Increase in the amount of Maintenance by the Supreme Court

Recent Supreme Court decision in Vinay Paramvir Parmar v. Paramvir Parmar Civil Appeal Nos. 5831-5833 of 2011, a issue has come out pertaining to divorce decree and thereafter demand of maintenance by the wife. Governed by Hindu Law, divorce was decreed in relation to Section 13-B of Hindu Marriage Act, 1955. Family Court fixed 20,000/- as the amount of maintenance to be provided to the wife, and this was followed by an appeal in the High Court which affirmed the Family Court decision. Altering the judgments of both High Court and Family Court, Supreme Court increased the amount of maintenance from 20,000/- to 40,000/- per monthafter bearing in mind the facts and circumstances of the case. In addition to the decision of Family Court, High Court (Bombay) asked husband to pay up a permanent alimony of Rs. 20 lakhs to the wife referring to Section 25 of the Hindu Marriage Act. It was alleged by the appellant, i.e. wife that the income of respondent is much higher in comparison to the maintenance amount fixed by the court, and hence it should be increased. Contrary to this, it was contended by the respondent that the income as alleged by the appellant was not his actual income, and it would amount to what has been alleged only after accumulating the allowances and other benefits, and the contention of the respondent was acknowledged by the court.

Court, referred to its judgement in Shri Bhagwan Dutt vs. Smt. Kamla Devi and Anr. (1975) 2 SCC 386, where it was held by the court, while referring to section 488 of Code of Criminal Procedure, 1898 that

“The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.”

Another judgment which was referred by the Supreme Court was of Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316, where it referred to Section 125 of the Code of Criminal Procedure, 1973, and opined that

“Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC."

Returning to the judgment of this particular case, it would be interesting to note that while ascertaining the property so as to determine the amount to be paid as maintenance/alimony, income, property along with other sources of incomes ought to be taken into account before decreeing in favour of anyone. Amount which should be provided has not been provided in any of the acts, and amount would depend on the facts and circumstances of each case. It would be obligatory on the part of the court to look into the state which wife was living in before divorce as a married woman. And the amount needed to maintain her would certainly be such, as would be sufficient for her to maintain herself by living under habitual conditions. There would be no mandate on the part of the husband to provide her a luxurious life once divorce has been decreed. Notion of equity has to be kept in mind, and it would certainly be necessary to see whether husband would be able to provide the amount which wife is demanding, and court would not force him to live in an abysmal state after devoting a major part of his income to his former wife. Here in this case, it was husband which had to provide maintenance but it is not mandatory that a husband cannot receive maintenance in case his wife’s condition is much better than that of him, and without her assistance it would not be possible for him to maintain himself. So, the wording should be read as “either husband and wife” and the same has been provided under Hindu Marriage Act.

But, in this case wife had been working in Cathay Pacific Airlines and was also earning some additional amount before marriage. Subsequently after marriage, she resigned from the post after her husband asked her to do so. Thereafter, she had no source of income and was living with her husband before divorce and with her sister after divorce. Considering all these circumstances, it was held by the Supreme Court that the amount of maintenance should be increased from Rs. 20,000/ to Rs. 40,000/- per month.

Enforceability of an unregistered Arbitration Agreement between the parties

Recent Supreme Judgment in M/S Sms Tea Estates P.Ltd. vs M/S Chandmari Tea Co.P.Ltd. CIVIL APPEAL NO. 5820 OF 2011 addressed two significant uncertainties pertaining to Arbitration Law. The issues framed by the court are as follows –

(i) Whether an arbitration agreement contained in an unregistered (but compulsorily registrable) instrument is valid and enforceable?

(ii) (ii) Whether an arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable?

While addressing the first issue, court aptly figured out that a clause in a lease deed citing Arbitration agreement between the parties work only as a collateral transaction. Collateral transaction, in its essence, can only be testified as agreement in addition to the original contract between the parties, which survives in its own distinctiveness. Not depending on the nature of the original lease agreement between the parties, arbitration clause will remain intact. In the instant case, it has been alleged by the respondent that unregistered lease deed cannot make him obliged to comply with the agreement formed between him and the appellant. Stout reliance was placed on Section 49 of Registration Act, 1908 which states that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner, and also it would not be received as an evidence. Albeit this, there exists certain proviso to this particular section, which on construction denote that if there exists a collateral transaction, then it could be used as an evidence because of its individuality. Another connotation which can be drawn is the use of the agreement in matters linked to specific performance, which had no relevance in this case. Furthering the discussion, it is critical to understand as to how an arbitration clause is not integrated to the central agreement. Arbitration clause, which is present in a majority of commercial documents, is essentially an agreement between the parties irrespective of the nature of the contract formulated between them. Even if a contract turns out to be void at a later stage, it would not in any way affect the very nature of the arbitration clause.

This is primarily because of the reason that central agreement and Arbitration agreement, each having its own identity, assimilated into a single document so as to avoid inconvenience. Just because both agreements have been incorporated into a single doesn’t change their individuality. It can be easily understood after reading out the relevant provisions of the Arbitration and Conciliation Act, 1996. Section 16(1)(a) reads as an arbitration clause which forms part of a contract shall be treated as an agreement independent of theother terms of the contract; and Section 16(1)(b) as a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

Despite all these provisions, there survive certain scenarios when contract along with its arbitration clause can be avoided in wholesome. One of them is the voidability of the agreement i.e. they very basis on which the agreement has been formed is not genuine, and one of the parties was not attentive. Voidability can find its basis on several grounds, coercion and fraud among few of them. It would be undoubtedly evident, removing every kind of ambiguity, from this dictum of the Supreme Court that an arbitration clause would not in any way affected just because of the reason that the core contract was not registered, and hence it would render arbitration clause void along with it.

Addressing the second issue, it was held by the Supreme Court that an instrument must be duly registered, if law entails so, before admitting it as evidence in the court of law and its admissibility cannot be justified in the same manner as in last issue. Discreteness of Registration Act and Indian Stamp Act was pointed out by the court. Section 33 of the Indian Stamp Act requires a document to be duly registered, and if it is not duly registered, the same should be impounded by the court or any competent authority before which the document is being presented. Section 35 of the same act forbids admissibility of such a document, with a proviso which affirms that the same document, which has not been duly registered, can be made admissible after reimbursing the required amount to the competent authority. Following this, court promulgated certain tenets on the issue here the arbitration clause is contained in a document which is not registered (but compulsorily registrable) and which is not duly stamped, which can be read as follows:

“(i) The court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registrable.

(ii) If the document is found to be not duly stamped, Section 35 of Stamp Act bars the said document being acted upon. Consequently, even the arbitration clause therein cannot be acted upon. The court should then proceed to impound the document under section 33 of the Stamp Act and follow the procedure under section 35 and 38 of the Stamp Act.

(iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the Collector (as contemplated in section 35 or 40 of the Stamp Act), and the defect with reference to deficit stamp is cured, the court may treat the document as duly stamped.

(iv)Once the document is found to be duly stamped, the court shall proceed to consider whether the document is compulsorily registrable. If the document is found to be not compulsorily registrable, the court can act upon the arbitration agreement, without any impediment.

(v) If the document is not registered, but is compulsorily registrable, having regard to section 16(1)(a) of the Act, the court can de-link the arbitration agreement from the main document, as an agreement independent of the other terms of the document, even if the document itself cannot in any way affect the property or cannot be received as evidence of any transaction affecting such property. The only exception is where the respondent in the application demonstrates that the arbitration agreement is also void and unenforceable, as pointed out in para 8 above. If the respondent raises any objection that the arbitration agreement was invalid, the court will consider the said objection before proceeding to appoint an arbitrator.

(vi) Where the document is compulsorily registrable, but is not registered, but the arbitration agreement is valid and separable, what is required to be borne in mind is that the Arbitrator appointed in such a matter cannot rely upon the unregistered instrument except for two purposes, that is

(a) as evidence of contract in a claim for specific performance and

(b) as evidence of any collateral transaction which does not require registration.”

“On the contrary, all the world would point to that nation as violating a treaty, by going to war with a country with whom they had engaged to enter into arbitration” - Richard Cobden

Click Here for the Supreme Court Judgment in this case.

2nd Annual Women and Justice Conference, New Delhi

Conference on Gender Based Violence – October 2011

Organised by – Avon Global Centre for Women and Justice at Cornell Law School in cooperation with Jindal Global Law School.

Theme – “Gender Based Violence and Justice in South Asia”

Date – 22^nd – 23^rd October, 2011

Venue – New Delhi

Objectives of the Conference –

1. Foster discussion and collaboration between and among justice system actors, civil society advocates, health professionals, and academics from South Asia and other regions to develop solutions for eradicating gender-based violence.

2. Share best practices emerging from within South Asia to address violence against women and girls.

3. Examine opportunities for using international human rights frameworks and mechanisms to analyze gender-based violence and design solutions to it.

4. Engage academia and scholarly works to inform the development of advocacy tools and strategies to combat gender-based violence, including designing laws and monitoring their effectiveness.

5. Enhance international collaboration and networks of stakeholders addressing gender-based violence.

Some Confirmed Speakers – Indira Jaisingh (Additional Solicitor General of India), Justice Imman Ali (Bangladesh Supreme Court), Justice Desiree Bernard (Caribbean Court of Justice) etc.

Paper Proposal Submission – A publication on conference theme will be co-published by Cornell Law School and Jindal Global Law School. Paper should comprise Title, an Abstract of fewer than 2000 words, Biographical Information and A brief explanation of how your research fits with following session topics –

- Gender Violence in South Asia: Framing the Issues

- Beyond the Law: Strategies to Eradicate Gender-based Violence

- Comparative Legal Perspectives on Eradicating Gender-Based Violence in South Asia

- Access to Justice for Survivors of Gender-Based Violence in the Courtroom

- Economic Empowerment and Gender-based Violence

- Gender-Based Violence and International Public Health

- Gender-Based Violence in Conflict and Crisis Situations

- Drafting and Enacting Laws to Combat Gender-Based Violence: A Focus on Acid

Violence

Deadline - 15th August, 2011

Paper proposal should be submitted to womenandjustice@lawschool.cornell.edu

For more Details of the event, Click Here

For Publication Details, Click Here

Adultery as a ground for Divorce under Hindu Law

Adultery can be defined, according to Black’s Law Dictionary, as the unlawful voluntary sexual intercourse of a married person with another person of opposite sex. Indian law treats adultery as an offence under Section 497 of Indian Penal Code, punishable with imprisonment which can be extended for a period of 5 years. At the outset, this provision was introduced so as to preserve the notion of a family, where a married person was not allowed to have illicit relationship once married. Under Hindu Marriage Act, adultery is one of the grounds on the basis of which a person can file a petition in order to procure decree of divorce. Very often, Courts are reluctant in awarding a decree of divorce, and put a great burden over the parties before separating them. Marriage, according to Hindus, is a sacred and impeccable bond, which if broken would lead to severe consequences. However sacred it may be, there have always existed some grounds on which marriage can be broken, and sometimes couples find themselves in a subjugating state that divorce seems to them the last resort to entreat.

Section 13 of Hindu Marriage Act, 1955 states the circumstances enabling a person to file a petition for the decree of divorce, and for our purpose clause (3) of the aforesaid section is significant which can be read as –

“has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse”

So as to avoid a plethora of divorce petitions, and to save the knot of marriage, petitioner cannot as a matter of fact get the petition decreed in his favour just because of the reason that respondent had illicit relationship with some other person in past. Instead, court would be hesitant in providing such decree if respondent had abstained from indulging in such an activity for a substantial period of time, and thereafter practicing a good moral behaviour. Continuing the tradition, the onus remains on the party which files a petition to get relief on the basis of this particular ground, and courts do not make it an easier task for the petitioner, and require them to prove it stoutly, which can persuade the judges. Accusing someone of adultery means questioning the moral character of that person, and this is the reason why burden on the petitioner becomes even higher. There can certain circumstances when a person becomes perplexed whether his spouse is engaged in the act of adultery, and mere qualm can never be allowed as a strong reason to believe that the other spouse has in fact committed adultery, and courts have always remained cautious so as not to opine any erroneous decision. In addition to this, courts, very often, remain reluctant to admit the direct evidence pointing towards the act of adultery. Highly probable circumstances proving the act of adultery are relied upon by the courts while hearing this discourse.

There are certain other evidences which can, if reliable, be admitted and accepted by the court of law while pronouncing its decision for the act of adultery. A series of act, if called upon by the courts to prove this act, forms one of the most important substantiation which if proven can lead to the decree of divorce efficacious. Denying accusation of adultery by the respondent, even if he did it, can be carried out by him because of various reasons, and can plead those reasons which can form substantial ground for refuting the divorce decree. Being faulty, a petitioner cannot ask for divorce. It is as simple as it can be, one cannot ask for a relief for which he was at fault. A person, who himself engages in the act of adultery, cannot ask for a divorce decree, which if asked would be precluded by the court promptly. Eventually, it would be the discretion and satisfaction of the court which would be the deciding component in these cases.

Criminal charges cannot be framed in a suit filed in a civil court, even if such charges proven. This is because of a minimal reason that the degree of proof in a criminal court is highly sophisticated in comparison to a civil court, which shall be proven beyond all reasonable doubts disparate to what one requires to prove in a civil court. A separate suit can be filed in the criminal court under Section 497 of Indian Penal court, which would consequently lead to the engrossment of the criminal procedure while framing charges and thereby proving it. Another important point which ought to be taken into account while dealing with such cases is the naissance of a child during the period when couple had been living apart because of some differences between them, and the period between the birth of the child and last marital intercourse should be long enough in order to prove that no child, if conceived during such period, would be a legitimate child of the petitioner. It would be unproblematic to understand that petitioner in such cases would be a man. But, it would be an obligation on the part of the husband to prove that no access was feasible at the time when child was born. The period relied upon the English Court is that of 360 days after the last martial intercourse between the couple. Once proven, such a ground would leave no room for the court to believe that adultery was in fact committed by the wife. There have been certain instances when a man had requested the court to conduct blood test in order to spot whether the child born is in fact his child. But, a court cannot compel, in such cases, a wife to undergo blood test so as to make the petitioner satisfy and this shall be proven by means of facts and circumstances. Only wholesome facts and circumstances can prove such a charge. It would not be mandatory for the petitioner to name the person with whom the respondent had committed adultery, and it would not in any way affect the decision of the court. Interestingly, courts do not rely upon the confession churned out by the respondent in front of the bench. As an alternative, court will rely on the evidences presented before it with verve. It would be quite clear to understand some of the basic principles on which a divorce decree could be granted to the petitioner if demanded.

“Christ and The Church: If he were to apply for a divorce on the grounds of cruelty, adultery and desertion, he would probably get one.” - Samuel Butler

Few Limitations and Scope of Criminal Procedural Code

Substantive laws are of no use without existence of a procedure so as to apply it, and would act only as a cadaver. This makes it necessary for us to have a procedure in order to make substantive laws pragmatic. Criminal Procedure or Code of Criminal Procedure, 1973 (hereinafter Code) being one such procedural law provides a track on which laws relating to crimes can scamper smoothly. It was year 1973 when aged Code of Criminal Procedure, 1898 was overhauled by Indian legislature with some objectives, relaxed access by poorer section being one such objective and among others were fair trail and expeditious justice. But, like most of the other laws, this act is not applicable in Jammu and Kashmir along with Nagaland and tribal areas which can be framed out from Section 1 of the code. But, it would also be equally important to note that Chapter VIII, X and XI are applicable in the state of Nagaland tribal areas unlike state of Jammu & Kashmir. Despite this, it has been by Supreme Court in Mowu v. Supt, Special Jail (1971) 3 SCC 936 that this non-applicability can only mean that rules would not apply and not that the authorities cannot be governed by this code.

Interestingly, it is quite worthy to become aware of the fact that places where local procedures have been followed for a long period of time, then those procedures could prevail over the provisions mentioned under the code, and this is one of the most important reasons for keeping tribal areas out of the purview of this code. Role of this code comes into play as soon as crime is committed, and this would be the act for deciding as to what would be the jurisdiction of the court, in other words to determine the court where the case will undergo trial. Investigation and inquiry are some other procedures to be followed in accordance with the act. While ascertaining jurisdiction of a court, it is necessary to check where the offence come under the ambit of any other law, any special law to be more specific. If it does, then such procedure, as mentioned under that specific act, would be followed by special court established under the act. One such example can be Army Act, where a person convicted under the act would not be able to challenge the decree under the provisions mentioned under any other act, take for example IPC. Same in applicable in case of Navy Act, where a person cannot yield benefit of any other act, and this was the view of Madras High Court in P.P. Chandrasekaran v. Government of India and Ors. 1977 CriLJ 67.

Another important provision or point which has to be kept in the mind while dealing with Criminal Procedure is the inherent power provided to High Court under section 482 of the code. But, it would be important to understand that the same powers are not provided to trial courts. The power is to review its judgment in the sense to alter that judgment itself if court is satisfied that some significant evidence or point of law was missed out in the earlier decree. Trial Courts or sub ordinate courts do not posses such kind of power and what they can do is to review its judgment by pronouncing a new decree against its original order. This position was made clear by the Supreme Court in the case of Bindeswari Prasad Singh v Kali Singh AIR 1977 SC 2432, where it was held by the court that there cannot be any question for a court to apply what has not been provided under the Code, and applying what has not been provided under the code would be to surpass its power. As High Courts have this power, they can exercise it unlike judicial officer. And even if such judicial officers or magistrates are satisfied with the fact that some substantial question is to be resolved, then he can alter his decision by means of a new degree and not by altering original decision.

“I am mortified to be told that, in the United States of America, the sale of a book can become a subject of inquiry, and of criminal inquiry too." - Thomas Jefferson

Custom as a Source of Law in Hindu Law

Hindu Law sometimes finds itself in a state of ambiguity while resolving the disputes pertaining to Hindus. At times, there arises certain situations when it becomes difficult for courts to decide whether, in a particular situation, custom would prevail or the text mentioned in the Smritis would prevail. Such problems do not arise when custom has varied over a period of time, but it arises where when it has been practiced for a long period of time uniformly by a certain community, or a religion to be more specific in present dilemma. Generally, it has been a practice which has been followed by several courts to offer primacy to the customs of texts specified in Smritis.

But, another problem crop up as to how and which customs should get primacy, or could be used as a source of law, and for that matter could be used as a law itself. Now, let us spot the points on which these customs are based, points which are not of cultural important but for legal importance. There are three kinds of customs which can be considered to be of some legal importance and above that importance in resolving critical legal disputed in determining the applicability of these customs.

1. Local Custom

2. Family Custom

3. Class Custom.

It would not be intricate to understand the meaning of these customs separately, nor would it be complex to define these customs in our own terms. “Local Custom” is a custom which is prevalent, and has been followed in a particular area or territory for a long period of time, time immemorial to be more specific, and is not against the morality and legal principles. When we converse about legal principles, we mean principles which are fundamental in governing in any society or a nation and which cannot be overlooked while dealing with any of these customs at any point of time. “Family Custom” is often followed only in a particular family, which makes it difficult for the family members to prove the existence of any such custom as required by the case. It is certainly easier to prove the existence of custom which is prevalent in a particular area or class because it is not concentrated to a particular family. In the same manner, “class custom” is the one followed by a particular class.

Before applying these customs as a source of law, it is necessary to check its authenticity. And, it becomes important to make sure whether the custom has been used for a long period of time which in a way makes it ancient, and is reasonable without arbitrariness and is not in the derogation of the general rules of law present in the society. Let us take an example in order to ascertain whether any custom can be accepted as a source of law or not, and for this purpose let us refer to the practice of “Sati”, which had been followed rampantly by Hindus in ancient period. Reasons for burning a woman with her deceased husband can be many, but none of them can justify their reasonableness by murdering a woman. Right thinking members, at that time, might be of the opinion that woman should not claim their right over the property of her husband and they found “Sati” as an easy mechanism to stub out the claim made by them. Another reason could be the maintenance of the woman after her husband’s death, i.e., who would take care of her, and for that matter who would provide her shelter to live in. These were some of the reasons provided by many of the members of the society, at that point of time, to substantiate the fairness of their act. So, it becomes necessary for the courts not to acknowledge such customs which are based merely on arbitrariness and unreasonableness. Here comes the aspect of public morality and public policy, and clear and unambiguous evidence must be there in order to prove it. It should be unambiguous because by claiming the validity of a custom, one is challenging the provision mentioned in the text, let us say Smritis. While proving its validity, another important aspect would come into light i.e. whether such custom has been followed consistently or there have been various instances when such a tradition has been ignored by the members of the society, then how can such a custom be used as an authentic source of law while delivering justice. In such instances, custom cannot be termed as proved and would not make anyone bind to consider it as an authority. This is one of the problems which have been faced by the courts while delivering right justice to the people.

Moreover, it would be a mandate that such a custom has been formed by the common consent of the society and it would always be a matter of fact while ascertaining its authenticity. It would not be possible for a person to claim anything on the basis of the theory, or by alleging that such a custom has been mentioned in some text. This is because, texts which are considered to be authentic, are already present in the form of Smritis,Vedas etc. And a custom, which is authentic, is always context driven and not theory driven. Another aspect which has to be taken into account while dealing these matters is to inquire whether it was only in recent times that the custom has been followed, and if it has been followed only in recent times, then the court decrees based on such a custom would not serve as a precedent. In the earlier part of the post, family custom has been defined and it would be important to know how and when they could be applied. Customs relating to family has been considered by the court as an authentic source for a long period of time, but proving the existence of such a custom is not only difficulty but also time consuming. But, once proven, it would become obligatory to prove any such custom. But, the burden to prove any such existence would again depend on the person alleging it.

Through this post, it may become somewhat clear as to how and when custom as a source of law can be applied while dealing the cases related to Hindu Law.

"Strike an average between what a woman thinks of her husband a month before she marries him and what she thinks of him a year afterward, and you will have the truth about him. "~H.L. Mencken

Constitution - Fundamental Text of a Democratic Nation

Constitution, as generally called, is not an ordinary law present in any democratic country, and found itself placed above than any other law of that particular democracy. At the same time it becomes relatively important to understand the basis because of which this code has been placed at such a superior position, or at the apex position. Embodied provisions under Indian Constitution or any other constitution of a democratic nation have been incorporated by the public residing in India or any other democratic country. By public, we mean to say that the text is prepared with their consent, and this particular text is binding upon them right from the date of its enactment. Envision a society where the power is concentrated to a particular body and the laws enacted by such body binding on everyone but that body itself. Residing in such a society would led to the creation of state where public would remain alienated from their basic rights and there would be an absence of accountability of the body enacting laws and regulations for that particular society. It would not be difficulty envisage that in such a state, body which is formulating law would formulate them in accordance with their convenience. Claiming oneself supreme has always been questioned by a number of critiques at each and every point of time, contending that no one can be above god and must be accountable for his act to some authority. This can be traced from various countries which had monarchy in earlier times, which was question and led to revolutions e.g. France, Britain.

And this challenged the authority of monarch and consequently the notion “King can do no wrong”. If at all there is a presence of someone who can do no wrong, then he is certainly not present in this world. And, the formation of a constitution, modern constitution to be more specific, can be considered as a by-product of these contentions that there should be some kind of accountability of the authority governing each and every member of society, In the absence of such an authority, it would become difficult for a person find the rightful place to challenge an act or law passed by such an authority arbitrariness. Constitution is thus considered to be the fundamental law present the court which had passed it at any point of time, USA being first such country which passed its Constitution in the year 1787, though it has only Seven Articles inside it but is considered to be a permanent and fixed with approximately 17 amendments in its history of nearly 200 years. Even after coming into force, it took a long time for everyone to realize that if an act has been passed contrary to the provisions mentioned under the American Constitution, it would be rendered void. And it was only after the decision in Marbury v Madison in the year 1803 when the then Chief Justice of United States decreed that any law which is contrary to the provisions mentioned under the Constitution would stand void, that supremacy of the constitution was realized. It is fundamental law which has been enacted by all the citizens present in a country wilfully, and they have to comply with the provisions mentioned inside for the purpose of having a peaceful society. It has now become a principle that all laws enacted by the legislature must not affect the spirit of the constitution, and if they do so, they would not have any force of law. It is because of the reason that Constitution has been placed above any other codified law of the country, and the body which formulates a law in itself has been created by the Constitution and it cannot damage its spirit, in other words its creator. Now, a country having constitution as its fundamental law would not have any such authority which at one time had kept it unaccountable to anyone.

Similar situations can be seen in the India, where Constitution has been made with an aim to have a government accountable for its act, and public would be able to remove them from their position if they act contrary to what they have been elected for. And, it is quite necessary for a society to have this text called “Constitution” to make sure that rights of its citizens are respected by everyone. Fundamental Rights provided under the Indian Constitution clearly specify that a citizen or a person, as the case may be, would be able to enforce his right against the state in case it gets infringed. And any law enacted by the legislature would be void if made not in accordance with the Indian Constitution. Albeit, legislature is able to amend the constitution as and when there arises a need to do so, but there are certain provision which cannot be amended at any point of time by the legislature, to be more specific provision which form the part of the basic structure of the Indian Constitution. Role of Judiciary is of the utmost importance in these kinds of situation, because it is the one who decides what is in fact contrary to the Indian Constitution, and in way explains the correct meaning of the wordings provided under this text.

In other words, in the absence of the constitution as the fundamental law in a country, it would become very difficult for anyone to challenge the supremacy and authority of the power which enacts laws, even if it is an oral constitution. And, to ensure that there remains some kind of accountability of the government, there must be a presence of such kind of text.

“Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” - Abraham Lincoln

Opinion formulated by Chief Justice not subjected to Judicial Review

Adversity contiguous to the appoint of an additional judge of a High Court to any tribunal or commission has been fixed by Bombay High Court recently in Mr. V.P. Patil vs Mr. Justice N.D. Deshpande & Ors, where an issue in relation to the appointment of an additional judge as Presiding officer of the Bombay University and College Tribunal was present. One important aspect can be found not in this particular case but in the case which has been discussed by the Bombay High Court when it decreed its decision. High Court discussed N.Kannadasan Vs. Ajoy Khose & Ors decided by the Supreme Court in the year which held that “what is not the subject matter of judicial review is the opinion of the Chief Justice touching upon the merit of the decision but the decision making process is subject to judicial review”

Argument formulated by the petitioner stated that since respondent 1 was not a judge of Bombay High Court, he cannot be appoint to the post as mentioned above because the post requires a person to be qualified as a High Court judge before being appointed to the post. It was further alleged by the petitioner that since two junior judges had been appointed as permanent judge of the Court and not him, it was clear according to him that Chief Justice didn’t consider him appropriate for the post. Section 58 (4) (a) of the Maharashtra University Act, 1994 a person shall not be qualified for appointment as a Presiding Officer of a Tribunal unless he is or has been a judge of the High Court. It was stated by the petitioner that since the judge, according to the Supreme Court collegium, was not eligible for the post of High Court judge at Bombay, his appoint as the presiding officer shall stand void and this petition should be decreed accordingly.

While decreeing, court was of the opinion that what can be challenged is the decision making process would some under the ambit of judicial review and not the opinion which he speaks out while appointment of a judge. Moreover, it has been stated by the High Court that the case referred by the appellant had no relevance in the present case because of a simple reason that judge in that case was charged with probity unlike this case, where judge has not been charged with probity in this particular case. Chief Justice was aware of his credentials which cannot be disputed, and this was the reason why he appointed him as an additional judge of Bombay High Court. In the former case, Chief Justice was more or less not aware of the authenticity of his credentials, and also of the allegations put forward by the petitioner. As long as it is the opinion of the Chief justice, it cannot be disputed in any court of law because of the limitation of judicial review.