Saturday, July 20, 2013
KARTIKEY SHROFF Law Office: SC: "Against unreasonable Policy of the Government, The remedy is to disapprove the same in Election and with the Court"
KARTIKEY SHROFF Law Office: SC: "Against unreasonable Policy of the Government, The remedy is to disapprove the same in Election and with the Court"
SC: "Against unreasonable Policy of the Government, The remedy is to disapprove the same in Election and with the Court"
While adjudicating a Civil Appeal No.2957 / 2013 against the impugned Order of the Gujarat High Court in the matters of the distribution of water of Narmada for Kachchha District, the Hon'ble Justice of Supreme Court of India has made some landmark observation "If the policy of the Government, in the opinion of the sovereign, is unreasonable, the remedy is to disapprove the same during election. In respect of policy, the Court has very limited jurisdiction.Even if we assume that this Court has the expertise, it will not encroach upon the field earmarked for the executive. A dispute, in our opinion, shall not be appropriate for adjudication by this Court when it involves multiple variable and interlocking factors, decision on each of which has bearing on others. "
Sunday, July 7, 2013
In the case of Mohini Jain V State of Karnataka and others - (1992) 3 SCC 666, The Hon'ble Supreme Court of India held that right to education is a fundamental right enshrined under Article 21 of the Constitution. The right to education springs from right to life. The right to life under Article 21 and the dignity of the individual cannot fully be appreciated without the enjoyment of right to education. The Apex Court observed that :"Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.”
Saturday, July 6, 2013
In order to teach our Lawyers, Followers, Colleagues for successful presentation in life, one of the best lessons are always about Art of Powerful Communication. In order to master this Art of Powerful Communication, I have defined some ABCD Rules through my life time experience, which I certainly love to share with my colleagues as well as all others professionals. Before Communicating anything, to anybody, in any way or manner, through any media, just wait for a moment and think of the effect that may be created and then shoot straight after following my under-mentioned ABCD Rules of Powerful Communication, in your all communication. A : Authentic and Accurate Appreciation B : Begin Well always C : Choose your words carefully D : Dress Suitably with appropriate quotations and illustrations. E : Eye Contact to evaluate your audience F : Focus on Main Points G : Get all united to task H : Harmony in communication I : Involve others in your Success J : Justify always what you communicate K : Knowledge of Topics you tell or communicate L : Let it be Logical M : Meaningful Message N : Natural Way of Communication O : Offensive Objects & Subjects to be avoided always P : Proper Pace and Pitch in the communication Q : Quality in Communication R : Respect your Audience because they respect you too S : Share the views peacefully T : Time Management U : Utter appropriate V : Verify before Communicate W : Worthless Language always to be avoided X : XXX always to be omitted Y : "You can win" keep this spirit and confidence always Z : Zeal of the audience to be appreciated with "Thanks" My aforesaid ABCD of Powerful Communication is the master key to achieve the effective "Art of Communication" only through constant learning, practice and teaching ....
How can we justify Contraband Offers of Freebies like Color TVs, Houses, Jobs, Laptops, Temple etc. for Victory in election ???
Yesterday in the matters of CIVIL APPEAL NO. 5130 OF 2013, instituted by S. Subramaniam Balaji, the appellant against the Dravida Munnetra Kazhagam (DMK)led Government of Tamil Nadu and others, the Division Bench of the Hon'ble Supreme Court of India has ruled with cautions and directed that " Although, the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality cannot be ruled out that distribution of freebies of any kind,undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree.As this Court has limited power to issue directions to the legislature to legislate on a particular issue. However, the Election Commission, in order to ensure level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct.Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognized political parties as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power etc.In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the Guidance of Political Parties & Candidates. We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date. Nevertheless,an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process. We hereby direct the Election Commission to take up this task as early as possible owing to its utmost importance. We also record the need for a separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society" The aforesaid landmark observations are made by the Apex Court, while adjudicating the aforesaid civil appeal in respect of the impugned election manifesto with offers of freebies of color TVs to the people by victorious Dravida Munnetra Kazhagam (DMK)parties which has now formed on success Government in Tamil Nadu. Obviously as observed above regarding to the trends of tactful distribution of freebies by our political parties, GPCC had also organized such a debatable distribution of forms for houses ‘Ghar nu Ghar’ scheme before assembly election in Gujarat and in reply to this BJP came with its election manifesto promising for 50 lakh homes and 30 lakh jobs in Dec 2012 last year. Similarly in UP promises for free laptops have been offered to win the voters, and now before 2014 parliament election comes, the BJP election campaign allies Mr. Amit Shah & others, recently today visited Ayodhya and vowed to build Ram Temple on the disputed site and to give congress free rule in the country, in disregards to the fact that the issue of Ram Temple on the disputed site is though pending and still subjudice for final adjudication before the Apex Court...In fine the offering of freebies are increasing like anything disregarding present rules and laws for free and fair elections. In such the circumstances, and looking to the aforesaid latest landmark observations by the Hon'ble Supreme Court, it is now a crucial question "How we, the law abiding voters, can justify all such Contraband Offers of Freebies like Color TVs, Houses, Jobs, Laptops, Temple etc. by political persons for their Victory in elections ???"
Tuesday, July 2, 2013
Recently yesterday, the Hon'ble Apex Court of India has reconfirmed the Rules and Laws about the Admissions of a party while adjudicating CIVIL APPEAL NO.1241 OF 2005, between Vathsala Manickavasagam & Ors -versus-N. Ganesan & Anr. and has thoroughly discussed the provisions of Section:17 of the Evidence Act and ruled as follows that- Section 17 of the Evidence Act reads as under: “S.17. Admission defined:- An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.” As far as the principle to be applied in Section 17 is concerned, the Section as it reads is an admission, which constitutes a substantial piece of evidence, which can be relied upon for proving the veracity of the facts, incorporated therein. When once, the admission as noted in a statement either oral or documentary is found, then the whole onus would shift to the party who made such an admission and it will become an imperative duty on such party to explain it. In the absence of any satisfactory explanation, it will have to be presumed to be true. It is needless to state that an admission in order to be complete and to have the value and effect referred to therein, should be clear, certain and definite, without any ambiguity, vagueness or confusion. In this context, it will be worthwhile to refer to a decision of this Court in Union of India Vs. Moksh Builders and Financiers Ltd. and others - AIR 1977 SC 409 wherein it is held as under: “…It has been held by this Court in Bharat Singh v. Bhagirath  1 SCR 606 = AIR 1966 SC 405 that an admission is substantive evidence of the fact admitted, and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions." In taking this view this Court has noticed the decision in Ajodhya Prasad Bhargava v. Bhawani Shanker - AIR 1957 All 1 (FB) also.”
In Tulshiram Sahadu Suryawanshi & Anr. v. State of Maharashtra while dealing with Section 106 of the Evidence Act, this Court observed as under:“A fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference.”
SC:"The State is the trustee of all natural resources which are by nature meant for public use and enjoyment."
Recently while adjudicating CIVIL APPEAL NO.4941 OF 2013, instituted by Association for Environment Protection, the appellant against State of Kerala and others, the Division Bench of the Hon'ble Supreme Court of India, has ruled with some landmark observations, in respect of the preservation of natural resources and environment as such that" Since time immemorial, people across the world have always made efforts to preserve and protect the natural resources like air, water, plants, flora and fauna. Ancient scriptures of different countries are full of stories of man’s zeal to protect the environment and ecology. Our sages and saints always preached and also taught the people to worship earth, sky, rivers, sea, plants, trees and every form of life. Majority of people still consider it as their sacred duty to protect the plants, trees, rivers, wells, etc., because it is believed that they belong to all living.The ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust”. It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of few creatures.Although, the Constitution of India, which was enforced on 26.1.1950 did not contain any express provision for protection of environment and ecology, the people continued to treat it as their social duty to respect the nature, natural resources and protect environment and ecology. After 26 years, Article 48-A was inserted in Part IV of the Constitution and the State was burdened with the responsibility of making an endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. By the same amendment, Fundamental Duties of the citizens were enumerated in the form of Article 51-A(Part-IV A). These include the duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures [Article 51-A(g)].The Courts in different jurisdictions have, time and again, invoked the public trust doctrine for giving judicial protection to environment, ecology and natural resources. This Court also recognized the importance of the public trust doctrine and applied the same in several cases for protecting natural resources which have been treated as public properties and are held by the Government as trustee of the people. The judgment in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 is an important milestone in the development of new jurisprudence by the Courts in this country for protection of environment. In that judgment, the Court considered the question whether a private company running tourists resort in KulluManali valley could block the flow of Beas river and create a new channel to divert the river to at least one kilometer down stream. After adverting to the theoretical and philosophical basis of the public trust doctrine and judgments,this Court observed “Our legal system — based on English common law — includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership"
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