Tuesday, January 29, 2013

Landmark Observations of the Apex Court in respect of Custom

In the matters of CIVIL APPEAL NO. 2058 OF 2003, regarding to the exclusive right pertaining to an adopted decedent to carry the Palki and Padukas of Sri Sant Eknath Maharaj from Paithan to Pandharpur at the time of Ashadi Ekadashi, the supreme court of India has today cuncluded certain landmark observations in respect of custom as such that " Custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom. Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence" In Salekh Chand (supra), the Apex Court held as under: “Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy.” In Bhimashya & Ors. v. Smt. Janabi @ Janawwa, (2006) 13 SCC 627, this Court also held: “A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm……it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. Custom is authoritative, it stands in the place of law, and regulates the conduct of men in the most important concerns of life; fashion is arbitrary and capricious, it decides in matters of trifling import; manners are rational, they are the expressions of moral feelings. Customs have more force in a simple state of society. Both practice and custom are general or particular but the former is absolute, the latter relative; a practice may be adopted by a number of persons without reference to each other; but a custom is always followed either by limitation or prescription; the practice of gaming has always been followed by the vicious part of society, but it is to be hoped for the honour of man that it will never become a custom.”

Monday, January 28, 2013

The Apex Court calls for an independent conclusion by High Court

While adjudicating CRIMINAL APPEAL NOs. 1278-1279 OF 2010, in the matters of the Hon'ble Supreme Court of India has observed today that "It is the practice of the High Court to be satisfied on the facts as well as the law of the case, that the conviction is right, before it proceeds to confirm that sentence. In other words, the High Court has to come to its own independent conclusion as to the guilt or innocence of the accused, independently of the opinion of the Judge."

Gujarat High Court calls for a new trend for successful prosecution

While dismissing an appeal filed by the state government against acquittal in a rape case, the division Bench of Mr Justice DH Waghela and Mr Justice GR Udhwani also called for guidelines for the IOs and prosecutors, and has said in a recent judgement that “It is high time the investigating officer as well as the prosecutor concerned are held accountable, and appropriate actions taken against them after affording them opportunity of being heard and explain the circumstances leading to failure of the prosecution,” The High Court has also added that "The prosecution fails mainly because of incompetence, disinterest or complicity of the investigation officer in failing to secure necessary evidence." "Merely initiating prosecution and producing evidence before courts or filing appeals do not meet the ends of justice. Failure of the prosecution in genuine cases...erodes the faith of the people in the rule of law."

Wednesday, January 2, 2013

SC rejected the plea that Governor is bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister

Dismissed Pleas and Contention, raised by Mr. K.K. Venugopal, Mr. Soli Sorabjee, Dr. Rajeev Dhavan, Mr. Mihir J. Thakore, and Mr. Yatin Oza, learned senior counsel appearing for the appellants, State of Gujarat in CIVIL APPEAL NOS. 8814-8815 OF 2012 in respect of the appointment of Lokayukta in Gujarat before the Apex Court were in general as such that " the Governor, being a titular head of State, is bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister, and that the actions of the Governor, indulging in correspondence with, and issuing directions to other statutory authorities, are contrary to the principles of Parliamentary democracy, and thus, the Governor ought not to have corresponded with, and consulted the Chief Justice of the High Court of Gujarat directly." Per contra, Mr. R.F. Nariman, learned Solicitor General of India, Mr. P.P.Rao, Dr. A.M. Singhvi, and Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf of the respondents, have opposed the appeals, contending that the Governor had acted as a statutory authority under the Act, 1986, and not as the head of the State, and thus, she was not required to act in accordance with the aid and advice of the Council of Ministers. And it is a fact that the appellants State of Gujarat and others have in fact, been avoiding the appointment of a Lokayukta for a period of more than nine years, for which there can be no justification. After considering rival submissions of both the parties to this appeal, the Hon'ble Supreme Court of India, marked this appeal as matter of legal issues of great public importance, such as, what is the meaning of the term ‘consultation’, for which SC said that no straight-jacket formula can be laid down in this regard, but ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess, in relation to each other, and then arriving at a decision. The Hon'ble Apex Court has also brought more light over the Preamble of the Gujarat Lokayukta Act, 1986 that Lokayukta has two duties, firstly, to protect honest public functionaries from false complaints and allegations, and secondly, to investigate charges of corruption filed against public functionaries. Hence, investigation of such charges of corruption against public functionaries is not the only responsibility that the Lokayukta is entrusted with. And under such significant circumstances, an exception may arise while considering the grant of sanction required to prosecute the Chief Minister, or a Minister, where, as a matter of propriety, the Governor may have to act upon his own discretion. Similar would be the situation in a case where, the Council of Ministers disables or dis-entitles itself from providing such aid and advice. So the Apex Court summarized to the effect that the Governor is bound to act on the aid and advice of the Council of Ministers, unless he acts as, “persona designata” i.e. “eo nomine”, under a particular statute, or acts in his own discretion under the exceptions carved out by the Constitution itself. The Apex Court emphasized with this observation while adjudicating this legal battle and concluded that "Leaving the finality of choice of appointment to the Council of Ministers, would be akin to allowing a person who is likely to be investigated, to choose his own Judge." The Hon'ble Apex Court finally concluded with harsh observations that a very sorry state of affairs, revealing that in the State of Gujarat, the post of the Lokayukta has been lying vacant for a period of more than 9 years, as it became vacant on 24.11.2003, upon the resignation of Justice S.M. Soni from the said post. Since then a few half-hearted attempts were made to fill up the post of the Lokayukta, but for one reason or another, the same could not be filled and The recommendation of the Chief Justice suggesting only one name, instead of a panel of names, is in consonance with the law laid down by this Court and none of the objections raised by the Chief Minister, are tenable at all, hence This appeals lack merit and are accordingly dismissed.

whether State had a right to avoid the appointment of "Lokayukta" simply by upraising legal battles at the cost of our public money ?

In a setback to Gujarat Chief Minister Narendra Modi, the Supreme Court today has upheld the verdict of Gujarat High Court in respect of the appointment of Justice (retd) R.A. Mehta as the Lokayukta of the state. A Division Bench of the Apex Court comprising Hon'ble Justice Mr. B.S. Chauhan and Justice Mr. F.M. Ibrahim Kalifulla has said in this landmark judgment that "Governor Kamla Beniwal appointed Justice Mehta as the state's Lokayukta after due consultation with the Chief Justice of Gujarat High Court as provided under the statute." Pronouncing the judgement, Justice Mr. Chauhan said: "The Governor has to act in consultation with Chief Justice of High Court which has been done in this case." The Hon'ble Supreme Court has rejected all those contention made in the appeal petition by the government of Gujarat in respect of the appointment of Justice Mehta as "void, ab-initio as being ultra vires Section 3 of the Act (Gujarat Lokayukta Act, 1986) read with Article 163 of the Constitution." Now it is become another vital question of facts and of laws whether the State of Gujarat or its Chief Minister had a right to avoid this lawful appointment of "Lokayukta" in Gujarat simply by upraising and drawing with such the legal battles and litigations at the cost of our public money....??!!

Popular Posts on our Law Office Blogs