Friday, September 27, 2013
Today while granting WRIT PETITION (CIVIL) NO. 161 OF 2004, moved by People’s Union for Civil Liberties & anothers, the Supreme Court of India has considered a dire need of negative voting in the present scenario of our Country and has confirmed a Right to Reject all the candidates while excercise his voting rights through its landmark Judgment. The Apex Court has concluded that " Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country. For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting. No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive.Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal. duress or coercion. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons. Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity"
Friday, September 20, 2013
Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly. In the Vedic period, In the Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realized. Marriage is highly revered in India and we are a Nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born out of their union ??? [CIVIL APPEAL NO.8264 OF 2013 - KOLLAM CHANDRA SEKHAR v/s KOLLAM PADMA ]
Saturday, September 14, 2013
The Hon'ble Supreme Court of India in Mukund Lal Bhandari’s case (supra) observed about the objects and the Standard of Proof necesary for the Freedom Fighters' Pension Scheme as follows: “The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc. are also the other benefits which have been made available to them for quite sometimes now The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of “beyond reasonable doubt”. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence."
Monday, September 9, 2013
While adjudicating **Pinakin Rawal v/s State of Gujarat CR.APPEAL NO.811/2004]****the Hon'ble Supreme Court has observed in its landmark judgment that : " Alienation of affection by a stranger, if proved, is an intentional tort i.e. interference in the marital relationship, with intent to alienate one spouse from the other. Alienation of affection is known as “Heart Balm” action. Anglo-Saxon common law on alienation of affection has not much roots in this country, the law is still in its nascent stage. Anglo Saxon based action against third parties involving tortuous interference with the marital relationship was mainly compensatory in nature which was earlier available to the husband, but, of late, a wife could also lay such a claim complaining of alienation of affection. The object is to preserve marital harmony by deterring wrongful interference, thereby to save the institution of marriage. Both the spouses have a valuable interest in the married relationship, including its intimacy, companionship, support, duties, affection, welfare of children etc. We notice, in this country, if the marital relationship is strained and if the wife lives separately due to valid reasons, the wife can lay a claim only for maintenance against the husband and if a third party is instrumental for disrupting her marriage, by alienating her spouse’s affection companionship, including marital obligations, seldom, we find the disgusted spouse proceeds against the intruder into her matrimonial home. Possibly, in a given case, she could question the extent, that such injuries can be adequately compensated, by a monetary award. Such an action, of course, may not protect a marriage, but it compensates those who have been harmed.We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse’s loss of other spouse’s affection. Mere acts, association, liking as such do not become tortuous.
Saturday, September 7, 2013
While adjudicating WRIT PETITION (C) NO.548 OF 2012 in the matters of Civil Appeal No.10660 of 2010, under Article 136 of the Constitution of India by special leave, praying for a Court monitored investigation by the Central Bureau of Investigation (CBI) or by a Special Investigating Team into what was described as the 2G Spectrum Scam and also for a direction to investigate the role played by A. Raja, the then Union Minister for Department of Telecommunications (DoT), senior officers of DoT, middlemen, businessmen and others, the Hon'ble Supreme Court of India has recently dismissed this writ petition, with a clear observation that there are no good reason either to frame guidelines to be followed by a constitutional court in relation to monitoring of criminal investigation on 3rd September 2013, in respect of the aforesaid 2G Spectrum Scam. While passing this final order, the Hon'ble Apex Court has also well discussed about the COURT MONITORED INVESTIGATION as follows: "Monitoring of criminal investigation is the function of investigating agency and not that of the Court – either of the superior Court or of the trial Court. But unsolved crimes, unsuccessful prosecution, unpunished offenders and wrongful convictions bring our criminal justice system in disrepute. Crores and crores of tax payers’ money is being spent for investigating crimes in our country since every such incident is a crime against the society. When the persons involved in the crime wield political power and influence, the possibility of putting pressure on the investigating agency, which is no more independent in our country, is much more. Common people will be left with the feeling that they can get away with any crime which tarnish the image not only of the investigating agency but judicial system as well. Once investigation fails, Court will face with a fait accompli. Proper and uninfluenced investigation is necessary to bring about the truth. Truth will be a casualty if investigation is derailed due to external pressure and guilty gets away from the clutches of law. More and more demands are now coming before the Courts for its monitoring of investigation relating to crimes committed by influential persons and persons who have political influence, with the apprehension that they could derail the investigation. Courts in public interest sometime have to take such a course in the larger public interest. That burden this Court has discharged in various cases like Vineet Narayan’s case and Gujarat Communal Riot’s case, etc. This Court has taken the consistent view that once charge-sheet is submitted in the proper Court, the process of Court monitoring investigation comes to an end and it is for that Court to take cognizance of the offence and deal with the matter."
Tuesday, September 3, 2013
Whether Verdict of Supreme Court is supreme or the Exercise of Gujarat Government in passing a Controversial Bill ???
Gujarat Governor Kamla Beniwal has now declined to sign and give her assent and has returned for review the Gujarat Lokayukta Aayog Bill 2013, which has been newly passed by the Gujarat state Assembly in April this year, after the Hon'ble Supreme Court dismissed all litigations, initiated by Gujarat Governments and had asked the state government to start the process of filling up the post. But without proceeding to fill the post of Lokayukta in Gujarat, since last seven years, the Gujarat state Assembly, ruled by BJP totally changed the whole format of the Gujarat Lokayukta Aayog Bill, with a view to curtailing the powers of Governor and Chief Justice of the High Court in the appointment of the corruption watchdog in Gujarat. This has set the stage for a fresh confrontation and add more fire in the whole controversies against the Chief Minister Narendra Modi. The vital question of laws also arises Whether Verdict of Supreme Court is supreme or the controversial exercise of Gujarat Government in passing Newly Draft Lokayukta Bill is bonafide and positive ???
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