Perspectives on Law

I have in my earlier posts,( here , here and here ) proposed argumets which may be made in favour of the the presumption being irrebuttable. I will now present the arguments  from the other side. Argument 1- Presumption Rebuttable . One of the principles of Interpretation of Statutes is that another statute may be referred to while interpreting a statute when the two are similar i.e. when they are statutes in pari materia  ( Harshad S. Mehta v. State of Maharashtra , (2001) 8 SCC 257) It has been held by the Supreme Court in State of Madras v. A Vaidyanath Aiyer , AIR 1958 SC 61, that it is not necessary that the entire subject-matter in the two statutes should be identical before any provision in one may be held to be in pari materia with some provision in the other. In this case, Section 4 of the Prevention of Corruption Act, 1947 which directs that on proof that the accused has accepted any gratification other than the legal remuneration, it shall be presumed unless the con

Argument 3 – Presumption Irrebuttable The third factor I see in support of the argument that the presumption is irrebuttable, is the use of words “shall be presumed.” This argument may not be as strong as the Argument 1 and Argument 2 but it can nevertheless be considered. The Indian law, under the Evidence Act, Section 4 provides for three kinds of presumptions - “ may presume ,” “ shall presume ,” and “ conclusive proof ”. When a court “may presume” a fact, it means that it is at the courts discretion to presume it until it is disproved. In case where the court “shall presume,” it has no option but to presume the fact, until it is disproved and in the case where something is said to be conclusive proof, then under no circumstances will a court allow it to be disproved. It may be noted that, in other enactments, excluding the Evidence Act, the legislators while creating a presumption use the phrase shall presume/ shall be presumed unless the contrary is proved . The words shal

This post is in continuation of this and this post. Argument 2 - Irrebuttable presumption Another useful aid of construction is the Parliamentary history which includes the Bill and the Reports of commissions or inquiry committees preceding the introduction of a Bill.( See CIT, MP v. Sodra Devi , AIR 1957 SC 832; Express Newspapers Ltd. v. Union of India , AIR 1958 578; Madanlal F. Dudhediya v. S. Chagandeo Sugar Mills Ltd. , AIR 1962 SC 1543) The recommendations of the Raghavan Committee Report which preceded the passing of the new Competition Act may thus, be looked at. The Report suggested that in general, the rule of reason test is required for establishing that an agreement is illegal. However, for certain kinds of agreements, the presumption is often that they cannot serve any useful or pro-competitive purpose and therefore do not need to be subject to the rule of reason test. They further suggested the following kinds of horizontal agreements to be presumed anti-competi

In continuation to my last post, which may be accessed here . I will now, first, present arguments from the side that the presumption raised is irrebuttable. Argument 1 - Presumption Irrebuttable While interpreting a statute, the true intent of the legislature has to be gathered having due regard to the language used therein. However, when the language used is ambiguous and unclear, courts may resort to external aids of construction. Thus, while interpreting an Indian Statute, Indian Courts do not hesitate to refer to foreign statutes and foreign decisions of countries which follow the same system of jurisprudence as the Indian jurisprudence. The new competition act has been drawn on the same lines as the competition law of other legal systems such as the U.S, EU etc. and therefore one may refer to these laws to decipher the intention of the legislature in determining whether the presumption raised in section 3(3) is irrebuttable. USA follows two approaches in determining whe

Sections 3 and 4 of the Competition Act (India) relating to anti-competitive agreements and abuse of dominant postion, were recently brought into force on May 20, 2009. Section 3 of the Act declares that  anti-competitive agreements will be void and prohibits enterprises and persons from entering into agreements in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services that causes or is likely to cause an appreciable adverse effect on competition in India. Generally agreements are classified into horizontal and vertical agreements for the purpose of competition laws. However, the Indian law doesn't use this terminology. Nevertheless it can be seen that, in substance Section 3(3) covers horizontal agreements, whereas Section 3(4) covers vertical agreements. The importance of this distinction is that normally horizontal agreements relating to price fixing, market sharing etc. are considered to be "per se "anti-comp

A beautiful legal article has been written by Mr. Neeraj Aarora on the same question discussing in detail the judgments on this point and also analysing the question with the aid of principles of interpretation of statutes. The same may be accessed here . In addition to the argument I have made in the post which may be accessed here , he discusses the principles of interpretation of a "proviso" in greater detail.

In this post I present the arguments on this question from the State's perspective. The limit  on abortion is purely a question of policy - It is well settled that the SC and HC will not interfere or adjudicate upon Government policy matters. (V.G Ramachandra, General Principles of Writ Jurisdiction, Vol. 1, 6th Ed. p. 550) The principle is firmly embedded in the Constitution, that the policy of law and expediency of passing it, are matters for the legislature to decide, while interpretation of laws and their validity fall within the exclusive adjudicatory functions of the court. ( Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 405 )  This is because in complex social, economic or commercial matters decisions have to be taken keeping in mind several factors, and it is not possible for the courts to consider competing claims and conflicting interests and to conclude in which way the balance tilts. ( Nagaraj v. State of A.P, (1985) 1 SCC 523 ) First, barring a few parts of t

Let us now consider the next possible argument that the State may raise in its defence to justify the rational of a 20 week upper limit - Viability of the foetus. Many countries which have an upper limit on abortion, have it because of the element of viability of the foetus. Viability is that stage from which a foetus becomes capable of surviving outside the womb of the mother. Medically this stage is said to be certain between 26-28th week. ( Stephen M. Krason, Abortion- Politics, Morality and the Constitution, 1984 p. 346) Also, The prospects for babies born before the 24 week limit are usually very poor. ( Study published by British Medical Journal ) Thus clearly the argument that the 20 week limit is in support of the viability of the foetus does not hold good. Even assuming that this limit was valid on grounds of viability of foetus, it would have no bearing on abortion of a foetus on eugenic grounds. Most of the countries which recognize viability of foetus as a ground for pl

This post is in continuation of my earlier post - presenting possible arguments from the Petitioner's side. In my opinion, the constitutionality of the 20 week limit may be challenged under Article 14 of the Constitution, on the unreasonable classification test. The Supreme Court has laid down the following tests to determine when a classification would be reasonable: i. It should be based on an intelligible differentia which distinguishes persons or things grouped together in the class from others left out of it. ii. The differentia adopted as the basis of classification must have a rational nexus with the object sought to be achieved by the statute in question The two groups or classes created by the said limit are women pregnant up to the 20th week and those who have exceeded the 20th week- where the former may abort, the later cannot. The next question is whether this classification bears a rational nexus with the object sought to be achieved. What could have been obje

The Indian law of Abortion is governed by the Medical Termination of Pregnancy Act 1971 (MTP Act or the Act). The Act allows abortion on the grounds mentioned in Section 3 of the Act. This section permits abortion only until the 20th week of pregnancy. Beyond the said limit abortion is permissible only when termination of pregnancy is immediately necessary to save the life of the pregnant woman.(Section 5 MTP Act) Section 3 reads as follows: "When Pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does

In continuation to my earlier post, in this post, I will be proposing a counter argument - that an instalment contract can be avoided under Art.49/64 CISG In determining the meaning of an international treaty, one of the rules of the 1969 UN Convention on the Law of Treaties is that recourse may be had to supplementary means of interpretation including the preparatory work of the treaty. (Article 32 of the 1969 Vienna Treaty Convention.) In the interpretation of the CISG also, its legislative history can be decisive, as this would be in accordance with Art. 7(1) of the CISG. If we look at the legislative history of Art.73, we will see that the purpose of incorporating 73(1) is to enable the buyer to make partial avoidance of an installment contract. The purpose of 73(2) was to encompass an anticipatory breach situation, where the basis of the anticipation is a breach already committed. While the purpose of Art. 73(3) is to provide for a right of avoidance having retroactive effec

The Convention on International Sale of Goods (CISG) provides for avoidance of contract as a remedy to both the buyer and seller if there is a fundamental breach of the contract. The buyer is given this right under Art.49 whereas the seller has a right under Art. 64. The CISG also provides for a special article on avoidance  (Article 73) available to both seller and buyer, if the contract is one of installments. A contract is considered to be an installment contract, under the CISG, when it provides for deliveries in separate lots. (Secretariat Commentary on art. 64 of the 1978 Draft [draft counterpart of art. 73 CISG], Art. 73 provides for avoidance in three cases: (1) to avoid only that instalment in respect of which a fundamental breach has occurred, (2) to avoid future instalments if a breach that has actually occurred gives him good reasons to conclude that a fundamental breach will occur with respect to future deliveries, (3) to avoid past and future deliveries if by reaso

Currently the position in India is such that this question can neither be answered in the positive nor can it be answered in the negative. This is premised on the fact that there is no statute governing adoption amongst Christians and therefore the law is largely determined through diverse customs and conflicting judicial decisions. This question is further complicated due to diverse positions relating to adoptions in case of abandoned children, adoptions by guardians and adoption from original parents. The customs in which Indian Christians are allowed to adopt are the agricultural tribes of Punjab ( Sohan Lal V. A.Z. Makuin, AIR 1929 Lahore 230 ) and the Syrian Christians of Travancore, Kerala. (Rao Bahadur L.K. Anantakrishna Ayyar in “the Anthropology of Syrian Christians”.) On the other hand, customs in Goa have apparently considered adoption to be legally impermissible. ( Carlos Tavora and Ors. v. Maria Felicidade Fernandes e Lobo and Ors. ) As far as judicial decisions are c

Two High Court judgments ( Madras and MP ) take the view that a woman cannot be a respondent under DV Act as defined in Section 2(q). Section 2 (q) reads - Respondent means any adult male person who is, or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. The unanimous opinion of these Hon’ble High Courts has been explained as follows in another judgment : “… Section 12 of the Act provides that an application (not a complaint) for seeking one or more reliefs under the Act can be filed. On perusal of Section 18 to 22 of the Act, it appears that the reliefs under these Sections can be passed on the application under Section 12 of the Act. The word complaint as appeared in the definition of respondent under Section 2 (q)

Welcome. I write this blog to present to the readers an analysis of various legal issues in Indian law, and Public International Law.