Hot Off The PressNews

On 07.10.2016, the Law Commission of India notified a questionnaire inviting public to give their views for the revision and reform of the family laws in the light of the Article 44 of the Constitution which provides for the provision for having a Uniform Civil Code throughout the nation.

The commission seeks the public opinion with the intent to begin a healthy conversation about the viability of a uniform civil code and will focus on family laws of all religions and the diversity of customary practices, to address social injustice rather than plurality of laws. The Commission emphasized that the family law reform has to view women’s rights as an end in itself rather than a matter of constitutional provision, religious right and political debate.

The Commission will then, responding to the demands for social change, consider the opinions of all stake-holders and the general public to ensure that the norms of no one class, group or community dominate the tone and tenor of family law reforms.

Those who are willing to contribute their ideas and opinions should mail the filled questionnaire within 45 days to lci-dla@nic.in or send it by post to:

Law Commission of India,

14th Floor, H.T. House,

Kasturba Gandhi Marg,

New Delhi -110001

Please read the questionnaire here

Case BriefsSupreme Court

Supreme Court: Dealing with an interesting question as to the retrospective applicability of the 1997 Amendment to Section 28 of the Contract Act, 1872, the Bench of C. Nagappan and R.F. Nariman, JJ, answered in the negative and said that Section 28 of the Contract Act, being substantive law, operates prospectively as retrospectivity is not clearly made out by its language as the Amendment does not purport to be either declaratory or clarificatory.

In the present case, the bank guarantees dated 31.1.1996 which restricted the period within which they could be invoked were in question and it was contended by the Union of India that such Bank Guarantees would not be affected by an amendment made one year later i.e. on 8.1.1997 and the relevant date and the relevant law applicable would be as on 31.1.1996, which would be the unamended Section 28. Accepting the aforementioned contention, the Court said that the unamended Section 28 would be the law applicable as on 31.1.1996, which is the date of the agreement of bank guarantee.

The Court considered the Statements of Object and Reasons of the Amendment as stated in the 97th Law Commission Report where it was stated that the Amendment seeks to bring about a substantive change in the law by stating, for the first time, that even where an agreement extinguishes the rights or discharges the liability of any party to an agreement, so as to restrict such party from enforcing his rights on the expiry of a specified period, such agreement would become void to that extent. The Amendment therefore seeks to set aside the distinction made in the case law up to date between agreements which limit the time within which remedies can be availed and agreements which do away with the right altogether in so limiting the time. The Court, hence, noticed that these are obviously substantive changes in the law which are remedial in nature and cannot have retrospective effect. [Union of India v. Indusind Bank Ltd.2016 SCC OnLine SC 944, decided on 15.09.2016]

Case BriefsSupreme Court

Supreme Court: Showing serious concern over the routine appeals to the highest court that result in obstruction of the Constitutional role assigned to the highest court, the Court said that such practice affects the balance required to be maintained by the highest court of giving priority to cases of national importance, for which larger Benches may be required to be constituted and hence, routine direct appeals to the highest court in commercial litigation affecting individual parties without there being any issue of national importance may call for reconsideration at appropriate levels.

The Court was hearing the appeal by the Gujarat Urja Vikas Nigam Ltd against the order of the Appellate Tribunal for Electricity in the dispute arising out of the Power Purchase Agreement. Holding the order of the Tribunal erroneous, the Court took note of the vital issue of composition and functioning of Tribunals and statutory framework thereof especially its impact on working of the Highest Court and in turn on the rule of law and hence, asked the Law Commission to consider the below mentioned questions:

  • Whether any changes in the statutory framework constituting various Tribunals with regard to persons appointed, manner of appointment, duration of appointment, etc. is necessary for strengthening the rule of law?
  • Whether it is permissible and advisable to provide appeals routinely to this Court only on a question of law or substantial question of law which is not of national or public importance without affecting the constitutional role assigned to the Supreme Court having regard to the desirability of decision being rendered within reasonable time?
  • Whether direct statutory appeals to the Supreme Court bypassing the High Courts from the orders of Tribunal affects access to justice to litigants in remote areas of the country?
  • Whether it is desirable to exclude jurisdiction of all courts in absence of equally effective alternative mechanism for access to justice at grass root level as has been done in provisions of TDSAT Act (Sections 14 and 15).

The bench of Anil R. Dave and Adarsh Kumar Goel, JJ asked the Law Commission to submit the report within one year, if possible and directed that the matter be placed before a 3-judge bench in November, 2017. [ Gujarat Urja Vikas Nigam Ltd. v. Essar Power Limited, 2016 SCC OnLine SC 803, decided on 09.08.2016]

Case BriefsSupreme Court

Supreme Court: The bench comprising of T.S. Thakur CJI and FM Ibrahim Kalifulla J. accepts Justice RM Lodha panel’s recommendations almost in toto on structural reforms in the BCCI in order to streamline the working of the BCCI and possibly prevent any aberrations or controversies in which it has been embroiled in the past.

One of the most important recommendations that is accepted is the recommendation which disqualifies Ministers and Public Servants from holding offices in the State Associations or BCCI. The Court was of the opinion that the game of Cricket does not flourishes in this country because any minister or civil servant holds office in the State Associations or BCCI. Rejecting the contention that favours which the BCCI receives will disappear just because a Minister or Civil Servant is not an office bearer in the State Association or BCCI, the Court said that what is legitimately due to the game will not be denied to the game merely because Ministers or Civil Servants do not happen to be office bearers as there may be an overwhelming number of Ministers and Bureaucrats who are passionate abMinisters and Puout the game and would like to do everything that is legally permissible and reasonably possible within the four corners of the law even without holding any office in the BCCI or the State Associations.

Regarding bringing BCCI under the purview of RTI, the Court said that since BCCI discharges public functions and since those functions are in the nature of a monopoly in the hands of the BCCI with tacit State Government and Central Government approvals, the public at large has a right to know and demand information as to the activities and functions of the BCCI especially when it deals with funds collected in relation to those activities as a trustee of wherein the beneficiary happens to be the people of this country and hence, the Law Commission of India should examine the issue and make a suitable recommendation to the Government.

It was further said that the recommendation made by the Committee that betting should be legalized by law, involves the enactment of a Law which is a matter that may be examined by the Law Commission and the Government for such action as it may consider necessary in the facts and circumstances of the case. [Board Control for Cricket v. Cricket Association of Bihar, 2016 SCC OnLine SC 709, decided on 18.07.2016]

Law School NewsOthers

Dr. Bimal N. Patel ,director of Gujarat National Law University has been appointed as a  member(Part- time) of the 21st Law Commission of India.

The 21st Commission is constituted for a period of three years from 1 September 2015 to 31 August 2018

He has been serving as the Director of GNLU since 2008

Dr. Patel obtained his PhD in International Law from Leiden University (State Practice of India and Development of International Law) and PhD in International Law and Governance from Jaipur National University, India (Responsibility of International Organisations).

Case BriefsHigh Courts

Allahabad High Court: The bench of Pramod Kumar Srivastava, J. held that granting divorce on the ground of irretrievable breakdown of marriage is exclusive within jurisdiction of the Supreme Court and is beyond jurisdiction of any other Court in India.

Against the judgment of trial court, Civil Appeal  was preferred by wife, which was heard and dismissed by the judgment dated 14.12.2011 of Additional District Judge/Special Judge, Gautam Buddha Nagar. In this judgment, lower appellate court had independently appreciated the evidences and held that parties are living separately from year 2002 and during the very short period of living together, their relationship was not normal.

The High Court after perusing the arguments observed that there is total absence of mutual respect and the behavior of both the parties indicates the embittered relationship. Both are still undergoing under a traumatic experience. Thus, Court dismissing the appeal held that continuance of such a relationship will amount to mental cruelty. But the Counsel for appellant argued that the ground of “irretrievable breakdown of marriage’ is not sustainable. He stated that this ground can be taken by the Supreme Court only for granting the divorce in exercise powers under Article 142 of the Constitution of India and this ground cannot be taken by any other Court including High Court because such ground is not mentioned in Section 13 of Hindu Marriage Act. The Learned Counsel for Respondent stated that marriage had reached the point of no return which cannot be repaired, but such ground is not mentioned in Section 13 of the Hindu Marriage Act.

The Court while accepting the above allegations suggested the Law Commission of the State to take appropriate steps to consider for incorporating the ground of “irretrievable breakdown of marriage’ as grounds of divorce in Section 13 of the Hindu Marriage Act. [Puja Suri v. Bijoy Suri, 2016 SCC OnLine All 300, decided on 26.05.2016]