The position of the Chief Justice of a High Court in India

Posted on April 12, 2018 by Advocatetanmoy in ENCYCLOPEDIA and tagged ENCYCLOPEDIA OF INDIAN LAW, Primacy of Chief justice.

Indian Law Encyclopedia

The position of the Chief Justice of a High Court was elucidated in a judgment of a three judge Bench of this Court in State of Rajasthan v Prakash Chand. During the course of the judgment the following broad conclusions were formulated in regard to the position of the Chief Justice:

“(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.

(2) That the Chief Justice is the Master of the Roster. He alone has the prerogative to constitute Benches of the court and allocate cases to the Benches so constituted.

(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the Bench themselves and one or both the Judges constituting such Bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.

(5) That the Chief Justice can take congnizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.

(6) That the puisne Judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice. “

Recently, a Constitution Bench of Supreme Court in Campaign for Judicial Accountability and Reforms v Union of India held that the principle which was noticed and recognised in the decision of this court in Prakash Chand (supra) in relation to the jurisdiction and authority of the Chief Justice of the High Court “must apply proprio vigore as regards the power of the Chief Justice of India”.

The position of the Chief Justice was reiterated with the following observations:

“The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the Master of the Roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench.

To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible. An institution has to function within certain parameters and that is why there are precedents, rules and conventions. As far as the composition of Benches is concerned, we accept the principles stated in Prakash Chand [State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1] , which were stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench.”

Chief justice is the Master of Roster

The Chartered High Courts of Allahabad, Bombay, Calcutta and Madras have a long history of over a hundred and fifty years. Each of them has marked its sesquicentennial. Many High Courts are not far behind in vintage. Some are of a recent origin. Over the course of their judicial history, High Courts have evolved conventions in matters governing practice and procedure. These conventions provide guidance to the Chief Justice in the allocation of work, including in the constitution of benches. The High Courts periodically publish a roster of work under the authority of the Chief Justice. The roster indicates the constitution of Benches, Division and Single.

The roster will indicate the subject matter of the cases assigned to each bench. Different High Courts have their own traditions in regard to the period for which the published roster will continue, until a fresh roster is notified. Individual judges have their own strengths in terms of specialisation. The Chief Justice of the High Court has to bear in mind the area of specialisation of each judge, while deciding upon the allocation of work. However, specialisation is one of several aspects which weigh with the Chief Justice. A newly appointed judge may be rotated in a variety of assignments to enable the judge to acquire expertise in diverse branches of law. Together with the need for specialisation, there is a need for judges to have a broad-based understanding of diverse areas of law. In deciding upon the allocation of work and the constitution of benches, Chief Justices have to determine the number of benches which need to be assigned to a particular subject matter keeping in view the inflow of work and arrears.

The Chief Justice of the High Court will have regard to factors such as the pendency of cases in a given area, the need to dispose of the oldest cases, prioritising criminal cases where the liberty of the subject is involved and the overall strength, in terms of numbers, of the court. Different High Courts have assigned priorities to certain categories of cases such as those involving senior citizens, convicts who are in jail and women litigants. These priorities are considered while preparing the roster. Impending retirements have to be borne in mind since the assignment given to a judge who is due to demit office would have to be entrusted to another Bench when the vacancy arises. These are some of the considerations which are borne in mind. The Chief Justice is guided by the need to ensure the orderly functioning of the court and the expeditious disposal of cases.

The publication of the roster on the websites of the High Courts provides notice to litigants and lawyers about the distribution of judicial work under the authority of the Chief Justice. This Court was constituted in 1950. In the preparation of the roster and in the distribution of judicial work, some of the conventions which are adopted in the High Courts are also relevant, subject to modifications having regard to institutional requirements.[ Asok Pande Vs. Supreme Court of India through its Registrar and Ors. in Writ Petition (Civil) No 147 of 2018]

List of Words Start with B in Indian Law Encyclopedia

Posted on February 14, 2018 by Advocatetanmoy in ENCYCLOPEDIA and tagged ENCYCLOPEDIA, ENCYCLOPEDIA OF INDIAN LAW, INDIAN LAW ENCYCLOPEDIA.

List of law topics & legal articles

Indian Law Encyclopedia

BACKWARD CLASS
BAD CHARACTER
BAD DEBT
BAD FAITH
BADLI WORKMAN
BAIL
BAILMENT
BALANCE
BALANCE OF CONVENIENCE
BALANCE SALE CONSIDERATION
BALLISTIC EXPERT OPINION
BANK GUARANTEE
BANK LOAN
BANKRUPTCY
BANKER
BANKER BOOK OF EVIDENCE
BANKING DOCUMENTS
BAR COUNCIL
BAR OF ACQUIESCENCE
BAR OF JURISDICTION
BAR OF LIMITATION
BAR OF SUIT
BAR TO SPECIFIC PERFORMANCE
BASIC FEATURE
BASIC PAY
BASIC RULE OF CONTRACT
BASIC WAGE
BATTERY
BEGER
BEING ILLEGAL
BENAMI TRANSACTION
BENEFICIAL PROVISION
BENEFICIARY
BENEFIT OF DOUBT
BENEFIT OF PART PERFORMANCE
BENGAL MONEY LENDERS ACT
BENGALI CALENDAR
BEQUEST
BEST EVIDENCE RULE
BEYOND REASONABLE DOUBT
BIAS
BIGAMY
BILATERAL
BILL OF EXCHANGE
BILL OF LANDING
BILLS
BINDING NATURE
BIOLOGICAL DIVERSITY
BIRTH AND DEATH
BIRTHRIGHT
BLACKMAIL
BLANK TRANSFER
BLENDING
BLOOD MARK
BLOOD TEST
BOARD
BODY CORPORATE
BODY OF CRIME
BONA VACANCIA
BONAFIDE CLAIM
BONAFIDE REQUIREMENT
BONDED LABOUR
BONDS
BONUS
BOUNDARIES OF STATE
BOVINE ANIMALS
BREACH
BREACH OF PEACE
BREVITY
BRIBERY
BRICKFIELD
BRIDE BURNING
BRITISH INDIA
BUDDHIST LAW OF GIFT
BUILDING
BUILDING BYE-LAWS
BULLION AND SPECIE
BURDEN
BURDEN OF PROOF
BURIAL GROUND
BUSINESS
BUSINESS EFFICIENCY
BUSINESS VENTURE
BUT NOT THEREAFTER
BUY BACK
BUYER AND SELLER
BY STANDARD

Abandonment-[ Indian Law Encyclopedia]

Posted on February 12, 2018 by Advocatetanmoy in ENCYCLOPEDIA and tagged ENCYCLOPEDIA OF INDIAN LAW, INDIAN LAW ENCYCLOPEDIA.

Indian Law Encyclopedia

The meaning to be attached to the word ‘abandoned’ would depend upon the context in which it is used. In the context in which it occurs in S. 418(1), the meaning which can reasonably be attached to the word “abandoned” is ‘let loose’ in the sense of being ‘left unattended’ and certainly not ‘ownerless’. It is the duty of the Court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute would defeat the object of the legislature, which is to suppress a mischief the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will ‘advance the remedy and suppress the mischief’. (see Maxwell on Interpretation of Statutes, 11th edn. pp. 221-224 and 266).[Kanwar Singh and others Versus The Delhi Administration AIR 1965 SC 871 ]

Abandoned child
material abandonment
Abandonment of marriage and Animus deserendi
Abandonment of right
ABANDONMENT of work
ABANDONMENT of trade mark
The question of the ABANDONMENT of trade mark amounted to an express or implied consent was a matter for civil court and cannot be made the subject of a criminal prosecution[The State of U.P. Versus Ram Nath Supreme- Court AIR 1972 SC 232 ]
Mere acquiescence, waiver or laches not amounting to ABANDONMENT does not disentitle relief in equity in respect of executed contract.[Sha Mulchand and Co., Ltd
Versus Jawahar Mills Ltd., Salem-AIR 1953 SC 98 : (1953) SCR 351]
ABANDONMENT of service
ABANDONMENT of a known advantage or benefit
ABANDONMENT of the land
ABANDONMENT of settlement by the evacuee
Presumption of Abandonment
Distinction between Estoppel waiver, and ABANDONMENT
Voluntary ABANDONMENT

Reopening of Evidence by Civil Court-[Indian Law Encyclopedia]

Posted on February 12, 2018 by Advocatetanmoy in ENCYCLOPEDIA, EVIDENCE and tagged ENCYCLOPEDIA, ENCYCLOPEDIA OF INDIAN LAW, INDIAN LAW ENCYCLOPEDIA.

Supreme Court of India in K.K. Velusamy vs N. Palaanisamy, decided on 30 March, 2011, held:-

8. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate- 2009 (4) SCC 410]. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

9. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

Inherent Power of Civil Court-[Indian Law Encyclopedia]

Posted on February 12, 2018 by Advocatetanmoy in CIVIL, ENCYCLOPEDIA, Inherent Power of Court and tagged ENCYCLOPEDIA, ENCYCLOPEDIA OF INDIAN LAW, INDIAN LAW ENCYCLOPEDIA, Inherent Power.

Supreme Court of India in K.K. Velusamy vs N. Palaanisamy, decided on 30 March, 2011 held :-

We may summarize them as follows:

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right’ and undo what is `wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.

(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

Example of application: There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.[K.K. Velusamy vs N. Palaanisamy, decided on 30 March, 2011]

Electronically recorded conversation-Admissibility [Indian Law Encyclopedia]

Posted on February 12, 2018 by Advocatetanmoy in ENCYCLOPEDIA, EVIDENCE and tagged Electronic evidence, ENCYCLOPEDIA, ENCYCLOPEDIA OF INDIAN LAW, INDIAN LAW ENCYCLOPEDIA.

Supreme Court of India in K.K. Velusamy vs N. Palaanisamy on 30 March, 2011 held :

“The amended definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani vs. State of Maharastra – AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence”.

Doctrine of Estoppels-Indian Law Encyclopedia

Posted on February 12, 2018 by Advocatetanmoy in CIVIL, ENCYCLOPEDIA and tagged ENCYCLOPEDIA, ENCYCLOPEDIA OF INDIAN LAW, estoppel.

Tanmoy

Supreme Court in the case of Subhash Chandra vs. Mohammad Sharif & Ors. reported in AIR 1990 SC 636

“Doctrine of estoppels ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiffs claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which non-existent in the renders the transfer to be eye of law. By way of an illustration one may refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor landlord who has initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy”.

ONUS OF EVIDENCE : In a case where the defendant in a suit for eviction denies the plaintiffs derivative title to the suit property, the onus is on the defendant to show that the plaintiff has not, in fact, derived any title in respect of the suit property from the original landlord.

Sub-Tenancy [Indian Law Encyclopedia]

Posted on February 6, 2018 by Advocatetanmoy in ENCYCLOPEDIA and tagged ENCYCLOPEDIA OF INDIAN LAW, RENT CONTROL JUDGMENTS.

Tanmoy Supreme Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1, while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.

Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:

“4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property.

It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease.

It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.”

PREAMBLE [Indian Law Encyclopedia]

Posted on January 28, 2018 by Advocatetanmoy in CIVIL, ENCYCLOPEDIA and tagged ENCYCLOPEDIA OF INDIAN LAW, INDIAN LAW ENCYCLOPEDIA, P.

Preamble is the opening verse of a book , which sets the intention , object or goal of the book , it is the sole of the whole reading of a particular book.

Preamble of a Statute

BURRAKUR COAL COMPANY VS UNION OF INDIA AIR 1961 SC 954
Preamble of a Deed or Instrument
Operative Portion of the Document is not Preamble- State Bank of India and anr Versus Mula Sahakari Sakhar Karkhana Ltd
PREAMBLE OF THE INDIAN CONSTITUTION
Preamble – The Constitution of The Islamic Republic of Pakistan 1973
Preamble- Constitution of People`s Republic of Bangladesh

Preamble

Constitution of the United States of America[1787]

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Indian Trusts Act as clear by its preamble and contents is applicable only to private trusts and not to public trusts. A dedication by a Hindu for religious or charitable purposes is neither a ‘gift’ nor a ‘trust’ in the strict legal sense. (See BK Mukherjea on Hindu Law of Religious and Charitable Trusts, Fifth Edition by AC Sen pages 102 103). Thayarammal (Dead) by LR Versus Kanakammal and others[AIR 2005 SC 1588 : (2004) 6 Suppl. SCR 734 : (2005) 1 SCC 457 : JT 2005 (11) SC 277 : (2004) 10 SCALE 221]
As would appear from the preamble of the Transfer of Property Act, the same applies only to transfer by act of parties. A transfer by operation of law is not validated or invalidated by anything contained in the Act. A transfer which takes place by operation of law, therefore, need not meet the requirement of the provisions of the Transfer of Property Act or Indian Registration Act. Section 51 of the Transfer of Property Act applies to inter vivos transfers. It, as noticed hereinbefore, does not apply to a transfer made by operation of law. If a judicial order is passed restoring the land back to a member of Scheduled Tribes in terms of the purport and object of the statute, the provisions of the Transfer of Property Act cannot be applied in such a case. The matter is governed by a special statute. Unless there exists a provision therein, an order passed thereunder cannot be supplanted or supplemented with reference to another statute. Bharat Petroleum Corporation Ltd. Versus P. Kesavan and another[AIR 2004 SC 2206 : (2004) 3 SCR 811 : (2004) 9 SCC 772 : JT 2004 (4) SC 151 : (2004) 4 SCALE 249]
Effect of Preamble : A statute is an edict of the legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the Court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the legislature. This task very often raises the difficulties because of various reasons, in as much as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one’s thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to exposing and not to legislate, Legislation in a modern State is actuate with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations rising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. The aforesaid principle was enunciated and applied by this Court in the case of State of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp(2) SCC 351. Lord Somervell in the case of Attorney-General v. HRH Prince Ernest Augustus, 1957(1) All ER 49 has stated “The mischief against which the statute is directed and, perhaps though to an undefined extent the surrounding circumstances can be considered. Other statutes in pari material and the state of the law at the time are admissible.” It is also a cardinal principle of construction that external aids are brought in by widening the concept of context as including not only other enacting provisions of the same statute, but its preamble, the existing state of law, other statutes in pari material and the mischief which the statute was intended to remedy. District Mining Officer and others Versus Tata Iron and Steel Co. and another [AIR 2001 SC 3134 : (2001) 1 Suppl. SCR 147 : (2001) 7 SCC 358 : JT 2001 (6) SC 183]
The preamble of the Constitution[indian] and Article 38 accord social and economic justice as fundamental rights to all people in all institution of national level. Article 46 enjoins the State to accord social and economic justice to the Scheduled Castes and Scheduled Tribes. Article 51A enjoins every citizen to improve excellence individually and collectively that the nation constantly rises to higher levels, socially, economically and culturally. Right to development assured by the Constitution is held to be a fundamental right. So the policy of reservation in the preamble of the Constitution, the fundamental rights under Articles 14, 15(1), 15(4), 16(1), 16(4), 16(4A) 46 and 335 and the other related articles is to give effect to the above constitutional objectives. G.S.I.C. Karmachari Union and others Versus Gujarat Small Industries Corporation and others [AIR 1997 SC 1730 : (1996) 10 Suppl. SCR 8 : (1997) 2 SCC 339 : JT 1997 (1) SC 384 : (1997) 1 SCALE 241]
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 : PREAMBLE – In order to determine the question whether the Act in question is constitutionally valid or not in the light of Arts. 14, 19(1)(g) and 21 of the Constitution, it is necessary to find out what does the Act actually mean and provide for. The Act in question, as the preamble to the Act states, was passed in order to confer powers on the Central Government to secure that the claims arising out of, or connected with, the Bhopal gas leak .disaster are dealt with speedily, effectively, equitably and to the best advantage of the claimants and for matters incidental thereto. Therefore, securing the claims arising out of or connected with the Bhopal gas leak disaster is the object and purpose of the Act. We have noticed the proceedings of the Lok Sabha in connection with the enactment of the Act. Our attention was also drawn by the earned Attorney General to the proceeding of the Rajya Sabha Hon’ble wherein the Hon’ble Minister, Shri Virendra Patil explained that the Bill enabled the Government to assume exclusive right to represent and act, whether within or outside India in place of every person who had made or was entitled to make claim in relation to the disaster and to institute any suit or other proceedings or enter into any compromise as mentioned in the Act. The whole object of the Bill was to make procedural changes to the existing Indian law which would enable the Central Government to take up the responsibility of fighting litigation on behalf of these victims. The first point was that it sought to create a locus standi in the Central Government to file suits, on behalf of the victims. The object of the statute, it was highlighted, was that because of the dimension of the tragedy covering thousands of people, large number of whom being poor, would not be able to go to the Courts, it was necessary to create the locus standi in the Central Government to start the litigation for payment of compensation in the Courts on their behalf. The second aspect of the Bill was that by creating this locus standi in the Central Government, the Central Government became competent to institute judicial proceedings for payment of compensation on behalf of the victims. The next aspect of the Bill was to make a distinction between those on whose behalf suits had already been filed and those on whose behalf proceedings had not yet then been instituted. One of the Members emphasised that under Art. 21 of the Constitution, the personal liberty of every citizen was guaranteed and it has been widely interpreted as to what was the meaning of the expression ‘personal liberty’. It was emphasised that one could not take away the right of a person, the liberty of a person, to institute proceedings for his own benefit and for his protection. It is from this point of view that it was necessary, the member debated, to preserve the right of a claimant to have his own lawyers to represent him along with the Central Government in the proceedings under S. 4 of the Act, this made the Bill constitutionally valid. Charan Lal Sahu Versus Union of India [ AIR 1990 SC 1480 : (1989) 2 Suppl. SCR 597 : (1990) 1 SCC 613 : JT 1989 (4) SC 582]
Hindu Succession Act, 1956: preamble—The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus— In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by S. 8 he takes it as karta of his own undivided family— It would be difficult to hold today the property which devolved on a Hindu under S. 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son: that would amount to creating two classes among the heirs mentioned in Class 1, the mate heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under S. 8 of the Act included widow, mother, daughter of predeceased son etc. Commissioner of Wealth tax, Kanpur Versus Chander Sen [AIR 1986 SC 1753 : (1986) 3 SCR 254 : (1986) 3 SCC 567 : (1986) 2 SCALE 75]
PREAMBLE OF THE INDIAN CONSTITUTION : Now. to the question at issue and first, a word about interpretation. Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule is to look to the preamble to the Constitution as the guiding, light and to the Directive Principles of State Policy as the Book of Interpretation. The preamble embodies and expresses the hopes and aspirations of the people. The Directive Principles set out proximate goals. When we go about the task of examining statutes against the Constitution, it is through these glasses that we must look, ‘distant vision’ or ‘near vision’. The Constitution being suigeneris, where constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted maybe misplaced. Originally the preamble to the Constitution proclaimed the resolution of the people of India to constitute India into ‘a Sovereign Democratic Republic’ and, set forth ‘Justice, Liberty, Equality and Fraternity’, the very rights mentioned in the French Declarations of the Rights of Man as our hopes and aspirations. That was in 1950 when we had just emerged from the colonial-feudal rule. Time passed. The people’s hopes and aspirations grew. In 1977 the 42nd amendment proclaimed India as a Socialist Republic. The word ‘socialist’ was introduced into the preamble to the Constitution. The implication of the introduction of the word ‘socialist’, which has now become the centre of the hopes and aspirations of the people – a beacon to guide and inspire all that is enshrined in the articles of the Constitution, is clearly to set up a “vibrant throbbing socialist welfare society” in the place of a “Feudal exploited society”. Whatever article of the Constitution it is that we seek to interpret, whatever statute it is whose constitutional validity is sought ‘to be questioned, we must strive to give such an interpretation as will promote the march and progress towards a Socialistic Democratic State. For example, when we consider the question whether a statute offends Article 14 of the Constitution we must also consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the preamble and the Directive Principles enumerated in Part IV of the Constitution. A classification which is not in tune with the Constitution is per se unreasonable and cannot be permitted. With these general enunciations we may now examine the questions raised in these writ petitions. Atam Prakash Versus State of Haryana and others [AIR 1986 SC 859 : (1986) 1 SCR 399 : (1986) 2 SCC 249 : (1986) 1 SCALE 260]
Resettlement of Displaced Persons (Land Acquisition) Act, 1948 : preamble—The Act is a pre-Constitution statute. It was therefore urged that it does not qualify for the protection of Art. 31-B inasmuch as when enacted it was violative of Section 299(2) of the Government of India Act, 1935 and as it was void ab initio, it was not an existing law within the meaning of expression in Art. 366(10) and therefore is not qualified for umbrella of protertion enacted in Art. 31-B. Ram Nath and others
Appellant Versus Union of India [ AIR 1984 SC 1178 : (1984) 3 SCR 572 : (1984) 1 SCALE 644]
Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), preamble and Section 13A-1 and 13(1)(g)— Bombay Rent Act is a welfare legislation designed among other matters, to protect tenants from harassment and unreasonable eviction by landlords and it should, therefore be interpreted in a broad and liberal spirit so as to further and not to constrain the object of the Act.