Hon'ble Supreme Court of India observed as on ambit and scope of Article 32 “We have already had occasion to consider the ambit and coverage of Article 32 in the Bandhua Mukti Morcha v. Union of India and we wholly endorse what has been stated by one of us namely, Bhagwati, J. as he then was in his judgment in that case in regard to the true scope and ambit of that article. 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. It is in realisation of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.
We are also of the view that this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha case. If the court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the court can inject such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words “in appropriate cases” because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32.”
Jan 27, 2013
Vineet Narain Vs Union of India (1998) 1 SCC 226
Hon'ble Supreme Court of India observed as “There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is in the discharge of this duty that the IRC was constituted by the Government of India with a view to obtain its recommendations after an in-depth study of the problem in order to implement them by suitable executive directions till proper legislation is enacted. The report of the IRC has been given to the Government of India but because of certain difficulties in the present context, no further action by the executive has been possible. The study having been made by a Committee considered by the Government of India itself as an expert body, it is safe to act on the recommendations of the IRC to formulate the directions of this Court, to the extent they are of assistance. In the remaining area, on the basis of the study of the IRC and its recommendations, suitable directions can be formulated to fill the entire vacuum. This is the exercise we propose to perform in the present case since
this exercise can no longer be delayed. It is essential and indeed the constitutional obligation of this Court under the
aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligation. The directions issued herein for strict compliance are to operate till such time as they are replaced by suitable legislation in this behalf.”
Court on its own Motion Vs UOI
Hon'ble Supreme Court of India observed as - 13.12.12 - Amarnath cave case - in terms of Article 21 of the Constitution of India, a person has a right to live with dignity and not be subjected to inhuman treatment, particularly in such places where large number of people are bound to visit because of their faith.
The absence of statutory law
occupying the field formulating effective measures to check breach of
rights is the true scope of proper administration of justice. It is the
duty of the Executive to secure the vacuum, if any, by executive orders
because its field is coterminous with that of the Legislature and where there is inaction even by the Executive, for whatever reason, the Judiciary
must step in, in pursuance of its constitutional obligation to provide solution in any case till the time the Legislature addresses the issue.
The courts have taken precaution not to pass orders even within the ambit of Article 142 of the Constitution that would amount to supplanting
substantive law but at the same time these constitutional powers cannot in
any way be controlled by any statutory provision. The absence of law and a vacuum or lacunae in law can always be supplied by judicial dictum.
The absence of statutory law
occupying the field formulating effective measures to check breach of
rights is the true scope of proper administration of justice. It is the
duty of the Executive to secure the vacuum, if any, by executive orders
because its field is coterminous with that of the Legislature and where there is inaction even by the Executive, for whatever reason, the Judiciary
must step in, in pursuance of its constitutional obligation to provide solution in any case till the time the Legislature addresses the issue.
The courts have taken precaution not to pass orders even within the ambit of Article 142 of the Constitution that would amount to supplanting
substantive law but at the same time these constitutional powers cannot in
any way be controlled by any statutory provision. The absence of law and a vacuum or lacunae in law can always be supplied by judicial dictum.
University of Kerala Vs Council of Principals of Colleges, Kerala & Ors (2010) 1 SCC 353
Hon'ble Supreme Court of India observed as
“32. It may be noted that this Court has on several occasions issued directions, directives in respect of those situations which are not covered by any law. The decision in Vishaka Vs 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”.
33. Similarly, the Supreme Court issued directions regarding the procedure and the necessary precautions to be followed in the adoption of Indian children by foreign adoptive parents. While there was no law to regulate inter-country adoptions, Bhagwati, J., (as His Lordship then was) in Laxmi Kant Pandey Vs Union of India, formulated an entire scheme for regulating inter-country and intra-country adoptions. This is an example of the judiciary filling up the void by giving directions which are still holding the field.”
“32. It may be noted that this Court has on several occasions issued directions, directives in respect of those situations which are not covered by any law. The decision in Vishaka Vs 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”.
33. Similarly, the Supreme Court issued directions regarding the procedure and the necessary precautions to be followed in the adoption of Indian children by foreign adoptive parents. While there was no law to regulate inter-country adoptions, Bhagwati, J., (as His Lordship then was) in Laxmi Kant Pandey Vs Union of India, formulated an entire scheme for regulating inter-country and intra-country adoptions. This is an example of the judiciary filling up the void by giving directions which are still holding the field.”
OMA @ Omprakash & Anr Vs State of Tamil Nadu
Hon'ble Supreme Court of India -on 18.12.12- in this case Session Court had observed, “In this case, the accused came from a state about
2000 k.m. from our state and they did not think that
the victims were also human like them but they thought only about the well being of their family and
their own life and committed the fear of death amongst the common public of our state by committing robbery and murder for about 11 years.
Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare
case that calls for the imposition of death sentence.” -
The ‘special reasons’ weighed with the trial judge to say the least, was only one’s predilection or
inclination to award death sentence, purely judge-centric.
Learned judge has not discussed the aggravating or mitigating
circumstances of this case, the approach was purely ‘crimecentric’.... We are really surprised to note the “special reasons” stated by the trial judge in para 36(b) of the judgment. We fail to see why we import the criminal jurisprudence of America or the Arab
countries to our system. Learned trial judge speaks of sentence like “lynching” and described that it has attained legal form in America. Lynching means kill someone for an alleged offence
without a legal trial, especially by hanging....
We are also not concerned with the question whether the
criminals have come from 20 km away or 2000 km away.
Learned judge says that they have come to “our state”, forgetting the fact that there is nothing like ‘our state’ or ‘your state’. Such parochial attitude shall not influence or sway a judicial mind.
Learned judge has further stated, since the accused persons had come from a far away state, about 2000 km to “our state” for
committing robbery and murder, death sentence would be
imposed on them. Learned judge has adopted a very strange
reasoning, needs fine tuning and proper training....
Learned trial judge has also opined that the imposition of death sentence under Section 396 of the IPC is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A
Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge’s greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision.
Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial
precedents and judge shall not do anything which will undermine the faith of the people.
2000 k.m. from our state and they did not think that
the victims were also human like them but they thought only about the well being of their family and
their own life and committed the fear of death amongst the common public of our state by committing robbery and murder for about 11 years.
Therefore, this court is of the opinion that the death sentence that would be imposed on them would create a fear amongst the criminals who commit such crime and further this case is a rarest of rare
case that calls for the imposition of death sentence.” -
The ‘special reasons’ weighed with the trial judge to say the least, was only one’s predilection or
inclination to award death sentence, purely judge-centric.
Learned judge has not discussed the aggravating or mitigating
circumstances of this case, the approach was purely ‘crimecentric’.... We are really surprised to note the “special reasons” stated by the trial judge in para 36(b) of the judgment. We fail to see why we import the criminal jurisprudence of America or the Arab
countries to our system. Learned trial judge speaks of sentence like “lynching” and described that it has attained legal form in America. Lynching means kill someone for an alleged offence
without a legal trial, especially by hanging....
We are also not concerned with the question whether the
criminals have come from 20 km away or 2000 km away.
Learned judge says that they have come to “our state”, forgetting the fact that there is nothing like ‘our state’ or ‘your state’. Such parochial attitude shall not influence or sway a judicial mind.
Learned judge has further stated, since the accused persons had come from a far away state, about 2000 km to “our state” for
committing robbery and murder, death sentence would be
imposed on them. Learned judge has adopted a very strange
reasoning, needs fine tuning and proper training....
Learned trial judge has also opined that the imposition of death sentence under Section 396 of the IPC is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A
Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge’s greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision.
Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial
precedents and judge shall not do anything which will undermine the faith of the people.
Ravi alias Ravichandran Vs State represented by Inspector of Police (2007) 15 SCC 372
Hon'ble Supreme Court of India observed as -
“A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him....
It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification.”
“A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him....
It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification.”
Bhajju alias Karan Singh Vs State of Madhya Pradesh -(2012) 4 SCC 327
A two-Judge Bench of Hon'ble Supreme Court of India observed as
“Normally, when a witness deposes
contrary to the stand of the prosecution
and his own statement recorded under
Section 161 CrPC, the prosecutor, with
the permission of the court, can pray to
the court for declaring that witness
hostile and for granting leave to crossexamine the said witness. If such a
permission is granted by the court then
the witness is subjected to crossexamination by the prosecutor as well as an opportunity is provided to the
defence to cross-examine such
witnesses, if he so desires. In other
words, there is a limited examination-inchief, cross-examination by the
prosecutor and cross-examination by
the counsel for the accused. It is
admissible to use the examination-inchief
as well as the cross-examination of the said witness insofar as it supports
the case of the prosecution.”
“Normally, when a witness deposes
contrary to the stand of the prosecution
and his own statement recorded under
Section 161 CrPC, the prosecutor, with
the permission of the court, can pray to
the court for declaring that witness
hostile and for granting leave to crossexamine the said witness. If such a
permission is granted by the court then
the witness is subjected to crossexamination by the prosecutor as well as an opportunity is provided to the
defence to cross-examine such
witnesses, if he so desires. In other
words, there is a limited examination-inchief, cross-examination by the
prosecutor and cross-examination by
the counsel for the accused. It is
admissible to use the examination-inchief
as well as the cross-examination of the said witness insofar as it supports
the case of the prosecution.”
Rameshbhai Mohanbhai Koli and Others Vs State of Gujarat - (2011) 11 SCC 111
“It is settled legal proposition that
the evidence of a prosecution witness
cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross-examined him.
The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent that their version is found to be dependable on a
careful scrutiny thereof."
the evidence of a prosecution witness
cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross-examined him.
The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent that their version is found to be dependable on a
careful scrutiny thereof."
Jan 26, 2013
Sanjay Bhardwaj & Ors. v. The State & Anr
Hon'ble High Court of delhi 2009 observed as
a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree.
a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree.
Jan 24, 2013
Rameshbhai Dabhai Naika Vs State of Gujarat & Others SC 654 OF 2012 - 18.01.12
what would be the status of a person, one of whose parents belongs to the scheduled castes/scheduled tribes and the other comes from the upper castes, or more precisely does not come from scheduled castes/scheduled tribes-
Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the Legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. -
we propose to consider why the observation in Valsamma to the effect that an intercaste marriage or a marriage between a tribal and a non-tribal the woman becomes a member of the family of her husband and takes her husband’s caste (Paragraph 31 of the judgment) is not the ratio of that decision and more importantly what inequitable and anomalous results would follow if that proposition is taken to its next step to hold that the offspring of such a marriage would in all cases take the caste from the father. -
It seems a matter of grim irony that two nineteenth century decisions of the Privy Council that were rendered in their time to advance and safeguard the interests of Hindu widows should be relied upon and used for complete effacement of the caste and the past life of a woman as a result of her marrying into a different caste. -
the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an intercaste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.
Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the Legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. -
we propose to consider why the observation in Valsamma to the effect that an intercaste marriage or a marriage between a tribal and a non-tribal the woman becomes a member of the family of her husband and takes her husband’s caste (Paragraph 31 of the judgment) is not the ratio of that decision and more importantly what inequitable and anomalous results would follow if that proposition is taken to its next step to hold that the offspring of such a marriage would in all cases take the caste from the father. -
It seems a matter of grim irony that two nineteenth century decisions of the Privy Council that were rendered in their time to advance and safeguard the interests of Hindu widows should be relied upon and used for complete effacement of the caste and the past life of a woman as a result of her marrying into a different caste. -
the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an intercaste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.
Court on its own motion (LAJJA DEVI) through: NEMO Vs State
Hon'ble High Court of delhi observed as on 27.07.12
1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could
be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their
custody?
3) If yes, can she be kept in the protective custody of the State?
4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
5) Whether there may be other presumptions also which may arise?”
In such circumstances, allowing the husband to consummate a marriage may
not be appropriate more so when the purpose and rationale behind the PCM
Act, 2006 is that there should be a marriage of a child at a tender age as he
or she is not psychologically or medically fit to get married. There is another important aspect which is to be borne in mind. Such a marriage, after all, is voidable and the girl child still has right to approach the Court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years.
Answers to question-
1- voidable and PCM override HMA
2&3- yes but not for long period and free if above 20 - and it's on case to case basis
4&5- no
1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could
be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their
custody?
3) If yes, can she be kept in the protective custody of the State?
4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
5) Whether there may be other presumptions also which may arise?”
In such circumstances, allowing the husband to consummate a marriage may
not be appropriate more so when the purpose and rationale behind the PCM
Act, 2006 is that there should be a marriage of a child at a tender age as he
or she is not psychologically or medically fit to get married. There is another important aspect which is to be borne in mind. Such a marriage, after all, is voidable and the girl child still has right to approach the Court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years.
Answers to question-
1- voidable and PCM override HMA
2&3- yes but not for long period and free if above 20 - and it's on case to case basis
4&5- no
Rajendra Shrivastava Vs State of Maharashtra, (2010) 112 BomLR 762
Whether sc & st act may be add with sec 498a- Hon'ble High Court of Bombay observed as
“When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of a scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.”
“When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of a scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.”
Jumma Masjid Vs Kodimaniandra Deviah, AIR 1962 S C 847
the Supreme Court laid down the law as follows :
"Where the transferee knew as a fact that the transferor did not possess the title which he repre-sents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application ....."
"It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given the relevant words of Section 43 were 'where a person erroneously represents', and now, as amended by Act 20 of 1929 they are 'where a person fraudulently or erroneously represents' and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently is making the representation, and that what is material is that he did make a representation and the transferee has acted on it."
"Where the transferee knew as a fact that the transferor did not possess the title which he repre-sents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application ....."
"It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given the relevant words of Section 43 were 'where a person erroneously represents', and now, as amended by Act 20 of 1929 they are 'where a person fraudulently or erroneously represents' and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently is making the representation, and that what is material is that he did make a representation and the transferee has acted on it."
Jan 20, 2013
Centre For PIL & Anr Vs Union of India & Anr, AIR 2011 SC 1267
Supreme Court of India considered the argument of unanimity, or consensus, in the matter of the appointment of the Central Vigilance
Commissioner and observed as under
“It was further submitted that if unanimity is ruled
out then the very purpose of inducting the Leader
of the Opposition in the process of selection will
stand defeated because if the recommendation of
the Committee were to be arrived at by majority it
would always exclude the Leader of the
Opposition since the Prime Minister and the Home
Minister will always be ad idem.
We find no merit in these submissions. To accept
the contentions advanced on behalf of the
petitioners would mean conferment of a “veto
right” on one of the members of the HPC. To
confer such a power on one of the members would
amount to judicial legislation.”
Commissioner and observed as under
“It was further submitted that if unanimity is ruled
out then the very purpose of inducting the Leader
of the Opposition in the process of selection will
stand defeated because if the recommendation of
the Committee were to be arrived at by majority it
would always exclude the Leader of the
Opposition since the Prime Minister and the Home
Minister will always be ad idem.
We find no merit in these submissions. To accept
the contentions advanced on behalf of the
petitioners would mean conferment of a “veto
right” on one of the members of the HPC. To
confer such a power on one of the members would
amount to judicial legislation.”
Jan 14, 2013
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