can; his reaching the
earth is a matter of hazard.
He did descend on the premises of the plaintiff below, at a short distance from
the place where he ascended.
Now, if his descent, under such circumstances, would, ordinarily and naturally,
draw a crowd of people about him, either from curiosity, or for the purpose of
rescuing him from a perilous situation; all this he ought to have foreseen, and
must be responsible for.
Whether the crowd heard him call for help or not, is immaterial; he had put
himself in a situation to invite help, and they rushed forward, impelled, perhaps,
by the double motive of rendering aid, and gratifying a curiosity which he had
excited. ...
we must consider the situation in which he placed himself, voluntarily and
designedly, as equivalent to a direct request to the crowd to follow him.
Judgment of the justices' court affirmed.

20) Reps Ipsa Loquitor : Byrne v. Boadle (1863)2 HBE 722

ANSWER :
Refer :
https://en.wikipedia.org/wiki/Byrne_v_Boadle
Doctrine of res ipsa loquitor : Doctrine of res ipsa loquitor is a special case of
negligence where in plaintiff is not required to prove negligence on the part of
defendant for the reason that things speak for itself.
A tort of negligence is committed when a person is injured due to the
irresponsibility of another. The damage so caused must be an immediate cause of
the act of negligence and not a remote cause.
Essential elements of negligence are as follows :
Duty to take care
Beach of such a duty
Legal damage caused to the complainant due to a breach of duty
Reasonable foresee-ability is the basic principle on which this tort of negligence is
based.
When a person before or at the time of committing an act can reasonably foresee
that his act is likely to cause a damage to the other person and he still continues to
do it, he is said to have committed a tort of negligence
In the tort of negligence, the burden of proof falls on the plaintiff that he has
sustained legal damage due to a breach of duty on the part of the defendant.
However, in certain cases the plaintiff doesnt have to prove negligence
on the defendants part. Such cases fall under the principle of res ipsa loquitor
which means things speak for itself where it is evident from the facts of the
case that there has been negligence on the side of the defendant.
Example: A doctor while performing an operation leaves a pair of scissor inside
the stomach of the patient.
Case : Byrne v. Boadle :
Fact of the case :
This is an English tort law case that first applied the doctrine of res ipsa loquitur.
A barrel of flour fell from a second-story loft and hit the plaintiff on his head. Under
these conditions, the plaintiff could not provide direct evidence as to whether the
person responsible for the barrel had breached his duty of care.
Judgment :
Initially, in the lower court the case was non-suited through a direct verdict
because the plaintiff could provide no evidence.
Subsequently the appellate court concluded that under the conditions, the fact of

the accident itself provided sufficient circumstantial evidence to establish the

breach of a duty of care.
Judge Baron Pollock said the following :
I think it would be wrong to lay down as a rule that in no case can a
presumption of negligence arise from the fact of an accident. Suppose in this
case the barrel had rolled out of the warehouse and fallen on the plaintiff how
could he possibly ascertain from what cause it occurred? It is the duty of persons
who keep barrels in a warehouse to take care that they do not roll out, and I
think that such a case would, beyond all doubt, afford prima facie evidence of
negligence. A barrel could not roll out of a warehouse without some negligence,
and to say that a plaintiff who is injured by it must call witnesses from the
warehouse to prove negligence seems to me preposterous. If there are any facts
inconsistent with negligence, then it is for the defendant to prove them.
This principal is known as Res Ipsa Loquitor, things speak for itself.
21) Principle of Remoteness of Damages : Scott v. Shephard 96 Eng. Rep. 525

(K.B. 1773)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Scott_v_Shepherd
Commonly known as "the famous Squib Case," is an important English tort law case
on remoteness and the principle of novus actus interveniens as it related to the
division between trespass and case
Facts :
Shepherd tossed a squib (small firework that burns with a hissing sound
before exploding) into a crowded market in the town of Milborne Port in
Somerset, where it landed on the table of a gingerbread merchant named Yates.
Willis, a bystander, grabbed the squib and threw it across the market to protect
himself and the gingerbread.
Unfortunately, the squib landed in the goods of another merchant named Ryal. Ryal
immediately grabbed the squib and tossed it away, accidentally hitting Scott in the
face just as the squib exploded. The explosion put out one of Scott's eyes.
Judgment :
The majority held Shepherd was fully liable, because, said De Gray CJ,
"I do not consider [the intermediaries] as free agents in the present case, but
acting under a compulsive necessity for their own safety and self-preservation."
Nares J wrote the following.

I am of opinion that trespass would well lie in the present case. The natural and
probable consequence of the act done by the defendant was injury to somebody,
and, therefore, the act was illegal at common law.
The throwing of squibs has... been since made a nuisance. Being, therefore,
unlawful, the defendant was liable to answer for the consequences, be the injury
mediate or immediate.
Evil intention is not necessary to constitute a trespass... The principle I go
on is what is laid down in Reynolds v. Clark... that if the act in the first instance
be unlawful, trespass will lie. Wherever, therefore, an act is unlawful at first,
trespass will lie for the consequences of it.
... I do not think it necessary, to maintain trespass, that the defendant should
personally touch the plaintiff; if he does it by a mean it is sufficient... He is the
person who, in the present case, gave the mischievous faculty to the
squib. That mischievous faculty remained in it until the explosion.
No new power of doing mischief was communicated to it by Willis or Ryal.
It is like the case of a mad ox turned loose in a crowd. The person who turns
him loose is answerable in trespass for whatever mischief he may do. The
intermediate acts of Willis and Ryal will not purge the original tort in the
defendant. But he who does the first wrong is answerable for all the
consequential damages...
De Grey CJ's judgment was as follows.
This case is one of those wherein the line drawn by the law between actions on
the case and actions of trespass is very nice and delicate.
Trespass is an injury accompanied with force, for which an action of trespass vi
et armis (trespass accompanied by force and violence) lies against the person
from whom it is received.
The question here is whether the injury received by the plaintiff arises from the
force of the original act of the defendant, or from a new force by a third person.
I agree with JUDGE BLACKSTONE as to the principles he has laid down but not in
his application of those principles to the present case.
The real question certainly does not turn on the lawfulness or unlawfulness of
the original act; for actions of trespass will lie for legal acts when they become
trespasses by accident, as in the cases cited of cutting thorns, lopping of a tree,
shooting at a mark, defending oneself by a stick which strikes another behind,
etc.
They may also not lie for the consequences even of illegal acts, as that of casting
a log in the highway, etc.
But the true question is whether the injury is the direct and immediate act of the
defendant; and I am of opinion that in this case it is. The throwing the squib was
an act unlawful and tending to frighten the bystanders. So far, mischief was

originally intended;
Whatever mischief, therefore, follows he is the author of it; Everyone who does
an unlawful act is considered as the doer of all that follows;
I look on all that was done subsequent to the original throwing as a continuation
of the first force and first act which will continue until the squib was spent by
bursting.
I think that any innocent person removing the danger from himself to another is
justifiable; the blame lights on the first thrower.
The new direction and new force flow out of the first force, and are not a new
trespass.
The immediate act need not be instantaneous, but that a chain of effects
connected together will be sufficient.
It has been urged that the intervention of a free agent will make a difference;
but I do not consider Willis and Ryal as free agents in the present case, but
acting under a compulsive necessity for their own safety and self-preservation.
On these reasons I concur with JUDGES GOULD and NARES, that the present
action is maintainable.
Dissent :
Blackstone J argued, reflecting the arcane distinctions between trespass on the
case and vi et armis, that there was no liability for indirect consequences.
I am of opinion that an action of trespass does not lie for the plaintiff against
the defendant on this Case. I take the settled distinction to be that, where the
injury is immediate, an action of trespass will lie;
22) Principle of Remoteness of Damages : Re Polimis v. Wagon Mound case 1961

AC 388 House of Lords
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Re_Polemis_%26_Furness,_Withy_%26_Co_Ltd
https://en.wikipedia.org/wiki/Overseas_Tankship_(UK)_Ltd_v_Morts_Dock_and_En
gineering_Co_Ltd
23) Death Sentence for Murder : Rarest of Rare Cases : Bachchan Singh v. State
of Punjab (AIR 1980 SC 898)

Death sentence should be given in rarest of rare cases specifying reasons thereof.
Discuss this principle taking into consideration various landmark decisions. (Apr-
2013)
Discuss the principle established in the case of Bachchan Singh vs. State of Punjab.
(Apr-2014)
Discuss the case along with the legal principles : Bachchan Singh Vls. State of
Punjab (AIR 1980 SC 898) (Mar2015)
ANSWER :
Refer :
http://lawyersupdate.co.in/LU/20/1147.asp
Facts :
Bachan Singh, the appellant in this case, was tried and convicted and sentenced by
the Sessions Judge to death under section 302, Indian Penal Code for the murders
of Desa Singh, Durga Bai and Veeran Bai.
The High Court confirmed his death sentence and dismissed his appeal.
He appealed to the Supreme Court by special leave. A Bench of the Supreme Court
consisting of Sarkaria and Kailasam, JJ. heard the appeal and directed the records
of the case to be submitted to the Hon'ble Chief Justice, for constituting a larger
Bench to resolve the question of constitutional validity of death penalty for murder
provided in section 302 of the Indian Penal Code, and the sentencing procedure
embodied in sub-section (3) of section 354 of the Cr.P.C., 1973.
Issue :
Constitutional validity of death penalty for murder.
Judgment :
Article 21 clearly brings out the implication that the Founding Fathers recognized
the right of the State to deprive a person of his life or personal liberty in
accordance with fair, just and reasonable procedure established by valid law.
There are several other indications also in the Constitution which show that the
Constitution makers were fully cognizant of the existence of death penalty for
murder and certain other offences in the Indian Penal Code.
Entries 1 and 2 in the Concurrent List of the Seventh Schedule specifically refer to
the Indian Penal Code and the CrPC as in force at the commencement of the
Constitution.
Article 72(1)(c) specifically invests the President with power to suspend, remit or
commute the sentence of any person convicted of any offence, and also "in all
cases where the sentence is a sentence of death".
Likewise, under Article 161, the Governor of a State has been given power to
suspend, remit or commute, inter alia, the sentence of death of any person
convicted of murder or other capital offence relating to a matter to which the

executive power of the State extends.

Article 134, in terms, gives a right of appeal to the Supreme Court to a person
who, on appeal, is sentenced to death by the High Court, after reversal of his
acquittal by the trial court.
Under the successive Criminal Procedure Codes which have been in force for about
100 years, a sentence of death is to be carried out by hanging.
In view of the aforesaid constitutional postulates, by no stretch of imagination can
it be said that death penalty under section 302, Indian Penal Code, either per se or
because of its execution by hanging, constitutes, an unreasonable, cruel or unusual
punishment.
By reason of the same constitutional postulates, it cannot be said that the framers
of the Constitution considered death sentence for murder or the prescribed
traditional mode of its execution as a degrading punishment which would defile
"the dignity of the individual" within the contemplation of the Preamble to the
Constitution.
On parity of reasoning, it cannot be said that death penalty for the offence
of murder violates the Basic Structure of the Constitution.
Sections 432 and 433 of the Code of 1973 continue sections 401 and 402 of the
Code of 1898, with necessary modifications which brings them in tune with Articles
72 and 161 of the Constitution.
Section 432 invests the "appropriate Government" as defined in sub-section (7) of
that section with power to suspend or remit sentences.
Section 433 confers on the appropriate Government power to commute sentence,
without the consent of the person sentenced. Under clause (a) of the section, the
appropriate Government may commute a sentence of death, for any other
punishment provided by the Indian Penal Code.
Section 354 (3) mandates the Court convicting a person for an offence punishable
with death or, in the alternative with imprisonment for life or imprisonment for a
term of years, not to impose the sentence of death on that person unless there
are "special reasons" to be recorded for such sentence. The expression "special
reasons" in the context of this provision, obviously means "exceptional reasons"
founded on the exceptionally grave circumstances of the particular case relating to
the crime as well as the criminal.
The only effect is that the application of those principles is now to be guided by the
paramount beacons of legislative policy discernible from sections 354(3) and
235(2) of the Code of 1973, namely :
(1) The extreme penalty can be inflicted only in gravest cases of extreme
culpability;
(2) In making choice of the sentence, in addition to the circumstances of the
offence, due regard must be paid to the circumstances of the offender also.

That is why, it is not desirable to consider the circumstances of the crime and the
circumstances of the criminal in two separate water-tight compartments.
In a sense, to kill is to be cruel and therefore all murders are cruel. But such
cruelty may vary in its degree of culpability. And it is only when the culpability
assumes the proportion of extreme depravity that "special reasons" can
legitimately be said to exist.
Judges should never be blood-thirsty. Hanging of murderers has never been too
good for them. Facts and figures albeit incomplete, furnished by the Union of India,
show that in the past Courts have inflicted the extreme penalty with extreme
infrequency. A fact which attests to the caution and compassion which they have
always brought to bear on the exercise of their sentencing discretion in so grave a
matter.
Held :
Section 302 of the Indian Penal Code insofar as it provides for the death sentence
as also section 354(3) of the Code of Criminal Procedure, 1973 is constitutionally
valid.
Exercise of discretion under section 354(3), Cr.P.C. should be in exceptional and
grave circumstances and imposition of death sentence should only be in rarest of
rare cases.
24) Contract with minors : Void ab initio : Case : Mohri Bibee V. Dharamdas
Ghosh (1903) 30 IA 114
Discuss the legal principle accepted by the Indian Courts about the status of contract
with minors. (Apr-2013)
Discuss : Mohribibi v/s Dharamdas Ghosh. (Apr-2014)
Discuss the Legal Principle : Contract with Minor is void ab initio. (Mar2015)
Contract with minors is void ab initio, discuss this statement with case law. (May-
2016)
ANSWER :
Refer :
https://www.lawctopus.com/academike/mohiri-bibee-minor/
http://lawyersupdate.co.in/LU/20/580.asp
Introduction :
This is one of those cases which throws light on the requirements to make a valid
contract. Minor agreement is void ab initio is emphasized here.
Facts of the case :

On July 20, 1895, the respondent, Dharmodas Ghose, executed a mortgage in

favour of Brahmo Dutt, a money-lender carrying on business at Calcutta and
elsewhere, to secure the repayment of Rs. 20,000 at 12 per cent, interest on some
houses belonging to the respondent.
The amount actually advanced is in dispute.
At that time the respondent Dhrmodas was an infant; and he did not attain twenty-
one until the month of September following.
Throughout the transaction Brahmo Dutt was absent from Calcutta, and the whole
business was carried through for him by his attorney, Kedar Nath Mitter, the
money being found by Dedraj, the local manager of Brahmo Dutt.
While considering the proposed advance, Kedar Nath received information that the
respondent was still a minor; and on July 15, 1895, the following letter was written
and sent to him by Bhupendra Nath Bose, an attorney :
Dear Sir, I am instructed by S.M. Jogendranundinee Dasi, the mother and
guardian appointed by the High Court under its letters patent of the person and
property of Babu Dharmodas Ghose, that a mortgage of the properties of the
said Babu Dharmodas Ghose is being prepared from your office.
I am instructed to give you notice, which I hereby do, that the said Babu
Dharmodas Ghose is still an infant under the age of twenty-one, and any one
lending money to him will do so at his own risk and peril.
Kedar Nath positively denied the receipt of any such letter; but the Court of first
instance and the Appellate Court both held that he did personally receive it on July
15; and the evidence is conclusive upon the point.
ie at the time of the transaction the attorney, who acted on behalf of the
money lender, had the knowledge that the plaintiff is a minor.
Dharmo Dass returned only Rs. 8000 and refused to return the balance.
In 1895 mother of Dharmo Dass and a next friend brought an action against the
defendant stating that he was a minor when the mortgage was executed by him
and, therefore, mortgage was void and inoperative and the same should be
cancelled.
The lower court granted relief to plantiff Dharmo Dass
Bhramo Dutt, preferred an appeal in Calcutta High court. HC granted the relief
asked.
The Appellate Court dismissed the appeal from Dharmodas.
By the time of Appeal to the Privy Council the defendant, Brahmo Dutt died and the
Appeal was prosecuted by his executors Mohri Bibee.
The Defendant (Mohri Bibee), amongst other points, contended that the plaintiff
had fraudulently misrepresented his age and therefore no relief should be given to
him, and that, if mortgage is cancelled as requested by the plaintiff, the plaintiff
should be asked to repay the sum of Rs. 10,500 advanced to him.

Issues :
what is the nature of minors agreement?
Judgement :
By virtue of Section 11 of the Indian Contract Act, a minor is incompetent to
contract. But this Act is conspicuously silent about the nature of a minors contract.
It is thus not clear so to whether a minors contract is void or voidable.
Upto 1903 there was a great controversy among High Courts on Indian soil in this
connection. This controversy was finally resolved by the Privy Council in 1903 in
Mohiri Bibee v. Dharmodas Ghose case.
The Privy Council declared that the minors contract was void and not merely
voidable.
The Privy Council reached this conclusion on the basis of Sections 10, 11, 183, 184,
246 and 247 of the Contract Act (Section 30 of the Partnership Act). The combined
effect of these Sections, especially Sections 10 and 11 render the minors contract
void.
In view of Privy Council, Section 11 is not to be construed literally. It makes crystal
clear that only a person who is the age of majority is competent to contract. Thus
a minors contract is void ab initio and wholly void.
Thus,
Minors are not eligible to enter into contract u/s 11 of the contract act. Hence
any contract with a minor is void ab initio.
All the requirements u/s 11 of the Indian Contract Act,1872 has to be fulfilled in
order to constitute a valid contract.
25) Due process of Law under Article 21 of the Constitution : Maneka Gandhi v.
Union of India.
Discuss : Maneka Gandhi v/s. Union of India. (Apr-2014)
ANSWER :
Refer :
good - http://lawfarm.in/blogs/a-case-analysis-of-the-maneka-gandhi-case
BRIEF FACTS OF THE CASE
On the 4th of July, 1977, Smt. Maneka Gandhi received a letter from the Regional
Passport Office, Delhi, asking her to submit her passport (No. K-869668) within
seven days from the day on which she had received such letter, i.e. before 11th
July 1977.
The letter stated that it had been the decision of the Government of India to

impound her passport under Section 10(3)(c) of the Passport Act 1967. The
grounds for such an impounding, as told to her, was public interest.
Smt. Maneka Gandhi immediately sent a letter to the Regional Passport Officer,
inquiring about the grounds on which her passport had been impounded. She also
requested him to provide a copy of the Statement of Reasons for making of such
an order.
The reply sent by the Ministry of External Affairs was that it was the decision of the
Government of India to impound the passport in the interest of the general public.
Also, there were orders to not issue her a copy of the Statement of
Reasons.
Smt. Maneka Gandhi thus filed a petition with regards to the matter.
JUDGEMENT OF THE CASE
It was held that Section 10(3)(c) of the Passport Act confers vague and undefined
power on the passport authorities, it is violative of Article 14 of the Constitution
since it doesnt provide for an opportunity for the aggrieved party to be heard.
It was also held violative of Article 21 since it does not affirm to the word
procedure as mentioned in the clause, and the present procedure performed was
the worst possible one.
The Court, however, refrained from passing any formal answer on the matter, and
ruled that the passport would remain with the authorities till they deem fit.
Section 10(3) of the Passports Act 1967 The passport authority may impound or
cause to be impounded or revoke a passport or travel document, -
(c) if the passport authority deems it necessary so to do in the interests of the
sovereignty and integrity of India, the security of India, friendly relations of India
with any foreign country, or in the interests of the general public;
RATIO DECIDENDI OF THE CASE
1. Section 10(3)(c) of the Passport Act is violative of Article 14 of the Indian
Constitution
Article 14 of the Constitution talks about equality before law. This provision is
absolutely against arbitrariness or vagueness of any sort as far as the actions of
the executive are concerned.
Section 10(3)(c) of the Passports Act confers unlimited powers on the passport
authorities. Since it is vague in its wordings, the application of such a provision
has not been very clearly defined in the Act. Thus, this leaves a lot of scope for
the executive to interpret it in whichever way they want, and hence get away
with a lot of actions under the guise of varied interpretation.
The provision also leads to arbitrariness in the actions of the executive. The
arbitrariness comes from the fact that it is completely in the hands of the
passport authorities to decide whether or not, and how to proceed in a particular
case.

The words deems it necessary give the passport authorities complete freedom
to act in whichever manner they want, and in whichever cases they want. Thus
there is no uniformity or reasonableness in the actions of the passport
authorities, and their actions could differ from case to case.
E.P Royappa v. State of Tamil Nadu & Another,[1974] 2 SCR 348, was the
judgement applied by the Supreme Court to further justify their views. It was
held in this case that Article 14 is one of the pillars of the Indian Constitution
and hence cannot be bound by a narrow and inflexible interpretation.
Article 14 should thus be given the widest interpretation possible, which also
includes reasonableness and arbitrariness of certain provisions of the
legislations.
Based on these observations the Court held Section 10(3)(c) of The Passport Act
violative of Article 14 of the Constitution.
2. Violation of the Principle of Natural Justice: The Audi AlteramPartem Rule
The audi alteram partem rule is one of the three principles of natural justice, and
forms an important part in defining the constitutionality and fairness of any
procedure.
The literal translation of audi alteram partem is hear the other side. In a
laymans language it basically means that both the sides should be given the
opportunity to present their case before a decision is formulated for the case.
In the present case, Maneka Gandhi was denied reasons for the impounding of
her passport, which is unfair since every person has the right to know the
grounds on which any executive action is being taken against him/her. Also, she
was never given a chance to present her own case before the authorities.
The principle of audi alteram partem requires that before the final order for the
impounding of her passport was passed, Smt. Maneka Gandhi should have been
given a chance to approach the authorities and to bring to light her part of the
story so that the order for impounding of the passport would have been just.
There is always the possibility of arriving at a one sided conclusion when only
one party has been heard and the other is denied that opportunity. Thus to keep
the orders completely objective and free from bias, it is absolutely imperative
that both parties to a situation must be given a chance to put forward their side
of the story.
In the present case, during the Court proceedings itself, the passport authorities
ultimately ceded to the fact that they had been wrong in not providing Smt.
Maneka Gandhi a chance to present her case.
Thus, they ultimately agreed to withhold the order and give her a chance to
present her case before the concerned authorities. But what is important to note
is that the authorities had been held wrong in the first place, and only to
mitigate the blame had they accepted to let her present her case.

The final change of events prevented them from being held liable. Otherwise,
they were definitely in the wrong and even the Court had held that their action
had been arbitrary and contrary to the principles of natural justice.
3. Section 10(3)(c) not Violative of Article 19(1)(A) and Article 19(1)(g) of the
Constitution
Article 19(1)(a) of the Constitution talks about the freedom of speech and
expression guaranteed to all citizens of the country.
Article 19(1)(g), on the other hand, talks about freedom to carry out any trade
and profession.
Smt. Maneka Gandhi had alleged that the order to impound her passport also
violates these two rights of hers. She alleged that the freedom of speech and
expression also includes in its ambit the right to travel abroad to express oneself
among the people of other nations.
Thus according to her, the freedom of speech and expression also included the
right to go abroad to mingle with people, to carry out an exchange of ideas, to
be able to converse with the people of other nations, and thus to be able to
freely speak and express oneself outside India as well.
Now since she had been denied the right to travel out of India due to the
impounding of her passport, she alleged that her right to freedom of speech and
expression had been violated. The same way, she said that since she was a
journalist, it was part of her profession to travel to different parts of the world,
to cover news issues. Thus by denying her the opportunity to travel abroad, the
passport authorities had violated her right of trade and profession.
It was held by the Court that even though the above mentioned contentions
were correct and that such an order would in fact amount to violations of Article
19(1)(a) and 19(1)(g), there was nothing to prove that Ms. Gandhi was
scheduled to travel on an official tour at the time the impugned order was
passed and her passport was impounded.
Neither was there anything to prove that she had some earnest need to travel
abroad towards realization of her right of expression under article 19(1), for eg.
Public speaking, dancing, literature, art, etc.
Thus this argument was rejected and the order was not held to be violative of
Articles 19(1)(a) and 19(1)(g).
However, the Court did go on to clarify that if at any point of time in the future
she was denied her passport from the government when she needed or wanted
to travel abroad to exercise either of the two rights under 19(1)(a) and 19(1)(g)
and the government denied such rights it would be considered to be an
infringement of these two fundamental rights.
4. The order is violative of Article 21 of the Indian Constitution - procedure
established by law -

In the case of Satwant Singh Sawhney v D. Ramarathnam, Assistant Passport

Officer, Government of India, New Delhi & Ors, the Supreme Court held by a
majority judgement that
the expression 'personal liberty' in Article 21 takes in the right of locomotion
and travel abroad, and under Article 21 no person can be deprived of his right
to go abroad except according to the procedure established by law. This
decision was accepted by the Parliament and the infirmity pointed out by it
was set right by the enactment of the Passports Act, 1967.
Keeping in mind this right, Smt. Maneka Gandhi alleged that her right to travel
abroad had been violated by the passport authorities.
Also, the clause talking about procedure established by law was contended
in that the procedure adopted in this case was arbitrary and unfair.
Maneka Gandhi contested that the procedure in this particular case was violative
of the audi alteram partem rule; it was arbitrary in that she was denied the
statement of reasons for the impounding of her passport; and it was also
violative of her fundamental rights because she was being denied the right to
travel abroad under Article 21, without being given valid reasons for the same.
As far as the procedural discrepancy was concerned, the attorney for the
government accepted the fact that the actions had been arbitrary and hence she
was given the chance to put forward her contentions. Thus that anomaly was
taken care of.
As far as the question of her fundamental rights was concerned, it was held that
true her fundamental right had been violated, but it was in the interest of the
general public. The Court has adopted a liberal interpretation of Article 21 in the
case, and expanded its ambit by leaps and bounds.
However, the Court has refrained from outrightly commenting on this issue in
this particular case.
OBITER DICTA OF THE CASE
A. Freedom of Speech and Expression {Article 19(1)(a)} is not bound only to the
national territories of India
This was a landmark opinion of the Court and one that was highly celebrated by
the entire country. The Court in the course of this case opined that the right to
freedom of speech and expression, as guaranteed to all the citizens of the
country, was limitless in that it had given to the citizens a vast number of rights
irrespective of whether they were in India or abroad.
The Court held that if the Constitution makers had intended this right to be
bound by the territories of the country, then they would have expressly
mentioned so as they have done for various other rights, such as the right to
settle down freely, or the right to assemble freely.
However, since no such words had been added at the end of this provision, the

Court felt that it was its duty to give it the widest interpretation possible.
Also, supporting this view was the fact that the Universal Declaration of Human
Rights was adopted by the General Assembly of the United Nations on 10th
December, 1948 and most of the fundamental rights which we find included in
Part III were recognised and adopted by the United Nations as the inalienable
rights of man in the Universal Declaration of Human Rights.
This further supported the view of the Court in that even though Indian Courts
may not have jurisdiction outside the territory of India, but these rights as
guaranteed by the Indian Constitution would still be maintained since they were
now fortified by the Universal Declaration of Human Rights which was adopted
by almost all the countries around the globe.
Giving this kind of an opinion was a landmark judgement and even though it
may not have the value of a precedent (since it is an obiter),
Courts all over the country have adopted this view of the Supreme Court, and
used it in their judgements.
B. Article 21 is not to be read in isolation - all violations and procedural
requirement under Article 21 are to be tested for Article 14 and Article 19 also.
The Supreme Court in the present case had adopted the widest possible
interpretation of the right to life and personal liberty, guaranteed under Article
21 of the Constitution. Bhagwati, J. observed :
The expression personal liberty in Article 21 is of widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of man
and some of them have raised to the status of distinct fundamental rights and
given additional protection under Article 19.
Also, with respect to the relationship between Article 19 and Article 21, the
Court held that Article 21 is controlled by Article 19, i.e., it must satisfy
the requirement of Article 19.
The Court observed :
The law must therefore now be settled that Article 21 does not exclude
Article 19 and that even if there is a law prescribing a procedure for depriving
a person of personal liberty, and there is consequently no infringement of the
fundamental right conferred by Article 21 such a law in so far as it abridges or
takes away any fundamental right under Article 19 would have to meet the
challenges of that Article.
Thus a law depriving a person of personal liberty has not only to stand the
test of Article 21, but it must stand the test of Article 19 and Article 14 of the
Constitution as well.
CONCLUSION :
The case is considered a landmark case in that it gave a new and highly varied
interpretation to the meaning of life and personal liberty under Article 21 of the

Constitution.
Also, it expanded the horizons of freedom of speech and expression to the effect
that the right is no longer restricted by the territorial boundaries of the country. In
fact, it extends to almost the entire world.
Thus the case saw a high degree of judicial activism, and ushered in a new era of
expanding horizons of fundamental rights in general, and Article 21 in particular.
26) No right to strike, but right to Collective Bargaining : Dharm Dutta & Others
vs. Union of India (2004) 1 SCC 712)
Discuss : Dharm Dutt and others V/s. Union of India. (Apr-2014)
ANSWER :
Refer :

27) Principles laid down for Compulsory Retirement : State of Gujarat v.

Umedbhai M. Patel (AIR 2010 SC 1109)
ANSWER :
Refer :

28) Power of High Court to queash FIR, Criminal Complaints and pending
Criminal Proceedings u/s. 482 of the Cr.P.C. : Rupan Deol Bajaji vs. K. P. S.
Gill (AIR 1996 SC 309)
Explain the guidelines issued by the Supreme Court of India regarding powers of the
High Courts of quash FIR, Criminal complaints or criminal proceedings. (Apr-2013)
Discuss : Rupen Deol Bajaj v/s. K.P.S. Gill. (Apr-2014)
ANSWER :
Refer :

http://lawnn.com/rupan-deol-bajaj-vs-k-p-s-gill/
https://en.wikipedia.org/wiki/Rupan_Deol_Bajaj_case
Intro :
This is famously known as The Butt Slapping Case.
The Rupan Deol Bajaj case or Rupan Deol Bajaj vs KPS Gill case was one of the
most publicized, high-profile legal cases in India and remained in the media
limelight for many years.
At the time of incident in 1988,
Mrs Rupen Deol Bajaj was an IAS Officer working as the Special Secretary,
Finance.
Mr K P S Gill was an IPS, Director General of Police.
On 18 July 1988, during a party hosted at the Chandigarh residence of then Punjab
Financial Commissioner, S L Kapoor, at around 10.pm Mr KPS Gill, the accused,
walked across a group of ladies and joined them. After sometime some of the
ladies started leaving and going into the house. The victim didnt notice that Mr
KPS Gill was misbehaving with them.
KPS Gill then called the victim to talk about something. On realisation of out of
order behaviour by Gill, she avoided going. After a while Mr Gill reached out to her
amongst the other ladies who were sitting together and ordered her in an
obnoxious manner to get up and come along. She resisted and turned back and
started leaving, when he slapped her back.
Rupen Deol Bajaj lodged a FIR against Mr.KPS Gill the Director General of Police
u/s 341,342.352,354 and 509 of IPC, saying that he had molested her modesty by
patting her posterior.
Her husband Mr. B.R. Bajaj, was a senior I.A.S. officer of the Punjab Cadre, had
also filed a complaint in the Court of the Chief Judicial Magistrate for the same
offenses, described above against KPS Gill and was a party to the case.
Issues:
The only moot point is that weather the allegations constitute any of the offences
mentioned?
Judgement:
In 1998 the High Court of Punjab and Haryana Gill booked Gill u/s 354 i.e.
outraging modesty of a women and u/s 509 i.e. an act, word, gesture intended to
insult a lady.
He was sentenced for rigorous imprisonment for 3 months and simple
imprisonment for 2 months along with fine of Rs. 2,00,000.
Appeals were made into Supreme Court of India.
In 2005, the Supreme Court of India upheld the charges and conviction of KPS Gill
for the offense.

He was spared from undergoing the three-month jail sentence as it was converted
into probation by the Punjab and Haryana High Court.
Rupen Deol Bajaj declined to accept the monetary compensation. The court
ordered that it be donated to women's organizations.
Media reaction :
Rupen Deol Bajaj was highly praised in the media for both filing a case against
such a powerful officer of police and for refusing to be intimidated.
In 2010, after the Government's decision to strip police officers convicted of 'moral
turpitude' of medals and awards, she demanded that the Government take back
the Padma Shri award given to KPS Gill. She wanted the Government to move
against Gill in the same manner as it was proceeding against ex-Haryana top cop
SPS Rathore, to strip him of his police medal in the aftermath of the Ruchika
Girhotra molestation case.
However, no decision is taken on the demand.
Conclusion :
This was one of the most criticised high profiled cases.
The last decision came in 2005 which ultimately reduce the punishment to
probation. An opinion can be formed from this case about the lenient judicial
procedure towards the high elites of the society.
29) Power of High Court to queash FIR, Criminal Complaints and pending
Criminal Proceedings u/s. 482 of the Cr.P.C. : State of Haryana v. Bhajan Lal
(AIR 1992 SC 604)
Explain the guidelines issued by the Supreme Court of India regarding powers of the
High Courts of quash FIR, Criminal complaints or criminal proceedings. (Apr-2013)
ANSWER :
Refer :
http://www.shoneekapoor.com/quash/
<work on this>
Intro :
Bhajan Lal (1930 2011) was a politician and three-time chief minister from the
northern Indian state of Haryana. He first became the Chief Minister in 1979, again
in 1982 and once again in 1991. He also served as Union Agricultural Minister.
Power to quash FIR :
As per Black's dictionary, Quash means "To overthrow, to abate, to vacate, to

annul to make word".

In ordinary law terms, quash would mean to stop and put an end to the criminal
proceedings, be it at Chargesheet filed stage or FIR filed stage.
Under the scope of the powers of High Court under section 482 of the Code of
Criminal Procedure, 1973, a High Court, under rarest of rare translate may quash
FIR/ Chargesheet.
Central Bureau of Investigation v. Ravi Shanker Srivastawa, AIR 2006 SC2872
2006(3)ACR2486(SC)
Supreme Court, explained that exercise of power under Section 482 of CrPC
does not confer any new powers on the High Court. It only saves the inherent
power which the Court possessed before the enactment of the Code.
It envisages three circumstances under which the inherent jurisdiction may be
exercised, namely,
(i) to give effect to an order under the Code,
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
It is neither possible nor desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. No legislative enactment dealing
with procedure can provide for all cases that may possibly arise.
Courts, therefore, have inherent powers apart from express provisions of law
which are necessary for proper discharge of functions and duties imposed upon
them by law. That is the doctrine which finds expression in the section which
merely recognizes and preserves inherent powers of the High Courts.
All courts, whether civil or criminal possess, in the absence of any express
provision, as inherent in their constitution, all such powers as are necessary to
do the right and to undo a wrong in course of administration of justice on the
principle "quando ex aliquid allicui concedit, conceder wildetur et id sine quo res
ipsae esse non potest" (when the law gives a person anything it gives him that
without which it cannot exist).
While exercising powers under the section, the court does not function as a court
of appeal or revision. Inherent jurisdiction under the section though wide has to
be exercised sparingly, carefully and with caution and only when such exercise is
justified by the tests specifically laid down in the section itself.
It is to be exercised ex debito justitiae (prayer which litigant is entitled merely
upon the asking for it) to do real and substantial justice for the administration of
which alone courts exist.
Balkar Singh W. Jagdish Kumar, 2005 CrLJ 1712 (1715) (SC)
The High Court would not quash complaint or FIR merely on the statement of the
Counsel for the State for withdrawal of the case, the decision of the government
to withdraw the prosecution is an irrelevant ground.

Devendra W. State of U.P., JT 2009 (8) SC 120 MANUSC 0941 2009)

It is now well settled that the High Court ordinarily would exercise its jurisdiction
Under Section 482 of the Code of Criminal Procedure if the allegations made in
the first information report, even if given face value and taken to be correct in
their entirety, do not make out any offence.
When the allegations made in the first information report or the evidences
collected during investigation do not satisfy the ingredients of an offence, the
superior courts would not encourage harassment of a person in a criminal court
for nothing.
In the landmark case of State of Hariyana v. Bhajan Lal (AIR 1992 SC 604),
Supreme Court laid down broad guidelines for Quash of criminal proceedings at FIR
stage, which are mentioned below :
1. Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not
prima-facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if
any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers Under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as contemplated Under Section
155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.
6. Where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge.
To determine the Veracity of a prayer for quashing, raised by an accused by
invoking the power vested in the High Court under Section 482 of the Code of

Criminal Procedure, following steps were provided by Supreme Court in Prashant

Bharti vs. State of NCT of Delhi, AIR 2013 SC 2753 2013(4) AJR 469.
(i) Step one, whether the material relied upon by the accused is sound,
reasonable, and indubitable, i.e., the material is of sterling and impeccable
quality?
(ii) Step two, whether the material relied upon by the accused, would rule out
the assertions contained in the charges levelled against the accused, i.e., the
material is sufficient to reject and overrule the factual assertions contained in
the complaint, i.e., the material is such, as would persuade a reasonable
person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not
been refuted by the prosecution complainant, and/or the material is such, that
it cannot be justifiably refuted by the prosecution complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of
process of the court, and would not serve the ends of justice?
If the answer to ALL the steps is in the affirmative, judicial conscience of the
High Court should persuade it to quash such criminal-proceedings, in exercise of
power vested in it under Section 482 of the Code of Criminal Procedure.

Module-2 : Case-laws related to ALL other LL.B. subjects.
Topic Page
30 Bhopal Gas disaster case. (Principle of Absolute Liability) 81
31 Ashvinikumar V/s. Arvind Bose. 84
32 Rajnarayan V/s. Mrs. Indira Gandhi. 85
33 Madhavrao Scindia Vls. Union of India. 87
34 K.M. Nanavati v. State of Maharashtra. 88
35 D.K. Basu v State of West Bengal (1996): Guidelines for all types of
arrest and detention.
36 M. C. Mehta vs. Union of India (AIR 1997 SC 735) ( Taj Trapezium Case)
37 Narmada Bachao Andolan V/s. Union of India
38 Rural litigation and Entitlement Kendra Vs. State of U.P.
39 Chairman Railway Board Vs. Chandrima Das (AIR 2000 SC 988).
40 SC advocates on Record Association -vs- Union of India AIR 1994 SC

268, (1991) 4 SCC 699.
30) Bhopal Gas disaster case. (Principle of Absolute Liability)

ANSWER :
Refer :
Copied from 111 Environmental Law
http://www.legalservicesindia.com/article/article/legal-aspects-of-the-bhopal-gas-
tragedy-373-1.html
Intro :
Though the Principle of Absolute Liability was first laid down in M C Mehta v. Union
of India (Oleum gas case),
it is widely accepted that the awakening to the risks posed by hazardous
industries was caused by the Bhopal Gas Disaster which occurred nearly one
year before the Oleum Gas leak at Sri Ram Foods & Fertilizers.

The Bhopal Gas Tragedy is also in a way responsible for the passing of the Public
Liability Insurance Act, 1991 which provides for compulsory insurance of any unit
or factory undertaking a hazardous activity.
What is Principle of Absolute Liability ?
Brief Facts of the Case :
The Bhopal gas tragedy is, till date, the worlds worst industrial disaster. It
occurred in December of 1984 at Bhopal in Madhya Pradesh. The tragedy was a
result of the leak of the methyl isocyanate (MIC) gas from the Union Carbide India
Ltd (UCIL) plant which manufactured pesticides.
On the night of December 2-3, 1984, there was a leak of the MIC gas which is
considered to be the most toxic chemical in industrial use. All around the city of
Bhopal, people were exposed to this gas and the immediate effects of inhaling the
gas were coughing, vomiting, severe eye irritation and a feeling of suffocation.
Thousands of people died immediately and lakhs of people sustained permanent
injuries.
The Legal Battle :-
In the February of 1985, the Indian Government filed a case in the U.S Court for a
claim of $3.3 billons against the Union Carbide Corporation. But by 1986 all of
these litigations in the U.S District were transferred to India on the grounds of
forum non convenience. It means that the case should be transferred to a more
convenient forum so that the trial proceeds smoothly.
Meanwhile in March 1985, the Bhopal Gas Leak Disaster (Processing of Claims) Act
was passed which empowered the Central Government to become the sole
representative of all the victims in all kinds of litigations so that interests of the
victims of the disaster are fully protected and the claims for compensation are
pursued speedily.
In the year 1987, cases were filed in the Bhopal District Court which ordered the
Union Carbide Corporation to pay 350 crores as interim compensation. But the
interim order could not be decreed and therefore the UCC refused to pay the
amount.
Later on, at the High Court, this interim compensation amount was reduced to 250
crores. Both the Union of India and the UCC preferred appeals by special leave
against this High Court's order.
The Settlement Order :-
A major twist to these legal proceedings came through the settlement order which
was stroked out between the Indian Government and the Union Carbide in an out
of Court settlement in February 1989.
Through this deal the liability of the Union Carbide was fixed at $470 millions in full
and final settlement of all claims, rights, and liabilities arising out of the disaster. It

is noteworthy that $470 millions settlement is hardly 15% of the original claim of
$3.3 billions at the US Supreme Court.
The terms of the settlement were such that it limited liability under all future claims
as well, whether they were civil or criminal. This would mean that henceforth, all
kinds of liability arising out of the disaster could be fixed only upon the
Government of India and the Union Carbide would be held liable only to the extent
of $470 millions.
Challenge to the $470 million settlement :
Settlement order was between the Union of India and the Union Carbide
Corporation, whereas the actual people who are going to be affected by such a
settlement order would be the victims of the tragedy. No notice was given to any of
the people whose interests would be affected.
Settlement also applied to future claims and this would mean stifling prosecution
and that it was opposed to public policy. The order was also questioned for the
inadequacy of the compensation and for the absence of any re opener clause. The
absence of re opener clause is a very significant issue as latency period for the
manifestation of the effects of the toxic injuries was unpredictable and therefore
the amount of compensation was wrongly arrived at
1991 Supreme Court Judgment :
All these contentions were rejected by the Supreme Court and the validity of the
settlement order was upheld in the case, Union Carbide Corporation v Union of
India, the judgment being delivered on October 3, 1991.
The Court was of the opinion that the subject matter of the deal was not illegal and
that there was no valid reason to render the contract void. The settlement only
limits the liability of the Union Carbide and this does not affect the victims in
anyway because in any case the settlement fund is to be found insufficient, then
the deficiency is to be made good by the Union of India. Thus, no liability could be
fixed on the Union Carbide.
The rationale behind the judgment was that withdrawal of a prosecution with a
good motive, such as providing relief to the victims of a disaster is not opposed to
public policy and hence the deal would stand valid. The very basic consideration
motivating the conclusion of the settlement order was the compelling need for
urgent relief.
Conclusion :
When an enterprise or (an individual) is engaged in hazardous or inherently
dangerous industry,
the principle of safe design would be that one does not guard merely against the
most predictable, routine type of accidents.
Rather one tries to anticipate the worst that could happen, even if it is highly
unlikely,

and not only guard against it, but prepare to contain it and make sure that
there is no way for accident to take place.
However, IN CASE, any harm results on account of such hazardous or inherently
dangerous activity THEN
the enterprise is absolutely liable to compensate for such harm,
and that it should be no defence for the enterprise to say that it had taken all
reasonable care / extreme precautions
or that the harm occurred without any negligence on its part.
and that it should be no defence for the enterprise to argue that the direct or
the proximate cause of the accident is actually an Act of God or that it is due
to some third party intervention.
31) Ashvinikumar V/s. Arvind Bose.

ANSWER :
Refer :
http://shodhganga.inflibnet.ac.in/bitstream/10603/130519/11/11_chapter
%203.pdf
Aswini Kumar Ghosh -vs- ARABINDA BOSE - 1953 SCR 1 : AIR 1952 SC 369 : 1952
SCJ 568
Is the issue non-obstante clause?
NON OBSTANTE CLAUSE :
A section sometimes begins with the phrase notwithstanding anything contained
etc. Such a clause is called a non obstante clause and
its general purpose is to give the provision contained in the non obstante clause
an overriding effect in the event of a conflict between it and the rest of the
section.
Thus, there is generally a close relation between the non obstante clause and the
main section and in case of ambiguity the non obstante clause may throw light on
the scope and ambit of the rest of the section.
If, however, the enacting part is clear and unambiguous, its scope cannot be
whittled down by the use of the non obstante clause.
This phrase i.e. notwithstanding anything in is in contradiction to the phrase
subject to.
In Aswini Kumar v. Arabinda Bose, 858
the petitioner was an Advocate of the Calcutta High Court and also of the

Supreme Court of India.

The Supreme Court Advocates (Practice in High Courts) Act, 1951 is an Act to
authorise Advocates of Supreme Court to practice as of right in any High Court.
When he filed in the Registry on the original side of the Calcutta High Court a
warrant of authority executed in his favour to appear for a client, it was
returned, because under the High Court Rules and Orders, Original side, an
Advocate could only plead and not act.
The Advocate contended that as an Advocate of the Supreme Court he had a
right to practice which right included the right to act as well as to appear and
plead without being instructed by an attorney.
The contention was accepted by the majority. The Supreme Court observed
that :
the non obstante clause can reasonably be read as overriding anything
contained in any relevant existing law which is inconsistent with the new
enactment, although the draftsman had primarily in his mind a particular type
of law as conflicting with the new Act.
The enacting part of a statue must, where it is clear, be taken to control the
non obstante clause where both cannot be read harmoniously; for, even apart
from such a clause, a later law abrogates earlier laws clearly inconsistent with
it.
While it may be true that the non obstante clause need not necessarily be co-
extensive with the operative part, there can be no doubt that ordinarily there
should be a close approximation between the two.
It was further observed that :
It should first be ascertained what the enacting part of the section provides
on a fair construction of the words used according to their natural and
ordinary meaning, and the non obstante clause is to be understood as
operating to set aside as no longer valid anything contained in relevant
existing laws which is inconsistent with the new enactment.
32) Rajnarayan V/s. Mrs. Indira Gandhi.

ANSWER :
Refer :
https://en.wikipedia.org/wiki/State_of_Uttar_Pradesh_v._Raj_Narain
The State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333) was a
1975 case heard by the Allahabad High Court that found the then-Prime Minister of

India Indira Gandhi guilty of electoral malpractices.

Ruling on the case that had been filed by the defeated opposition candidate, Raj
Narain, Justice Jagmohanlal Sinha invalidated Gandhi's win and barred her from
holding elected office for six years.
The decision caused a political crisis in India that led to the imposition of a state of
emergency by Gandhi's government from 1975 to 1977
Facts :
Raj Narain had contested the Indian general election, 1971 against Indira Gandhi,
who represented the constituency of Rae Bareilly in the Lok Sabha, the lower house
of the Indian Parliament.
Gandhi was re-elected from Rae Bareilly by a two-to-one margin of the popular
vote, and her Indian National Congress (R) party won a sweeping majority in the
Indian Parliament.
Narain filed a petition to appeal the verdict, alleging that Indira Gandhi used
bribery, government machinery and resources to gain an unfair advantage in
contesting the election.
Narain specifically charged Gandhi of using government employees as election
agents and of organising campaign activities in the constituency while still on the
payroll of the government.
Mrs Gandhi was represented by the noted lawyer Nani Palkhiwala,
Raj Narayan by Shanti Bhushan.
After Mrs Gandhi imposed emergency on 26-June-1975, Palakhiwala resigned as
her lawyer to protest against the decision.
When Janata Party came to power in 1977, Palakhiwala was appointed Ambassador
to US. Shanti Bhushan became a minister in the Janata Party government.
Judgement :
On 12 June 1975, Justice Jagmohanlal Sinha found Indira Gandhi guilty of electoral
malpractices.
Sinha declared the election verdict in the Rae Bareilly constituency "null and void",
and barred Indira from holding elected office for six years.
While Sinha had dismissed charges of bribery, he had found Indira guilty of
misusing government machinery as a government employee herself.
The court order gave the Congress (R) twenty days to make arrangements to
replace Indira in her official posts. This was unprecedented.
Its impact finally led to the fall of Congress regime at the centre immediately after
emergency.
Raj Narain became a national hero for overthrowing Indira's and Congress regime
after 30 years of independence, initially by trouncing Indira in judicial battle and
later in 1977 Loksabha elections.

This fulfilled an unrealised dream of his friend and mentor Dr Ram Manohar Lohia.
Indira appealed the verdict to the Supreme Court of India, which granted a
conditional stay of execution on the ruling on 24 June 1975.
On 7 November 1975, the Supreme Court of India formally overturned the
conviction.
Significance :
The Times of India compared the verdict to "firing the Prime Minister for a traffic
ticket".
The Congress (R) also staged numerous protests across the country in support of
Indira. However, the verdict helped galvanize the opposition political parties, who
demanded that Indira Gandhi resign from office immediately.
Jayaprakash Narayan, the leader of the Janata Morcha, a coalition of opposition
political parties, called for a campaign of civil disobedience to oust Indira's
government.
On 25 June 1975, a state of emergency was declared by the President of India,
Fakhruddin Ali Ahmed, upon the advice of Prime Minister Indira Gandhi.
The government argued that the political disorder was a threat to national security.
Using the sweeping powers granted by the emergency decree, thousands of
opposition leaders and activists were arrested, press censorship was introduced
and elections were postponed.
During this period, Indira Gandhi's Congress (R) used its parliamentary majority to
amend the Indian Constitution and overwrite the law that she had been found
guilty of violating.
When the government finally called elections in 1977, the opposition Janata Party
alliance defeated Indira Gandhi's Congress (R) party. Raj Narain defeated Indira
Gandhi in the Rae Bareilly constituency by a margin of 55,200 votes.
33) Madhavrao Scindia Vls. Union of India.

ANSWER :
Refer :
https://juris.quora.com/The-Madhav-Raoscindia-Vs-Union-of-India-Case
read the head note of http://india.lawi.asia/h-h-maharajadhiraja-madhav-rao-
jiwaji-raoscindia-bahad-v-union-of-india/
https://en.wikipedia.org/wiki/Privy_Purse_in_India
Full Name: H. H. Maharajadhiraja Madhav Rao Jiwaji Raoscindia Bahad Vs. Union Of

India
Court: Supreme Court Of India
Date of Judgment: 15-Decemeber-1970
Citation(s): (1971) AIR 530, (1971) SCR (3) 9, ( 1971) SCC (1) 85
Background and Facts :
1967. Several Rulers of former Indian States had joined the Swatantra Party
headed by C. Rajagopalachari, and many of them defeated Congress candidates in
elections.
Indira Gandhi was, therefore, determined to abolish the Privy Purses. The motion
to abolish Privy Purses, and the official recognition of the titles, was brought before
the Parliament in 1970. It passed in Lok Sabha but was defeated by one vote in the
Rajya Sabha.
A few hours later the then President of India, V. V. Giri signed an instrument
withdrawing recognition of all the Rulers. This order was challenged by N.A.
Palkhivala in the Supreme court of India.
Holding of the Court :
The majority view held that the orders made by the President were illegal. The
petitioners were entitled to all their pre-existing rights and privileges including right
to privy purses.
Impact and/or Aftermath :
Indira Gandhi won a landslide victory in the 1971 election. The parliament
successfully passed the motion to abolish Privy Purses and privileges of the Rulers
of former Indian States as the 26th Amendment to the Constitution of India in
1971.
Then Prime Minister Indira Gandhi argued the case for abolition based on equal
rights for all citizens and the need to reduce the government's revenue deficit.
34) K.M. Nanavati v. State of Maharashtra.

ANSWER :
Refer :
http://lawnn.com/k-m-nanavati-v-state-maharashtra/
35) D.K. Basu v State of West Bengal (1996): Guidelines for all types of arrest and
detention
ANSWER :
Refer :
http://lawbriefs.in/2017/05/18/dk-basu-v-state-of-west-bengal-1996-guidelines-
for-all-types-of-arrest-and-detention/
Facts :
DK Basu, the Executive Chairman, Legal Aid Services, West Bengal, a non- Political
organisation,
on 26.08.1986 addressed a letter to the Chief Justice of India drawing his
attention to certain news items published in the Telegraph Newspaper regarding
deaths in police lock up and custody.
He requested that the letter be treated as a Writ Petition within the Public Interest
Litigation Category.
Considering the importance of the issues raised in the letter, it was treated as a
Writ Petition and notice was served to the Respondents.
While the Writ Petition was under consideration, one Mr. Ashok Kumar Johri
addressed a letter to the Chief Justice drawing his attention to the death of one
Mahesh Bihari of Pilkhana, Aligarh in Police Custody.
The same letter was also treated as a Writ Petition and was listed along with the
Writ Petition of D.K.Basu.
On 14.08.1987, the Court made the Order issuing notices to all the State
Governments and notice was also issued to the Law Commission of India
requesting suitable suggestions within a period of two months.
In response to the notice, affidavits were filed by several states including West
Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya,
Maharashtra and Manipur.
Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist
the Court. All the Advocates appearing rendered useful assistance to the Court
Issue :
The Issue in the Present Case pertained to Custodial Torture and Deaths by the
Police.
Decision : Authored by Dr. A.S. Anand, J. (as he then was)
(1) The Court opined that Custodial Violence, including Torture and Death in Lock
Ups, strikes a blow at the Rule of Law.
(2) The Court observed that despite the presence of several Constitutional and
Statutory provisions aimed at safeguarding the personal liberty and life of a citizen,
there had been several instances of torture and deaths in police custody which was
a disturbing factor.
(3) The Court severely criticised the existence of Custodial Death and regarded it to

be one of the Worst Crimes in a Civilised Society to be governed by the Rule of

Law.
(4) A Reference was made to the case of Neelabati Bahera v. State of Orissa
(1993) in which the Supreme Court had held that prisoners and detenues are not
denuded of their Fundamental Rights under Article 21
and only such restriction as permitted by law could be imposed on the
enjoyment of the Fundamental Rights of the prisoners and detenues.
(5) The Court issued a list of 11 guidelines in addition to the Constitutional and
Statutory Safeguards which were to be followed in all cases of arrest and detention.
The guidelines are as follows :
(i) The Police Personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name tags
with their designations.
The Particulars of all such personnel who handle interrogation of the arrestee
must be recorded in a register.
(ii) That the Police Officer carrying out the arrest of the arrestee shall prepare a
memo of the arrest at the time of arrest
and such memo shall be attested by at least one witness who may be either a
member of the family of the arrestee or a respectable person of the locality
from where the arrest is made.
It shall also be counter signed by the arrestee and shall contain the time and
date of arrest.
(iii) A person who has been arrested or detained and is being held in custody in
a police station or interrogation centre or other lock-up,
shall be entitled to have one friend or relative or other person known to him
or having interest in his welfare
being informed, as soon as practicable, that he has been arrested and is
being detained at the particular place,
unless the attesting witness of the memo of the arrest is himself such a
friend or a relative of the arrestee.
(iv) The time, place of arrest and venue of custody of an arrestee must be
notified by the police {where the next friend or relative of the arrestee lives
outside the district or town}
through the Legal Aid Organisation in the District and the police station of the
area concerned
telegraphically within period of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of his right to have someone
informed of his arrest or detention as soon he is put under arrest or is detained.
(vi) An entry must be made in the Case Diary at the place of detention regarding

the arrest of the person

which shall also disclose the name of the next friend of the person who has
been informed of the arrest
and the names and particulars if the police official in whose custody the
arrestee is.
(vii) The Arrestee should, where he so requests, be also examined at the time of
his arrest and major and minor injuries, if present on his/her body, must be
recorded at that time.
The Inspection Memo must be signed both by the arrestee and the police
officer effecting the arrest and its copy provided to the arrestee.
(viii) The arrestee should be subjected to medical examination by a trained
doctor every 48 hours during his detention in custody
by a doctor on the panel of approved doctors appointed by the Director,
Health Services of the concerned State or Union Territory.
(ix) Copies of all the documents including the memo of arrest should be sent to
the Magistrate for his record.
(x) The Arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation.
(xi) A Police Control Room should be provided at all district and state
headquarters,
where information regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer causing the arrest,
within 12 hours of effecting the arrest
and at the Police Control Room Board, it should be displayed on a conspicuous
notice board.
36) M. C. Mehta vs. Union of India (AIR 1997 SC 735) (Taj Trapezium Case).
ANSWER :
Refer :
https://elsjnuals.wordpress.com/2017/01/02/m-c-mehta-taj-trapezium-matter-v-
union-of-india1997-2-scc-353-before-the-supreme-court-of-india-writ-petition-
civil-no-13381-of-1984-decided-on-30-12-1996/
https://lawupdaterblog.wordpress.com/2016/08/22/case-analysis-mc-mehta-taj-
trapezium-matter-v-union-of-india/
Intro :
The Taj Mahal, an ivory-white marble mausoleum, is acclaimed to be one of the

most priceless national monuments.

However, the Taj is threatened with deterioration and damage not only by the
traditional causes of decay, but also by changing social and economic conditions
which exacerbate the situation.
The degradation of the Taj Mahal led M.C. Mehta, an environmentalist and a public
interest attorney to file a public interest litigation before the Supreme Court in
1984.
The petitioner sought appropriate directions to authorities concerned to take
immediate steps to stop air pollution in the Taj Trapezium Zone and save the Taj
Mahal.
Facts of the case :
The Taj Trapezium Zone (TTZ) referred to in the case is a 10,400 sq.km
trapezium-shaped area covering the five districts of the Agra region.
According to the petitioner, the foundries, chemical/hazardous industries and the
refinery at Mathura are the major sources of pollution in Agra Region as stated in
the report of the Central Pollution Control Board.
The Sulphur Dioxide emitted by the Mathura Refinery and other industries when
combined with Oxygen with the help of moisture in the atmosphere forms sulphuric
acid also called Acid rain which has a corroding effect on the gleaming white
marble.
Industrial emissions, brick-kilns, vehicular traffic and generator-sets are principally
responsible for polluting the ambient air around Taj Trapezium Zone (TTZ).
The petitioner averred that the white marble has yellowed and blackened in places
and the decay is more apparent inside.
Time Line :
In this case, the Supreme Court examined several reports presented by different
stakeholders.
The National Environment Engineering Research Institute (NEERI) gave an
Overview Report in 1990 observing that there was high impact of the air quality
on the Taj due to the rapid industrial development of Agra-Mathura region resulting
in acidic emissions into the atmosphere at an alarming rate.
As a result of this petition, the Honble Supreme Court of India passed a series of
orders from 1993.
On 8-1-1993, the Supreme court directed the U.P. Pollution Control Board (the
Board) to get a survey done of the area and prepare a list of all the industries and
foundries which are the sources of pollution in the area.
The Board accordingly filed an affidavit dated 3-5-1993 reporting the findings of
its survey. It categorized the industries and reported that there were total of 511
industries in the given area.

Pursuant to the Courts order dated 8-1-1993, notices were issued to all these
industries to install anti-pollution mechanisms.
NEERI in its report submitted in October 1993 recommended the use of natural
gas as an alternative.
The Court by the order dated 11-2-1994 asked NEERI to examine the possibility of
using Propane or any other safe fuel instead of coal/coke by the industries in the
TTZ.
The Court on 11-4-1994 examined the NEERI Report dated July 1993 which found
that the industries in the TTZ were the main sources of pollution causing damage
to the Taj.
Pursuant to the Order dated 11-4-1994, the MoEF appointed Varadharajan
Committee submitted its report regarding preservation of Taj Mahal and Agra
monuments in two volumes.
The Supreme Court examined the NEERI Report dated July 1993 and the
Varadharajan Committee Report, both of which, suggested the relocation of the
polluting industries situated in the Taj Trapezium to an area outside the TTZ.
The Supreme Court directed the MoEF to examine both the reports and indicate the
measures the Ministry intended to take to preserve the Taj Mahal.
The Court subsequently passed an order indicating that in a phased manner, the
industries located in Agra be relocated out of TTZ.
The Supreme Court on 14-3-1996 directed the GAIL, Indian Oil Corporation (IOC)
and the U.P. State Industrial Development Corporation to identify industrial areas
outside the TTZ which would be connected with the gas supply network.
The Court held that those industries which were not in a position to get gas
connections or which were otherwise polluting may have to be relocated outside
the TTZ.
There were four NEERI reports, two Varadharajan reports and several reports by
the Board which were placed on record before the Honble Court.
After examining all the reports and taking into consideration other material on the
record, the Supreme Court held that the industries in the TTZ were active
contributors to the air pollution in the said area.
NEERI and Varadharajan Reports had specifically recommended the relocation of
industries from the TTZ.
Judgment :
The final judgment was delivered on 30th December 1996 by a Division Bench
comprising of Justice Kuldip Singh and Justice Faizan Uddin.
The court gave its orders based on the Precautionary Principle and Polluter Pays
Principle as was defined in Vellore Citizens Welfare Forum v. Union of India.
The court was of the view that both these principle are essential features of

Sustainable Development observing that there needs to be a balance between

economic development and environmental protection.
The Court indicated that relocation of the industries from TTZ was to be resorted to
only if Natural Gas was not acceptable/available by/to the industries as a substitute
for coke/coal.
Although the Board had placed on record a list of 510 industries which were
responsible for air pollution,
the Supreme Court confined the order only to 292 industries located and
operating in Agra.
The industries operating in TTZ which were given gas connections need not
relocate.
The Court relied upon Article 21 of the Constitution of India which guarantees
protection of life and personal liberty,
and also upon directive principles of state policy and fundamental duties
enshrined under Articles 47, 48-A and 51-A (g) of the Constitution.
The Court also relied upon several statutory enactments such as,
The Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention
and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.
In view of the above-mentioned constitutional and statutory provisions, the Court
was of the view that the Precautionary Principle and the Polluter Pays Principle are
part of the environmental law of the land.
Based on the reports of various authorities mentioned in this judgment, Supreme
Court had reached the finding that the emissions generated by the coke/coal
consuming industries were air-pollutants and had damaging effect on the Taj and
also to the people living in the TTZ.
In view of the precautionary principle relied upon by the Court, the environmental
measures should anticipate, avert and attack the causes of environmental
degradation.
The onus of proof was on an industry to show that its operation with the aid of
coke or coal was environmentally benign.
It was, rather, proved beyond uncertainty that the emissions generated by the use
of coke/coal by the industries in TTZ were the main polluters of the ambient air.
The court held that the above-mentioned 292 industries shall as per the schedule
indicated change-over to natural gas as an industrial-fuel
and the industries which were not in a position to get gas connections for any
reason would stop functioning with the aid of coke/coal in the TTZ and may
relocate themselves as per the orders given by the Supreme Court.
Conclusion :
In this landmark judgement, the Supreme Court espoused the cause of protection

of national heritages such as the Taj Mahal from deterioration and damage due to
atmospheric and environmental pollution.
The Court based its judgement on the Precautionary Principle and Polluter Pays
Principle, thereby, making them an integral part of the environmental
jurisprudence of our country.
37) Narmada Bachao Andolan V/s. Union of India.

ANSWER :
Refer :
http://lex-warrier.in/2013/01/water-politics-narmada-bachao-andolan/
https://www.ecolex.org/details/court-decision/narmada-bachao-andolan-petitioner-
v-union-of-india-and-others-respondents-0ce2cd79-7e2f-49e8-baf0-
7284ce930218/
http://www.ielrc.org/content/c0005.pdf
The Narmada Project :
In the late 1940s, shortly after India declared independence, government
authorities began investigating potential uses of the Narmada River, the fifth
largest river in India.
A Commission study concluded in 1955 that the Narmada Basin had, hydroelectric
potential.
In 1961, Pandit Jawaharlal Nehru inaugurated the Narmada Project and
construction began under the direction of the newly formed Gujarat state
government.
The largest and most contentious among the thirty dams planned to be built along
the Narmada by the Indian government, was the Sardar Sarovar dam.
Starting in the late 1960s, the Sardar Sarovar Project (SSP) was the central
problem between the states of Gujurat, Madhya Pradesh, and Maharastra over the,
use, distribution, and control of the waters.
As a result of this dispute, the Supreme Court of India created the Narmada Water
Disputes Tribunal (NWDT) to settle conflicting claims of the states over
sharing the river water, cost of rehabilitating displaced people, and the height of
the dam.
The SSP is now operated as a, multipurpose, interstate, project being
implemented by the governments of Gujarat, Maharashtra, Madhya Pradesh, and
Rajasthan.
In 1978 India solicited the World Bank for a loan to finance the Narmada project.

In response, the World Bank sent out a team of inspectors to visit the project site
and in 1985 the Bank approved four hundred and fifty million-dollars in loans for
the project.
Two years later, the Indian Ministry of Environment and Forests authorized
clearance for construction under certain conditions.
Among those conditions were,
detailed surveys/studies,
completed field surveys, and
rehabilitation plans to be drawn out ahead of reservoir filling.
Construction of the dam began in 1987.
Narmada Bachao Andolan :
The Narmada Bachao Andolan (NBA) was founded in 1986 and is a movement
formed in the states that are affected by hydro power development.
The Narmada Bachao Andolan, through a series of protests and non violent
strategies, brought international attention to the SSP.
As a result of the Narmada Bachao Andolans protests the World Bank quickly
started to pay attention to the SSP and began to investigate the impact of the SSP
beginning in 1991.
The World Bank set up an Independent Review Panel (IRP) which was given a
twofold mandate; to assess the measures taken to resettle and rehabilitate
people who were affected by the project and to evaluate measures designed to
ameliorate the impact of the dam on the environment.
The IRP found a history of non-compliance with the conditions set forth in the loan
agreements with the Bank,
and that no proper data and assessments had been created to allow the IRP to
develop effective ameliorative measures.
The IRP concluded,
unless a project can be carried out in accordance with existing norms of human
rights and environmental protection, norms espoused and endorsed by both the
World Bank and borrower countries [should] not to proceed.
As a result of the investigation, in 1993 the Board heeded the assessments and
withdrew from the project.
However, the Indian government continued with construction.
In 1994 the Narmada Bachao Andolan petitioned the Supreme Court of India for
relief.
The petitioners sought the Courts guidance for,
some independent judicial authority to review the entire project,
and examine the current best estimates of all costs (social, environmental,

financial), benefits and alternatives

in order to determine whether the project is required in its present form in the
national interest or whether it needs to be restructured or modified.
The Narmada Bachao Andolan requested a comprehensive review of the project
and an injunction to prevent further construction until the review was completed.
THE DECISION :
In 2000, the Court cleared construction for the Narmada project to continue.
The main legal basis of the judgment was premised on the doctrine of latches.
The Court, in its majority opinion, articulated that,
while the anti-dam organization had been in existence since 1986, it [chose]
to challenge the clearance given in 1987 by filing a writ petition in 1994.
The Court stated that the Narmada Bachao Andolan has been agitating against
construction of the dam since 1986, but that having failed in its attempt to stall
the project the petitioner has resorted to court proceedings by filling this writ long
after environmental clearance was given and construction started.
The majority opined, this Court has entertained this petition with a view to satisfy
itself that there is proper implementation of the relief and rehabilitation measures.
The Court had only entertained the petition because of the Courts concern for
the protection of fundamental rights of the oustees.
The Court held
it is against the national interest and contrary to established principles of law
that decisions to undertake developmental projects are permitted to be
challenged after a number of years during which period public money has been
spent in execution of the project.
38) Rural litigation and Entitlement Kendra Vs. State of U.P.

ANSWER :
Refer :
http://www.legalservicesindia.com/article/article/the-dehradun-valley-litigation-
996-1.html
https://en.wikipedia.org/wiki/Rural_Litigation_and_Entitlement_Kendra
https://www.ecolex.org/details/court-decision/rural-litigation-and-entitlement-
kendra-dehradun-and-others-petitioners-v-state-of-up-and-others-respondents-
b9ec148d-cde9-4631-a12c-614386dde119/
Principles involved :
Start of Epistolary Jurisdiction


Intro :
Rural Litigation and Entitlement Kendra (RLEK) is a non-governmental
organization with its work base situated in the state of Uttarakhand, India.
Its office is located in Dehradun, the capital of Uttarakhand.
It evolved as a result of years of struggle against atrocities meted out to
underprivileged and marginalized communities in the region.
Facts of the case :
In 1983, the Supreme Court received a letter from the Rural Litigation and
Entitlement Kendra, complaining against the environmental degradation.
The SC treated the letter (epistolary jurisdiction) as a writ petition under Article 32.
This case was the first environmental case in the country to be heard by the
Supreme Court of India.
The case developed into complex litigation as lessees of more than 100 mines
joined the action.
The Supreme Court played an important role essentially in conducting a
comprehensive environmental review and analysis of the national need for mining
operations located in the Dehradun Valley.
In addition, the Court provided for funding and administrative oversight of
reforestation of the region.
Major Rulings of the Case :
In 1983, the Court prohibited blasting operations, while it was reviewing to
determine whether the mines were being operated in compliance with the safety
standards as laid down in the Mines Act of 1952 and other relevant mining
regulations.
The Court appointed an expert committee (the Bhargava Committee),
to assess the mines.
In March 1985, upon the recommendation of the Bhargava Committee, the Court
ordered that the most dangerous mines and those falling within the Mussoorie City
Board limits be denied leases and that their operations cease immediately.
The second committee (the Bandyopadhyay Committee) was
empowered to consider plans submitted by the miners to safeguard the
environment and to hear the claims of people adversely affected by the mining.
In 1987, after the review of the Bandyopadhyay committees report, which was
based on ecological considerations.
The Court concluded that mining in the Valley should cease.
The mining activity should only be permitted to the extent it is necessary in the
interests of the defence of the country and safeguarding of the foreign exchange

position.
An affidavit, from the Central Government, submitted by the Director of
Environment, Forests and Wildlife in the Ministry of Environment and Forests,
contained all the required evaluation and concluded that the continuing of mining
operations of any mine in the Dehradun-Mussorie Region was not justified on the
ground that it is a requirement of the defence industries.
In 1988, the Court concluded that all the mines in Dehradun Valley should remain
closed, except three operations.
In the Dehradun Valley litigation, the court concluded in 1988 that
continued mining in the valley violated the Forest Conservation Act.
Moreover, the court went beyond the requirements of the Act to conserve forest
merely and issued orders to ensure that the valley be reforested.
Vijay Shree Mines, one of the lessee permitted by the court to operate until the
expiry of its lease in 1990, misused the permission by continuing to quarry
limestone in an unscientific manner and in disregard of the directions issued by the
Monitoring committee.
In an application filed by the committee, the court held that the mining activity
secretly carried on by Vijay Shree Mines had caused immense damage to the
area and directed the firm to pay Rs. 3 lakhs to the fund of the Monitoring
committee.
Reasoning behind the Rulings :
In the Dehradun Valley Litigation case, the Central Government had become
concerned about the destructive mining operations in the Valley at the same time
when the Supreme Court took up the issue.
In 1983, the Government of India appointed a Working Group to inspect the
limestone quarries in the Dehradun-Mussoorie area.
The same individual, D.N. Bhargava, headed both the governments Working
Group and the courts committee came to similar conclusions as to the harmful
effect of the mines on the environment. The Working Group also prepared
reports for the court on the few mining operations, which were allowed to remain
open.
During the course of the litigation, in 1986, Parliament enacted the Environment
Protection Act.
The mining operators contended that as because the Act provides procedures to
deal with the situation at issue, the court should dismiss the case and leave the
issue to administrative authorities under the Environment Protection Act.
The counsel for the miners relied on the following statement of a 1986 opinion
issued in the case :
It is for the Government and the Nation and not for the court to decide

whether the deposits should be exploited at the cost of ecology and

environmental consideration or the industrial requirement should be otherwise
satisfied.
The Court rejected the miners arguments the ground that the litigation had
already commenced and significant orders had been issued by the court before
the adoption of the Environment Protection Act.
There was no conflict in the opinions of the court and the Central Government in
the instant case.
After the Courts ruling, the centre designated the Valley as an ecologically fragile
area under the Environment protection Act.
In addition, it appointed a Doon Valley Board, under the chairmanship of the
Minister for Environment and Forests, which was charged with conserving and
restoring degraded areas of the Valley.
The Supreme Court concluded that mining in reserved forests in the Dehradun
valley violated the Forest Conservation Act.
However, the Forest Conservation Act only prohibits non-forest activities on
forest lands that do not have the approval of the Central Government.
Welfare of mine operators and labourers :
In addition to ecological integrity and national interests, the Supreme Court was
also concerned with the welfare of mine operators and labourers left unemployed
by closure of the Dehradun Valley operations.
The Court issued the following directions to try to mitigate the effects of closing the
mines :
(a) Orders that mine lessees whose operations were terminated by the court
would be given priority for leases in new areas open to limestone mining; and
(b) Orders that the Eco-task Force of the central governments Department of
Environment shall,
reclaim and reforest the area damaged by mining
and that workers displaced by mine closure be given priority for jobs with the
Eco-Task Force operations in the region.
39) Chairman Railway Board Vs. Chandrima Das (AIR 2000 SC 988) :
ANSWER :
Refer :
http://lawmantra.co.in/case-brief-bangladeshi-woman-rape-case-the-chairman-
railway-board-ors-vs-mrs-chandrima-das-ors-on-28th-january-2000/

Facts :
Hanufa Khatun came from Bangladesh to Howrah Railway St on 26-Feb-1998 at
about 14.00 hours to avail Jodhpur Express at 23.00 Hours for paying a visit to
Ajmer Sharif.
She had, however, a wait listed ticket and so she approached a Train Ticket
Examiner at the Station for confirmation of berth against her ticket.
The Train Ticket Examiner asked her to wait in the Ladies Waiting room. She
accordingly came to the ladies waiting room and rested there.
At about 17.00 hours two unknown persons (later identified as one Ashoke Singh,
tout who posed himself as a very influential person of the Railway and Siya Ram
Singh a railway ticket broker) approached her, took her ticket and returned the
same after confirming reservation in Coach No.S-3 (Berth No.17) of Jodhpur
Express.
At about 20.00 hours Siya Ram Singh came again to her with a boy named Kashi
and told her to accompany the boy to a restaurant if she wanted to have food for
the night. Accordingly at about 21.00 hours she went to a nearby eating house with
Kashi and had her meal there.
Soon after she had taken her meal, she vomitted and came back to the Ladies
Waiting room.
At about 21.00 hours Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at
Howrah Station came to the Ladies Niwas before boarding the train.
She appeared to have some doubt initially but on being certified by the lady
attendants engaged on duty at the Ladies Waiting Room about their credentials she
accompanied them to Yatri Niwas.
She was taken to room No.102 on the first floor of Yatri Niwas. The room was
booked in the name of Ashoke Singh against Railway Card pass No. 3638 since
25th February, 1998.
In room No.102 two other persons viz. one Lalan Singh, Parcel Clerk of Howrah
Railway Station and Awdesh Singh, Parcel Clearing Agent were waiting.
Hanufa Khatun suspected something amiss when Ashoke Singh forced her into the
room.
Awdesh Singh bolted the room from outside and stood on guard outside the room.
The remaining four persons viz. Ashoke, Lalan, Rafi and Sitaram took liquor inside
the room and also forcibly compelled her to consume liquor.
All the four persons who were present inside the room brutally violated, Hanufa
Khatun.
When she could recover she managed to escape from the room of Yatri Niwas and
came back to the platform where again she met Siya Ram Singh and found him
talking to Ashoke Singh.

Seeing her plight Siya Ram Singh pretended to be her saviour and also abused and
slapped Ashoke Singh.
Since it was well past midnight and Jodhpur Express had already departed , Siya
Ram requested Hanufa Khatoon to accompany him to his residence to rest for the
night with his wife and children. He assured her to help entrain Poorva Express on
the following morning.
There Siyaram raped Hanufa and when she protested and resisted violently
Siyaram and Ram Samiran Sharma gagged her mouth and nostrils intending to kill
her as a result Hanufa bled profusely.
On being informed by the landlord of the building following the hue and cry raised
by Hanufa Khatun, she was rescued by Jorabagan Police.
Appellant (original respondents Railways and the Union of India) have admitted
that the main accused are employees of the railways,
and if the prosecution version is proved in accordance with law, they are
perpetrators of the heinous crime of gang rape repeatedly committed upon the
hapless victim Hanufa Khatun.
Issues :
1. Vicarious Liability of Government instrumentality engaged in commercial activity.
2. Whether foreigners are entitled to Fundamental Rights.
3. Public Interest Litigation.
Held :
Appeal Dismissed.
Judgement :
The only question argued before us was that
the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon
who was a foreigner and was not an Indian national.
It is contended that,
1. Vicarious Liability of Government instrumentality engaged in commercial
activity :
Since it was the individual act of those persons, they alone would be
prosecuted and on being found guilty would be punished and may also be
liable to pay fine or compensation,
but the Railways or the Union of India would not even be vicariously liable.
2. Whether foreigners are entitled to Fundamental Rights :
No compensation could have been legally awarded by the High Court in a
proceeding under Article 226 of the Constitution because Hanuffa Khatoon
was not an Indian but a Bangladeshi national. She cannot complain of the
violation of Fundamental Rights and on that basis she cannot be granted any
relief.

3. Public Interest Litigation :

For claiming damages for the offence perpetrated on Smt. Hanuffa Khatoon,
the remedy lay in the domain of Private Law and not under Public Law. A
practicing advocate who, in no way, was concerned or connected with the
victim, has no locus standi.
Serious nature of offences committer :
In the instant case, it is not a mere matter of violation of an ordinary right of a
person but the violation of Fundamental Rights which is involved.
Smt. Hanuffa Khatoon was a victim of rape.
This Court in Bodhisatwa vs. Ms. Subdhra Chakroborty (1996) 1 SCC 490 has
held rape as an offence which is violative of the Fundamental Right of a person
guaranteed under Article 21 of the Constitution. The Court observed as under :
Rape is a crime not only against the person of a woman, it is a crime against
the entire society.
It destroys the entire psychology of a woman and pushes her into deep
emotional crisis.
Rape is therefore the most hated crime.
It is a crime against basic human rights and is violative of the victims most
cherished right, namely, right to life which includes right to live with human
dignity contained in Article 21.
1. Vicarious Liability of Government instrumentality engaged in
commercial activity :
Contention that the Central Govt. cannot be held vicariously liable for the offence
of rape committed by the employees of the Railways.
It was contended that the liability under the Law of Torts would arise only when
the act complained of was performed in the course of official duty
and since rape cannot be said to be an official act, the Central Govt. would not
be liable even under the Law of Torts.
The argument is wholly bad and is contrary to the law settled by this Court on
the question of vicarious liability in its various decisions.
Running of Railways is a commercial activity. Establishing Yatri Niwas at various
Railway Stations to provide lodging and boarding facilities to passengers on
payment of charges is a part of the commercial activity of the Union of India and
this activity cannot be equated with the exercise of Sovereign power.
The employees of the Union of India who are deputed to run the Railways and to
manage the establishment, including the Railway Stations and Yatri Niwas, are
essential components of the Govt. machinery which carries on the commercial
activity.
If any of such employees commits an act of tort, the Union Govt., of which they

are the employees, can be held vicariously liable in damages to the person
wronged by those employees.
2. Whether foreigners are entitled to Fundamental Rights :
Contention that the Fundamental Rights in Part III of the Constitution are
available only to citizens of this country and since Smt. Hanuffa Khatoon was a
Bangladeshi national, she cannot complain of the violation of Fundamental
Rights and on that basis she cannot be granted any relief.
This argument must also fail for two reasons;
first, on the ground of Domestic Jurisprudence based on Constitutional
provisions and
secondly, on the ground of Human Rights Jurisprudence based on the
Universal Declaration of Human Rights, 1948, which has the international
recognition as the
Moral Code of Conduct having been adopted by the General Assembly of
the United Nations.
Smt. Hanuffa Khatoon, who was not the citizen of this country but came
here as a citizen of Bangladesh was, nevertheless, entitled to all the
constitutional rights available to a citizen so far as Right to Life was
concerned.
She was entitled to be treated with dignity and was also entitled to the
protection of her person as guaranteed under Article 21 of the Constitution.
As a national of another country, she could not be subjected to a treatment
which was below dignity nor could she be subjected to physical violence at
the hands of Govt. employees who outraged her modesty.
The Right available to her under Article 21 was thus violated. Consequently, the
State was under the Constitutional liability to pay compensation to her.
The judgment passed by the Calcutta High Court, therefore, allowing
compensation to her for having been gang-raped, cannot be said to suffer from
any infirmity.
3. Public Interest Litigation :
Contention that Mrs. Chandrima Das was only a practising advocate of the
Calcutta High Court and was, in no way, connected or related to the victim, Smt.
Hanuffa Khatoon
and, therefore, she could not have filed a petition under Article 226 for
damages or compensation being awarded to Smt. Hanuffa Khatoon on
account of the rape committed on her.
This contention is based on a misconception.
Learned counsel for the appellants is under the impression that the petition
filed before the Calcutta High Court was only a petition for damages or

compensation for Smt. Hanuffa Khatoon.

However, as a matter of fact, many other reliefs as, for example, relief for
eradicating anti-social and criminal activities of various kinds at Howrah
Railway Station were also claimed.
Thus, the true nature of the petition, therefore, was that of a petition filed in
public interest.
Having regard to the nature of the petition filed by respondent Mrs. Chandrima
Das and the relief claimed therein it cannot be doubted that this petition was
filed in public interest and the argument that she could not file that petition as
there was nothing personal to her involved in that petition must be rejected
Appeal by Chairman Railway Board, dismissed.
40) SC advocates on Record Association -vs- Union of India AIR 1994 SC 268,
(1991) 4 SCC 699.
ANSWER :
Refer :
http://www.lawyersclubindia.com/articles/Indian-Judicial-Process-A-Critique-
3363.asp
http://shodhganga.inflibnet.ac.in/bitstream/10603/128562/19/13_chapter
%206.pdf
Other related cases are :
Sarojini Ramaswami v. Union of India 1991(4) SCC 506;
krishnaswamy v. Union of India, 1992(4) SCC 605; and
Lily Thomas v. Speaker of Lok Sabha 1993 (4) SCC 234.
Issues :
Judicial appointments and accountability.
FACTS :
In this case a class petition was filed by the petitioner with regard to filing of the
vacancies in Supreme Court and high courts.
The issue in this case was with regard to the role of chief justice of India in
appointment, transfer and fixation of number of judges in Supreme Court and high
courts.
JUDGMENT : The nine-Judge SC Bench sat from April 7, 1993, to hear this
momentous matter concluding its hearing on May 11, 1993. Supreme court held that,
The initiation for the appointment of the judges in supreme court and High courts
shall be taken by a collegiums,

wherein decision be taken by the chief justice of India after consultation with two
senior most judges of supreme court.
The President in matter of appointment of supreme court and high court Judges, is
bound by the opinion of the chief justice of India,
and the term consultation used in Article 124(2) and Article 217(1) means
concurrence.
The opinion of chief justice of India does not have mere primacy but is
determinative in the matter of transfer of judges of high courts under Article 222.
Number of judges in high courts is sufficient but Supreme Court is empowered to
order the union to constitute a committee in future for fixation of number of
judges.
Controversial guidelines by the SC for appointment and transfer of SC & HC judges :
(1) The process of appointment of Judges to the Supreme Court and the High
Courts is an integrated 'participatory consultative process' for selecting the best
and most suitable persons available for appointment;
and all the constitutional functionaries must perform this duty collectively with a
view primarily to reach an agreed decision, subserving the constitutional
purpose, so that the occasion of primary does not arise.
(2) Initiation of the proposal for appointment in the case of the Supreme Court
must be by the Chief Justice of India, and in the case of a High Court by the Chief
Justice of that High Court;
and for transfer of a Judge/Chief Justice of a High Court, the proposal had to be
initiated by the Chief Justice of India.
This is the manner in which proposals for appointments to the Supreme Court
and the High Courts as well as for the transfers of Judges/Chief Justices of the
High Courts must invariably be made.
(3) In the event of conflicting opinions by the constitutional functionaries, the
opinion of the judiciary 'symbolised by the view of the Chief Justice of India and
formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any High Court can be
made, unless it is in conformity with the opinion of the Chief Justice of India.
(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the
Chief Justice of India, indicating that the recommendee is not suitable for
appointment, that appointment recommended by the Chief Justice of India may not
be made.
However, if the stated reasons are not accepted by the Chief Justice of India and
the other Judges of the Supreme Court who have been consulted in the matter,
on reiteration of the recommendation by the Chief Justice of India, the
appointment should be made as a healthy convention.
(6) Appointment to the office of the Chief Justice of India should be of the senior

most Judge of the Supreme Court considered fit to hold the office.
(7) The opinion of the Chief Justice of India has not mere primacy, but is
determinative in the matter of transfers of High Court judges/Chief Justices.
(8) Consent of the transferred Judge/Chief Justice is not required for either the first
of any subsequent transfer from one High Court to another.
(9) Any transfer made on the recommendation of the Chief Justice of India is not to
be deemed to be punitive, and such transfer is not justiciable on any ground.
(10) In making all appointments and transfers, the norms indicated must be
followed. However, the same do not confer any justiciable right in any one.
(11) Only limited judicial review on the grounds specified earlier is available in
matters of appointments and transfers.
(12) The initial appointment of Judge can be made to a High Court other than that
for which the proposal was initiated.
(13) Fixation of Judge-strength in the High Courts is justiciable, but only to the
extent and in the manner indicated.
(14) The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365: AIR
1982 SC 149,
in so far as it takes the contrary view relating to primacy of the role of the Chief
Justice of India in matters of appointments and transfers, and the justiciability of
these matters as well as in relation to Judge-strength,
does not commend itself to us as being the correct view.
The relevant provisions of the Constitution, including the constitutional scheme
must now be construed, understood and implemented in the manner indicated
herein by us.
Skewed rational given by SC to justify amendment of the Constitution by the SC : SC
gave following skewed rational to justify above guidelines : <work on this>
"Solmon's throne was supported by lions on both sides; let them be lions, but yet
lions under the throne; being circumspect that they do not check or oppose any
points of sovereignty."
In terms of the above Biblical apologue in the old Testament, the vital questions
which are of great constitutional significance affecting the Indian Judicial system
that are posed for deep consideration can be figuratively formulated thus :
(1) Whether the present day 'Solomon's throne (symbolizing the majesty of our
justice system) is fully supported by the 'Lion's (symbolizing the legislature and
executive) on both sides?
(2) Weather the 'Lions' are still under the 'throne'?
(3) Whether, the 'Lions' are circumspected from checking or opposing any of the
points of sovereignty of the judiciary (i.e. judicial sovereignty)?
(4) Whether it is for the 'Lions' to pronounce the name of 'Solomon' and his

successor to occupy the throne?

(5) Whether 'Solomon' has any right of proposing any celebrated structural
reform to his 'House' (symbolizing the judicial structure) or is it for the 'Lions' to
make such proposal to 'Solomon's House' without reference to Solonon?
(6) Is it for the 'Lions' to make any alteration to the structure of the Imperial
State of 'Solomon's House' and propose sweeping reforms whether Constitution
and composition of a 'Kingdom of Solomon'
- even without reference to Solomon or even inexcusably ignoring any
suggestion of Solomon?
(7) Whether under the present scheme and procedure proscribed and followed,
'Solomon' is made to sit on the chair of handicapped sub-silentio instead of his
own 'throne'?
CRITICAL ANALYSIS OF THE JUDGMENT :
Supreme court has destroyed the power arrangement envisaged by the
constitution, the Grund-norm of the country.
SC has exercised its authority beyond the power conferred by the court.
The term consult cannot be interpreted as concurrence.
According to Article 124(2) and Article 217(1) of the constitution,
power for appointment and transfer of SC & HC judges lies in the President.
What is required is only that he shall consult to the chief justice in case of
appointment of a Supreme Court judge.
In case of appointment of a high court judge he is required to consult such
number of high court and supreme court judges as it deem fit.
Our constitution is a normative constitution based on check and balance of powers
among three branches of the government, which has been destroyed by this per-
inquirium judgment.
No doubt the Supreme Court is given the inherent power to render justice under
art 142, but that power ought to be exercised within the parameter of the
constitution and statute, not to override the constitution or statute.
Making consultation as concurrence amount to amendment in the constitution
without the procedure established by the constitution.
Article 222 says that President may after consultation with chief justice of India
transfer a high court judge.
It means that the president is not bound by the opinion of the CJI .
Thus the statement that the opinion of chief justice of India does not have mere
primacy but is determinative in the matter of transfer of high courts judges, is per
inquirium .
Determination of the number of judges in courts falls within the domain of the
executive, not of the judiciary.

Thus we see that,

this judgment does not stand the test of constitutionality,
being an arbitrary,
per inquirium decision,
in violation of the Art 14
In fact the judgment render the judges liable for punishment under section 166
of I.P.C for deliberately violating the provisions of constitution.
Judgment is,
fancifully guided by the Biblical apologue in the old Testament as coined by
Francis Bacon in his 'Essay of Judicature',
rather than the Constitution of India.
41)
ANSWER :
Refer :

42)
ANSWER :
Refer :

43)
ANSWER :
Refer :


44)
ANSWER :
Refer :

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Module-2 Case-laws related to ALL other LL.B. subjects. 81

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Module-1 : Case-laws related to Sem-4 Syllabus or asked in exam of 214K Legal

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1 Principle of Pro Bono Publico : Bandhua Mukti Morcha v. Union of 7

2 Rule of Prospective Overruling : Golak Nath v. State of Punjab (AIR 10

3 Basic Structure Theory : Kesavananda Bharti v. State of Kerala (AIR 13

4 Maintenance to Muslim Divorced Women : Mohd. Ahmed Khan v. 16

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the right of maintenance to divorced Muslim wife. (May-2016)

5 Maintenance to Muslim Divorced Women : Danial Litifi's case (2002) 20

6 Uniform Civil Code : Sarla Mudgal President v. Union of India (AIR 23

7 Guidelines of Prevention of Sexual Harassment to women at working 28

8 Principle of Absolute Liability : Sri Ram Food Gas Leakage Case : 31

9 Medical Negligence and liabilities of Medical Practitioners : Jecob 35

10 Principle of Vicarious Liability : State of Rajasthan v. Vidhyawati 39

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(AIR 1963 SC 1295)

11 Public Trust Doctrine : M. C. Mehta v. Kamal Nath (1997) 1 SCC 388 42

12 Polluter Pays Principle & Public Trust Doctrine : (i) M. C.Mehta v. 45

13 Principle of Sustainable Development and Precautionary Principle : 48

14 Doctrine of Ultra Vires : Ashbury's Railway Company V. Riche 51

15 Doctrine of Indoor Management : Royal British Bank v. Turquand 52

16 Principle of Lifting the Corporate veil : Soloman v. Soloman's case 54

17 The Right of the Majority Rule (Company Law) : Foss v. Harbottle 55

18 Principle of Contributory Negligence : Donogue v. Stevenson (1932) 57

19 Reps Ipsa Loquitor : Gulli V. Swan 58

20 Reps Ipsa Loquitor : Byrne v. Boadle (1863)2 HBE 722 61

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21 Principle of Remoteness of Damages : Scott v. Shephard 96 Eng. Rep. 62

22 Principle of Remoteness of Damages : Re Polimis v. Wagon Mound 64

23 Death Sentence for Murder : Rarest of Rare Cases : Bachchan Singh 64

24 Contract with minors : Void ab initio : Case : Mohri Bibee V. 67

25 Due process of Law under Article 21 of the Constitution : Maneka 69

26 No right to strike, but right to Collective Bargaining : Dharm Dutta & 75

27 Principles laid down for Compulsory Retirement : State of Gujarat v. 75

28 Power of High Court to quash FIR, Criminal Complaints and pending 75

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29 Power of High Court to quash FIR, Criminal Complaints and pending 77

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included, directing the States to take steps to frame policies to progressively

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2) Rule of Prospective Overruling : Golak Nath v. State of Punjab (AIR 1967 SC

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Effect of the judgment :

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4) Maintenance to Muslim Divorced Women : Mohd. Ahmed Khan v. Shah Bano