Friday, November 17, 2017

LAWYERS' corner

LAW & Legal WoRLD  (unfathomable, a journey into / to the...)


“The view that the legislation included in the Schedule is subject to the test of basic structure, expressed by Justice Mathew in Indira Gandhi case, found the support of a unanimous court in Waman Rao v. Union of India. The court identified article 32 as part of the basic structure. Then citing Minerva Mills case[vii] where the court by a majority of 4 to 1 struck down clauses (4) and (5) of Article 368 which provided for exclusion of judicial review and unlimited amendment power to the  Parliament respectively. Judicial review held to be a basic feature of the constitution.”


[W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.[vii]

It is an interesting journey- of  inconclusive controversies ; with  no ticket to pay for - li fe  (-VES) >>>>>>>............................................ 

Basic structure doctrine

Monday, November 13, 2017

'morality' - Moral TURPITUDE - WAys of the world >>>>>....................

To put it differently>

Right X Wrong

Perception of individual - accused of X the one sitting in Judgment 
Contradiction in Perception OR Values !- for, the line of demarcation, for identification, is too thin  to be clearly in vision. And that is rendered more difficult, well nigh almost impossible. So much so, the person (s)  

Proposition 1. : In case two individuals, perceive-rs , especially if one or more empowered to sit in judgment, are of diagonally opposite views, then is not the acid test to conclude that is a matter on which nothing but a subjective, - as opposed to objective - view is possible. If so, without getting into the technicalities or hyper technicalities, the better hence binding view should be taken to be the one in favor of, hence giving the benefit of doubt (known only/commonly known  and accepted in 'criminal jurisprudence').

Aside: Given the given human trait , no two, unless compelled to by external factors, minds to think alike ; but invariably agree to disagree with the other fellow human. The only exception one think of readily is, the other's perception /perspective suits/supports his own so called, view of personal right (S), etc.

Subjectively, no two views can ever match. But 'objectivity ' is, by and large, alien to human trait , self-centrist (synonyms> self-eccentric, - concentric, so on. - i.e. in short, motivated ideas,

no right, only better- ever

why better - to judge by applying several tests, -
appealing to 'common' sense - sense commonly agreed/accepted
to apply 'the rule' or adopt common law principles such as, - fair play, balanced, good conscience, equity -
Saying- Devil in 'Details' ?!- but then, problem is in identifying the 'is it a 'devil' or ...

Can go and on and on-- thinking so, but eventually most likely to find self in a vicious circle -  ?!?!?!>>>>>>>>>>>>>>>> 


'Adultery' is a criminal offence, but cognisable - i.e. if complained of..

Concept OF "SUBJECTIVE"  (as opposed To '"OBJECTIVE") - so also , 
a synonym 

"ADULTERY" - Different Perceptions AND Variances !

PROPOSITION 2., 3.,....

to conclude


Hastening to add: All said, but that there could be no two views that any social evil of the kind, such as ‘bigamy’, is a product of a obnoxiously sick mindset, hence must be eschewed at all cost – by one and all, not excluding a member of any august profession. Ought to be so, whatever be the surrounding compulsions of the times.

In rejecting the contention of the appellant , -“that involvement of a person in an offence of bigamy is not coming within the purview of “moral turpitude”-, the court is seen to have gone into and mainly relied on the very wide dictionary meaning of the said concept (Para 23).
According to an independent but impartial view, however, the point of instant and spontaneous concern, which could have been more sufficiently stressed and persuasively urged by the aggrieved CA, – is this: Whether, in the context/for the purposes of the subject enactment for CA profession , the concept of ‘moral turpitude’ ought to be construed in a restricted sense; that is, not so widely as to bring within its ambit / mischief any or all such unrelated matters profoundly of ‘personal’ nature. Especially,if it has no direct nexus or correlation or whatever, to the ideological concepts- such as,”Disabilities’ (Para 8), or professional ethics, or misconduct, within the parameters/realm of the prescribed code of conduct. Further that, a CA is not a‘public servant’ or a ‘government servant’, in the true sense,and certainly not in the given context, as appears to have been the case in some of the court judgments relied on by the OP.
As may be readily foreseen or visualized, the view the court has taken has the obvious potentials for far-reaching unpalatable consequences to the CAs in practice, particularly in the modern day environments.
Of course, one has to wait for the outcome of further proceedings, in the instant case itself and / or in other like cases not to be ruled out, for knowing better what is in store for the future.