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Legally Speaking




The Moving Finger writes and, having writ; Moves on: nor all your Piety nor Wit. Shall lure it back to cancel half a Line; Nor all your Tears wash out a word of it.

Line of poetry sometimes epitomize reams of legal prose. Justice, like equality and democracy is a word of ambiguous import and possesses a basic absolute meaning and plural relativist meaning(s). It is dependent on specific social conditions and molded by time, circumstance and cosmic changes. Indeed, history, geography and cultural anthropology often meets, to condition these concepts, their color and contours. The judicial process depends for its performance potential on the legal profession.

As Justice Krishna Iyer remarked eloquently, “social justice through law-in-action finds fulfilment only if an aware cadre of lawmen serve the system”. Not only do judges interpret the Constitution and the statutes enacted by the legislature, but sometimes they also create the law. This statement is true for all legal systems. There can be no judgement without the establishment of law. This facet of lawmaking is most strongly manifested in common law systems.  It has been developed over hundreds of years by judges. In this brief essay, we will discuss the Supreme Court decision(s) that exemplified the spirit of India’s constitutional experiment in protecting human dignity.

In the insightful words of Lord Goff, “the common law’s history is one of continual, incremental evolution over many centuries”. Without any legislative authorization, judge-made law may emerge and provide remedies to new issues in a legal system. When a judge uses philosophy as a tool in his trek towards the paths of justice, a philosophy of life and a philosophy of law help the judge in understanding his role and in executing that role. Through it, a judge can participate in the search for truth, while understanding the limitations of the human mind and the complexity of humankind. As Justice Aharon Barak says, “with the help of a good philosophy, a judge will better understand the role of the law in a society and the task of the judge within the law”. One cannot accomplish much with a good philosophy alone, yet one cannot accomplish anything without it.

Law is a tool that is intended to realize social goals. There is no consensus about the content of these goals, which is why it is necessary to find a balance among the various theories inter se. Some will regard the eclectic approach as an attempt to avoid a coherent legal theory. There will doubtless be others who regard the eclectic approach as an independent legal theory. Whatever the case, each judge should adopt for himself a position on these questions. In 2014, the historic judgement of NALSA v. Union of India strengthened the human rights and dignity of the transgender community. The Supreme Court issued crucial orders for state(s) to follow in order to preserve and promote the rights and dignity of transgender people. It was notable for upholding an individual’s right to self-identity. While concurring in the decision, Justice A.K. Sikri wondered if, because a person’s gender is assigned to them at birth, wouldn’t this defeat the purpose of self-identity?

In the NALSA case, Justice Sikri opines that the claim of “sex” after birth “violates human rights to a large extent” and “leads to an undignified life”.  The Court observed that, to make the rights of transgenders’ a reality, it is necessary to first assign them their proper ‘sex’.  In the process, society and the law have utterly disregarded transgenders’ basic human right to be classified according to their gender. They have been treated as either male or female till now. This is not only unethical because it is far from the truth, but it also degrades and violates the human rights of the transgenders.

The identification of sex as a tag since birth, according to Justice Sikri, leads to a self-identity issue. The only way to solve this dilemma is to use immediate methods of determining a person’s sexual orientation. Interestingly, the Court emphasized the third gender’s human rights and dignity, urging policymakers to uphold them. These rights include legal acknowledgment of a third gender; legal recognition for those transitioning between male and female genders, public health and sanitation, socioeconomic rights, and the right to be free of stigma and social awareness.

Any practice that discriminates against citizens is prohibited by the Constitution. Even though the Constitution does not expressly prohibit discrimination based on disability, the constitutional courts have determined that Articles 14 and 21 of the Constitution safeguard disability rights. In the case of Jeeja Ghosh v. Union of India, a Division Bench comprised of Justices Sikri and Radhakrishnan deliberated on disability rights. In the instant case, the petitioner Jeeja Ghosh was discriminated because of her disability while travelling with an airliner.  The Apex Court while taking cognizance of the issue reaffirmed the rights of individuals with disabilities and instilled confidence in them. The Justices were faced with the difficult task of determining whether foreign treaties are enforceable in India and if Article 21’s ‘right to life’ includes the ‘right to live with dignity’.

The rights that differently abled people are given under the Act of 1995 are based on the basic principle of human dignity, which is the core value of human rights and is considered as a vital aspect of the right to life and liberty. Article 21 of the Constitution establishes such a right, now known as the human right of disabled people. The Supreme Court concluded that, “right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the Right to human dignity as the fulfilment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal”.

This understanding lands us on the key intersectionality between the ideals of human rights and Article 21 through this crucial extract from the ruling. As the Constituent Assembly recognized the significance of Article 21, it was left to the Constitutional Courts to interpret it in the future. Moving on to the legacy of liberal constitutionalism, the Apex Court expanded on this concept by including the Right to differently abled persons and consequently, incorporating the concept of dignity and human rights into public law. Nobody could have predicted that the right to die with dignity would be included in Article 21 when the Constitution was written.

In the notable case of Common Cause v. Union of India, a registered society by the name of Common Cause filed a petition in the Supreme Court under Article 32. The petition argued that right to die with dignity should be recognized as a fundamental right under Article 21. The petitioner also asked the Court to make orders to the government allowing terminally ill patients to execute ‘living wills’ directing appropriate actions. However, there were differences in the opinion of the Apex Court on this issue in its earlier judgement(s) of Aruna Shanbaug v. Union of India and Gian Kaur v. State of Punjab, which needed to be settled. In the instant case, reasonable questions came from the areas of morality and the autonomy of an individual’s existence.

Justice Sikri pens in his opinion in the Common Cause case to further this cause: “When we come to the moral aspects of ‘end of life’ issues, we face the situation of dilemma. On the one hand, it is an accepted belief that every human being wants to die peacefully. Nobody wants to undergo any kind of suffering in his last days. So much so a person who meets his destiny by sudden death or easy death is often considered as a person who would have lived his life by practicing moral and ethical values”. Finally, the Supreme Court ruled that Article 21 of the Constitution guarantees the right to die with dignity. Justice Sikri’s contribution to the dilemma of human rights, privacy, and its construction with fundamental rights became a vital instrument in reaching this conclusion, particularly in establishing a line between moral authority and autonomy.

A central element of a modern democracy is the protection of constitutional, statutory, and common law human rights. Without these rights, we cannot have democracy. Take human rights out of democracy and democracy loses its soul; it becomes an empty shell. As Justice Pikis, former President of the Supreme Court of Cyprus, rightly observed, the essence of human rights lies in the existence within the fabric of the law of a code of unalterable rules affecting the rights of the individual. Human rights have a universal dimension, they are perceived as inherent in man, constituting the inborn attribute of human existence to be always enjoyed, in all circumstances, and at every place.

Furthermore, in a functioning constitutional democracy, the need of a strong Criminal Justice System (CJS) cannot be underestimated. Among the various fallacies of CJS, one that jumps out is witness protection. The ‘classic’ common law operates where there is no legislation. It provides case law to govern matters that have not been regulated through legislation. In the landmark judgment of Mahendra Chawla v. Union of India, the Supreme Court while exercising its power of judicial review brought out the Witness Protection Scheme, 2018. The Apex Court ruled that State would be accountable for efficiently executing it, till a legislation is brought out by the parliament in this regard. The realization of how powerful the effect of money, power, and status is on the CJS was a significant issue before the Court.

Justice Sikri, speaking for the court observed that, “The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens, it must ensure that during a trial in Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law”.

The Constitution is the statement of Indian identity, it was to foster the achievements of many goals, transcendent among them was that of social revolution. Through this revolution would be fulfilled the basic needs of the common man, and, it was hoped, this revolution would bring about fundamental changes in the structure of Indian society—a society with a long and glorious cultural tradition. But greatly in need, the founding fathers believed, of a powerful infusion of energy and nationalism. The theme of social revolution and human dignity also runs throughout the proceedings of the Constituent Assembly.

The Supreme Court is rightly implementing the theme as per the wishes of great founding fathers. Let us conclude this discussion with the insightful remarks of eminent legal philosopher Professor Upendra Baxi: “The rather versatile expression ‘human rights’ requires a careful conceptualization, if only because there are many ways of taking about it. ‘Human Rights’ emerge variously as ideals to be pursued, values to be fostered, policy ends to be achieved, and virtues to be cultivates in individual and collective behavior, economic activity and political conduct in the pursuit of human and social development”.

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Legally Speaking

‘The crime committed has to be considered in the remission or premature policy of the state’



The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Legally Speaking

Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court



The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Legally Speaking

Bank case rejected by Supreme Court against farmer



The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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Legally Speaking

In Company Law the duomatic principle is applicable even in Indian context: Supreme Court



The Supreme Court in the case Mahima Datla vs Renuka Datla observed and stated that it will be applicable even in the Indian context, if the same is consented by all members ‘strict adherence to a statutory requirement may be dispensed with if it is demonstrated in the Duomatic Principle.

It was therefore held that G.V. Rao never seized to be a Director of the Company in view of the acquiescence by Dr. Datla and he had withdrawn his resignation prior to its acceptance, the resignation dated 6th April 2013 was clearly not accepted by Mr. G.V. Rao, as it is clearly being showed by her conduct and there is overwhelming evidence to show that Dr. Datla had accepted Mr. G.V. Rao back into the Board, in this case the court noted.

anything the members of a company can do by formal resolution in a general meeting, they can also do informally, if all of them assent to it, as stated briefly in the Duomatic Principle as derived from the decision In Re: Duomatic Ltd further the court noted the case of Salmon v. Salmon Co. Ltd, as it was held in that case if a company is bound in a matter intra vires by the unanimous agreement of its members. As In Re the court noted that the Duomatic Principle as derived from the decision.

Mr. G.V. Rao continued to carry on as the Director in view of the acquiescence by Dr. Renuka Datla? And weather can the Duomatic Principle can be invoked to state that the issue of resignation of the Director had lapsed, as one of the issues being raise in the appeal filled before the Apex Court.

The High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh allowed the Company appeal filed by Dr. Datla and the court further issued the various directions as this petition was dismiised by the Board as only to ensure Dr. Datla doesn’t have sufficient shareholding to maintain a petition under Sections 397 and 398 of the Companies Act, 1950, as it was being approached by Dr. Datla to the Company Law Board complaining that the holding of board meetings was illegal as an attempt was made to increase the number of members in the Company.

there is no protest by Dr. Renuka Datla regarding attendance of Mr. G.V. Rao. Dr. Renuka Datla also participated in the Board Meetings dated 22nd August 2013 and 25th September 2013, without any protest for continuation of Mr. G.V. Rao as its Director as in the resolution passed. The latter which was placed in the meeting of the Board on 9th April 2013, seeking withdrawal of his resignation as on 6th April 2013, G.V Rao submitted his resignation letter and further which it was later withdrawn by G.V Rao on 9th April 2013. As on 20th March 2013 the late Dr. Vijay Kumar Datla as the directors of the Company were Biological E. Ltd are Dr. Renuka Datla and one G.V Rao.

The bench comprising of Justice Vineet Saran and the justice JK Maheshwari clarified that the said principle is only applicable in those cases wherein bona fide transactions are involved and that ‘Fraud’ is a clear exception.

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Legally Speaking




The Supreme Court in the case Budhadev Karmaskar v. State of West Bengal and Or’s observed that women of older age groups are being forced into prostitution after the onset of the COVID-19 pandemic and further the court ordered the State of West Bengal to look into the issue that in South 24 Parganas District of West Bengal.

The traffickers who were finding it difficult to get hold of young women due to the lockdown had shifted focus and by taking advantage of their acute poverty which was being worsened by the pandemic engaged older women from West Bengal’s costa regions in prostitution. An article was referred by the Amicus, The Article covered the plight of the women in the Sunderban Delta region of West Bengal and stated and noted that the pandemic coupled with climate change is now pushing older women and even the grandmothers into the trade, the Article was published on the website of The Print.

The pandemic that has stretched on for more than two years, it was said by the activists working in the area and this made them vulnerable to traffickers who found it difficult to procure young women and minor girls and shifted focus to middle aged women from West Bengal’s coastal regions due to their abject poverty.

No precautionary measure are taken by the State Government though the State Government is aware it further request the State Government to look upon the issue as due to the pandemic In South 24 Parganas (West Bengal), aged women are being used for this purpose for their poverty.

The Bench asked the Counsel representing the State of West Bengal to look into this issue and respond when the matter is put up for hearing on 05.17.2022., At the request of the Amicus the bench directed.

The Bench Comprising of Justice L. Nageswara Rao and the justice B.R. Gavai observed that the older women in South 24 Parganas District of West Bengal, from poor families, especially after the onset of the pandemic, are being pushed into prostitution and the Amicus further alleged though the State Government aware of the same but the State Government have not taken any precautionary measures. The Bench noted while hearing a plea seeking various benefits for sex workers across the country, Amicus Curaie, Mr. Piyush K. Roy apprised it that, as per news reports.

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Supreme Court sets aside POCSO conviction; TN custom is of marriage of girl with maternal uncle



The Supreme Court in the case K Dhandapani vs State observed while hearing a plea that after noticing that he had married the prosecutrix and had two children, a man accused in a POCSO case, the court set aside the conviction.

The Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. Thereafter the Court said that it has been informed of the custom in Tamil Nādu of the marriage of a girl with the maternal uncle. if the accused-appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move for modification of this Order, further being clarified by the Court. The bench is of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court, while considering the facts and circumstances of the Case.

The Court observed, while allowing the appeal that the marriage between the accused and the prosecutrix is not legal and it was submitted by the state in an appeal that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and the second child was born when she was 17 years.

the prosecutrix stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life, the statement given by her was being noticed by the Court. the allegations submitted by the

the appellant against him was that he had physical relations with the prosecutrix on the promise of marrying her and that he married the prosecutrix and they have two children, submitted before the Apex Court.

Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012 and reading with the Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n). the maternal uncle of the prosecutrix who is the accused in the said case was being convicted under the said sections and was sentenced to undergo rigorous imprisonment for a period of 10 years by the Madras High Court.

The Bench comprising of Justice L Nageswara Rao and the justice B R Gavai observed while rejecting the objection raised by the State which contended that the marriage might be only for the purpose of escaping punishment that the court have been informed about the custom in Tamil Nādu of the marriage of a girl with the maternal uncle and on the ground of reality and to disturb the happy family life of the appellant and the prosecutrix, The Court cannot shut its eyes.

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