Tag Archives: Constitution of India

Jawahar chacha in 2013.

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Every 14th November is celebrated as Children’s day in  India. It is birth day of late Prime Minister Jawahar Lal Nehru. The best part is that there is no study in schools. This certainly is a fun for children. Why and how the late Prime Minister Jawahar Lal Nehru came to become chacha Nehru is not clear but does not matter. It is however said that he used to emphasize the need to protect children and raise them as future of country. The family of chacha Nehru has taken it most seriously and every child in their family is treated as rightful future Prime Minister of the country. Better still, nobody ever had to work for living.
I was however wondering if there is an after life and I could find a way to send an email by hacking into network of afterlife, what would I write to great grand dad of this generation?
Here is my effort: Continue reading →

Occupied Field.

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Doctrine of Occupied Field is attracted in a variety of ways. For example if a special law covers a subject, general law stands automatically excluded because that field of law is already occupied.

Claim of Gratuity made  under Section 33C-2 Industrial Disputes Act instead of Payment of Gratuity Act — Validity.

It was urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose.

Supreme Court accepted this contention. There is anther example of doctrine of occupied field.

In this case regarding prohibition on manufacture and sale on Gutka (Pan Masala with chewing tobacco), under Prevention of Food Adulteration Act, it was contended that Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (Act 34 of 2003), referable to entry 52, List I and entry 18, List III to the Seventh Schedule of the Constitution of India,  occupies the entire field in relation to tobacco. Therefore the State Government could not do indirectly what it can not do directly. Supreme Court of India accepted the proposition and quashed the notification under PFA Act.

Though it was not relevant in this judgement, Article 254 of Constitution of India also deals with the aspect of occupied field and any Union/Central legislation would have effect of repealing the State Legislation on the same subject if it is in conflict with Central legislation.

Read more details about this doctrine at LawMystry.com

Justice “FOREVER”

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Article 18 of Constitution of India is  as under:

“18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.”  (Italics added)

From the use of words “military or academic” above it is clear that use of Doctor or Professor or Engineer or Major etc. is permissible but retired judges continue to use the expression ‘JUSTICE’ as a prefix to their name. The retired Chief Justice also uses Justice as prefix and not the Chief Justice. The question is can they use this prefix like a title after they demit their office? And is it Constitutional? I am open to ideas! But the question requires a debate.

The real problem will arise if somebody repeats Late M.C. Chagla and becomes a Minister or Governor after retirement or leaving the office. Then clearly he would not use this prefix as it would conflict with the official title.

© Sandeep Bhalla

Fundamental Rights

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Following is an opinion about fundamental rights:

Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.(via Know Your Rights « How Joe Sees Things.)

But that is in USA. In India things are often less than clear. According to Article 32 of Constitution of India, every citizen has a fundamental right to approach Supreme Court if any other fundamental right is violated. Now Supreme Court of India has held that this remedy is discretionary. In practice also it entertains only few direct petitions but there is no discerning principles for selection. It depends upon the discretion of judge and not the law.

So the question is: Is it really a constitutional right for citizen of India to approach Supreme Court of India? Because if it is discretionary then what are the principles which will ensure that it is not the discretion of judge but that of law?
© Sandeep Bhalla