Performance bond and performance guarantee

Supreme Court in United Commercial Bank case, (1981) 3 SCR 300 . There A.P. Sen, J. speaking for the Court, said (pages 323 and 324):

The rule is well established that a bank issuing or confirming a letter of credit is not concerned with the underlying contract between the buyer and seller. Duties of a bank under a letter of credit are created by the document itself, but in any case it has the power and is subject to the limitations which are given or imposed by it, in the absence of the appropriate provisions in the letter of credit.

It is somewhat unfortunate that the High Court should have granted a temporary injunction, as it has been done in this case, to restrain the appellant from making a recall of the amount of ` 85,84,456 from the Bank of India in terms of the letter of guarantee or indemnity executed by it. The courts usually refrain from granting injunction to restrain the performance of the contractual obligations arising out of a letter of credit or a bank guarantee between one bank and another. If such temporary injunctions were to be granted in a transaction between a banker and a banker, restraining a bank from recalling the amount due when payment is made under reserve to another bank or in terms of the letter of guarantee or credit executed by it, the whole banking system in the country would fail.

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Established means

Article 30(1) of the Constitution of India has since long been the subject matter of scrutiny and exposition in a number of decisions of the Hon’ble Supreme Court. In Azeez Basha -vrs. Union of India : AIR 1968 SC 662, it has been held:

“(19) xx xx xx xx xx It is to our mind quite clear that Article 30 (1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. We are not prepared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words “establish and administer” in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it.

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Lexicon of alcohol and drug terms: World Health Organization

Absolute alcohol Ethanol containing not more than 1% by mass of water. See also: alcohol.

Abstinence Refraining from drug use or (particularly) from drinking alcoholic beverages, whether as a matter of principle or for other reasons. Those who practise abstinence from alcohol are termed “abstainers”, “total abstainers”, or-in a more old-fashioned formulation-“teetotallers”. The term “current abstainer”, often used in population surveys, is usually defined as a person who has not drunk an alcoholic beverage in the preceding 12 months; this definition does not necessarily coincide with a respondent’s self-description as an abstainer.

The term “abstinence” should not be confused with “abstinence syndrome, an older term for withdrawal syndrome.See also: sobriety; temperance I

Abstinence, conditioned See withdrawal, conditioned.

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Definition of crimes against humanity

1. For the purpose of the present draft articles, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation or forcible transfer of population;
(e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) torture;
(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph;
(i) enforced disappearance of persons;
(j) the crime of apartheid;
(k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

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Appeal Right of

It is well known that right of appeal is not a natural or inherent right.

It cannot be assumed to exist unless expressly provided for by statute.

Being a creature of statute, remedy of appeal must be legitimately traceable to the statutory provisions.

In the case of Maria Cristina De Souza Sadder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92, Supreme Court held as under:

5 …It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof.

The principle of ‘appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure’ is now well settled. The right of appeal may be lost to a party in face of relevant provisions of law in appropriate cases. It being creation of a statute, legislature has to decide whether the right to appeal should be unconditional or conditional. Such law does not violate Article 14 of the Constitution. An appeal to be maintainable must have its genesis in the authority of law. Reference may be made to M. Ramnarain Private Limited v. State Trading Corporation of India Limited, (1983) 3 SCC 75 and Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad, (1999) 4 SCC 468. Right of appeal is neither a natural nor inherent right vested in a party. It is substantive statutory right regulated by the statute creating it. The cases of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 and Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749 may be referred to on this point.

Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. In absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party.

Irretrievable breakdown of marriage means

Ashok Hurra vs. Rupa Bipin Zaveri etc., reported in (1997) 4 SCC 226, this Court while dealing with a matrimonial matter quoted few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955 – “Irretrievable Breakdown of Marriage” – dated 7.4.1978.

We deem it appropriate to reproduce some excerpts from the said report as under:

“Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce.

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Justice: the concept of

Unfolding the word: Indian Experience

In-Town v. Eisner (1917) 245 US 418, Mr. Justice Holmes said that “a word is not a crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in colour and content according to ten circumstances and the time in which it is used”.

The anxiety of India Constitution makers to ensure that justice promised in the Preamble of the Constitution is pure and is not in any manner polluted by executive or political interference is writ large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respectively, manifesting the confidence of the people in the courts’ ability to do justice[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]

In A. K. Gopalan v. State of Madras, (1950) SCR 88, that in Art. 21, the word ‘law’ has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice, and ‘procedure established by law’ means procedure established by law made by the State, that is to say, by the Union Parliament or the Legislatures of the States. Section 4 has been enacted by Parliament and therefore it must be held that what it lays down is a procedure established by law.

The High Court has dealt with this contention. It has rightly pointed out that the amplitude of the words “due course of justice” used in Section 13 is wider than the words “due course of any judicial proceeding” or “administration of justice” used in sub-clause (ii) or (iii) of Section 2 (c). We have held that the contempt of court committed by the appellant falls both under sub-clause (i) and also within the amplitude of sub-cl. (iii) If the act complained scandalizes the judicial officer in regard to the discharge of his judicial functions, it thereby substantially interferes or tends to interfere with the “due course of justice” which is a facet of the broad concept of the “administration of justice”, and as such, is punishable under Section 13[AIR 1981 SC 755]

In N. Narayanan v. Semmalai, (1980) 1 SCR 571 the same principle has been reiterated. That was a case where the difference of votes between the candidate declared elected and his nearest rival. who filed an election petition was only 19 votes and which figure would have come down to 9 votes only if the postal ballots were included. Even so this Court after referring to a number of decisions and Halsbury’s Laws of England and Fraser on Law of Parliamentary Elections and Election petitions held that without their being an adequate statement of all the material facts on which the allegations of irregularity or illegality in. counting of votes are founded and such averments being backed by acceptable evidence and the Court trying the petition being prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties, an order of recount of votes cannot be passed[AIR 1989 SC 640 ]

In S. Nagaraj v. State of Karnataka, JT 1993 (5) SC 27 to which one of us (S. Ratnavel. Pandian, J.) was a party, the following observation has been made while emphasising the power of this Court either recalling or reviewing its own order:

“Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Art. 137 of the Constitution. And C1. (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review and order in civil proceedings on grounds analogous to Order XLVII, Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”[AIR 1994 SC 268]

Reading Guide

  1. Aristotle (c.mid 4th century BC) Nichomachean Ethics, trans. D. Ross, revised J.L. Ackrill and J.O. Urmson, Oxford: Oxford University Press, 1980.
  2. Barry, B. (1995) Justice as Impartiality, vol. 2, A Treatise on Social Justice, Oxford: Clarendon Press.
  3. Cicero, M.T. (c.54-51 BC) De Re Publica, trans. C.W. Keyes, Cambridge, MA: Harvard University Press and London: Heinemann, 1928.
  4. D’Entrèves, A.P. (ed.) (1948) Aquinas: Selected Political Writings, Oxford: Blackwell.
  5. Dworkin, R. (1981) ‘What is Equality? Part 1: Equality of Welfare; Part 2: Equality of Resources’, Philosophy and Public Affairs
  6. Gauthier, D. (1986) Morals By Agreement, Oxford: Clarendon Press.
  7. Hirsch, A. von (1990) ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?”’, Criminal Law Forum 1 (Winter)
  8. Hobbes, T. (1651) Leviathan, ed. R. Tuck, Cambridge: Cambridge University Press, 1991.
  9. Hume, D. (1739-40) A Treatise of Human Nature, ed. L.A. Selby-Bigge, Oxford: Clarendon Press, 1978.(See especially Book 3 Part 2 for a discussion of justice.)
  10. Hume, D. (1748 and 1751) Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. L.A. Selby-Bigge, Oxford: Clarendon Press, 1975.
  11. Kymlicka, W. (1990) Contemporary Political Philosophy: An Introduction, Oxford: Clarendon Press.
  12. Marx, K. and Engels, F. (1968) Marx/Engels: Selected Works in One Volume, London: Lawrence & Wishart. (Contains extracts of many of Marx’s most famous tracts. For a denunciation of the whole idea of justice see the ‘Critique of the Gotha Programme’)
  13. Mill, J.S. (1861) ‘Utilitarianism’, Collected Works of John Stuart Mill, vol. X, Essays on Ethics, Religion and Society, ed.
  14. J.M. Robson, Toronto: University of Toronto Press, 1969.
  15. Nagel, T. (1991) Equality and Partiality, New York: Oxford University Press.
  16. Noddings, N. (1984) Caring: A Feminine Approach to Ethics and Moral Education, Berkeley, CA: University of California Press.(Leading feminist theorist who argues for the replacing of the ethic of justice with an ethic of care.)
  17. Nozick, R. (1974) Anarchy, State, And Utopia, New York: Basic Books.
  18. Plato (c.380-367 BC) Republic, trans. R. Waterfield, Oxford: Oxford University Press, 1993.
  19. Rawls, J.B. (1971) A Theory of Justice, Cambridge, MA: Harvard University Press.
  20. Rawls, J.B. (1993) Political Liberalism, New York: Columbia University Press.
  21. Rousseau, J.-J. (1755) A Discourse on Inequality, trans. M. Cranston, armondsworth: Penguin, 1984.
  22. Sandel, M.J. (1982) Liberalism and the Limits of Justice, Cambridge: Cambridge University Press.
  23. Scanlon, T.M. (1982) ‘Contractualism and Utilitarianism’, in A. Sen and B. Williams (eds) Utilitarianism and Beyond, Cambridge: Cambridge University Press.
  24. Scanlon, T.M. (1988) ‘The Significance of Choice’, in S.M. McMurrin (ed.) The Tanner Lectures on Human Values, vol. 8, Salt Lake City, UT: University of Utah Press, 151-216.
  25. Waldron, J. (ed.) (1987) Nonsense on Stilts, London: Methuen.
  26. Walzer, M. (1983) Spheres of Justice: A Defence of Pluralism and Equality, New York: Basic Books; London and Oxford: Blackwell.

Consultation meaning of

Subba Rao, J. (as he then was) in R. Pushpam v. State of Madras, AIR 1953 Madras 392 at 393. The learned judge after reproducing the passage proceeded to observe:

“It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place having regard to the substance of the events. The word ‘consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consultor to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultation between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not and cannot be a performance of duty if no consultation is made and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act.”

The view expressed in Fletcher’s case (supra) on the content of consultation was affirmed in Rollo v. Minister of Town and Country Planning, (1948) 1 All ER 13. In Port Louis Corporation v. Attorney General, Mauritius, (1965) Appeal Cases 1111 the Judicial Committee of the Privy Council observed:”consultation” cannotes an exchange of ideas, information and views, in which each side has a full opportunity of contributing to such an exchange; it is not a one way process but a two way process. According to their Lordships it is essential for the executive to advice with an open mind, that is, open to persuasion and open to appreciate the advice tendered and if one may add eschew his own point of view if satisfied about its weakness. The requirement of consultation is never to be taken perfunctorily or as a mere formality. Again in R. v. Secretary of State for Social Services, Ex parte Association of Metropolitan Authorities, (1986) 1 All ER 164, Webster, J. observed at page 167 as follows:

“there is no general principle to be extracted from the case law as to what kind or amount of consultation is required before delegated legislation, of which consultation is a precondition, can validly be made. But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or adviced and as to which the party consulted might have relevant information or advice to offer.”[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]

Judicial independence meaning of

It is well-known that the concept of judicial independence in this country owes its origin to the development of this concept in England. In England for centuries that Monarch was the repository of all powers and the courts set up by him were accountable to none except him, he being an integral part of the system of administration of justice. This was a purely executive arrangement. However, during the 17th century things began to change following a clash between the Monarch and the Parliament, each vying for supremacy. In this tussle for supremacy both sought cover under law which brought the judiciary into sharp focus since it alone was competent to demarcate the functional boundaries between the privileges of the Crown and those of the Parliament. It is this situation which gave birth to the doctrine of judicial independence. Both the Crown and the Parliament realised the significance and the value of an independent judiciary. Yet the English Parliament was not prepared to loosen its grip over the judiciary and it fell to the lot of Chief justice Coke to assert the functional freedom of the judiciary.

When Parliament realised that the Crown was able to assert because of the pleasure doctrine, it enacted the Settlement Act of 1700 whereby security of tenure was provided by making it subject to good behaviour and removal upon address by both Houses of Parliament. Judges’ salaries were to be ascertained and established. Thus the judiciary in England became independent of the Crown as well as the Parliament. But the situation was different in British colonies. Even though the English judiciary secured independence, neither the Crown nor the Parliament was prepared to concede it to the colonies. In 1759 when the Pennsylvania Assembly enacted a law requiring an address of the Assembly for removal of a Judge, the Privy Council disapproved of the measure as an attempt to make the judiciary dependent on the Colonial Assembly.

Since the British Parliament was supreme and could enact a law concerning colonies which would not be subject to court scrutiny, the unrepresented American colonists suspected British intentions. Hence when they attained freedom they favoured total separation of all the three branches of Government so that each would operate as a check on the exercise of power by the other. The American concept of judicial independence, therefore, differs somewhat from the British concept. Our founding fathers were aware of these developments and, as we shall presently show, they steered a middle course.[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]

Separation of Power meaning of

The concept of separation of powers is a well-known fundamental political maxim which many modern democracies have adopted. Our Constitution has not strictly adhered to that doctrine but it does provide for distribution of powers to ensure that one organ of the government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial system free from external as well as internal pressures. Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies.

Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every Judge to the people of this great country. There can be no two opinions at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society. Even though on the question that our judiciary should be independent of the executive and the legislature there is no divergence of views at the Bar, there was some difference of opinion on the actual content of the concept. Hence a brief look into the historical background of the development of this concept in our country[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]