The Fifth Rebellion - VII
Her crisp, clear and unvarnished warning was the first indication that I was pressing on a dangerous line.
The intervening step she had quickly scribbled
in my notebook told me why I sat puzzled so often
while others carried on fluently. Tandon Sir was
skipping steps because certain steps in the equation
were “understood” and didn’t need to be expressly
written. And while it was obvious to everybody
else, they being excellent students of math, it
baffled me because I was not as proficient with the
hop-step maths practiced at higher levels, which
was also because at our school skipping steps was
discouraged and each step carried certain marks,
which meant that getting the wrong answer did not
translate to a zero as long as the steps were right.
Conversely, if the answer was right and the steps in
the equation leading to the answer were missing, it
indicated to our teachers’ minds that the right answer
most likely came from the benevolent neighbour
in the examination hall. But at the advanced level
mathematics taught to higher classes, skipping steps
was usual.
Anybody familiar with mathematics knows
that if one skips writing down steps in solving the
equation, the equation on paper not only starts
moving from left to right but also from up to down
with the number of steps per line of the equation
doubling, which can not only be very confusing
but may also generate erroneous results. That’s the
reason why when math is deployed at the highest
scientific levels, all steps are duly and diligently
recorded to facilitate subsequent reviews. However,
at the 11th and 12th level, doing mental calculations
and skipping steps saves time, which helps scoring
better in board examinations, and also speaks to
mathematical proficiency. So, while skipping steps
helped, it was a problem for me, and her directing
my attention to it worked like magic.
But just as she wrote down the missing step in
my notebook, Tandon Sir declared the class over,
and while I was considering how the missing step
changed things, the class was dispersing as Tandon
Sir quickly walked into his house from the classroom,
as usual. I turned to say “thank you” but she had
already left, like most of my other classmates. I
stepped out and found Anuj waiting for me. I looked
around, but she was nowhere in sight. I told Anuj to
wait right there, picked my bicycle and rode towards
the main road. She was walking down that day even
though she rode a bicycle mostly.
Having shone the light through the darkness,
and solving a fundamental problem for me, she had
walked away without a word. It also meant that
she had been looking into my notebook and noting
my frequent puzzlement more often than I thought
but that hadn’t occurred to me as yet. My dominant
thought was that I was happy and grateful and had
LAWYERS UPDATE • AUGUST 2023
missed thanking her.
“Hey… hi… thank—”.
“Please don’t talk to me on the
road,” she said plainly, sternly
and without looking at me, HemRaj Singh
and resumed walking without
another word. She gave me no time to respond, and
I turned my bicycle around and pedalled back to the
coaching center, where Anuj stood waiting for me.
“Kya hua?” “Kuch nahin.” He didn’t press, and I
had nothing to say anyway. But I kept thinking about
what it meant. Why was it wrong to talk to her on the
road? What did the road have to do with anything?
She had been oddly specific. Not “don’t talk to
me”, but “don’t talk to me on the road”. Not back
then, but in retrospect I realise that I was standing
at the fault lines of the traditional and the modern
worldviews of gender relationship. If it was alright
to say a simple “thank you”, how was it wrong to
say it on the road? For a teenager not particularly
alive to the social mores in their fine contextual
colours, hers was a baffling response. Also, I could
not imagine saying “thank you” to any of my girl
classmates from school on the road and receive
the same response, or, for that matter, any response
other than a polite acknowledgement followed by a
few casually dismissive words like “oh it’s fine”, or
“oh come on, no need to be that formal”, or some
such.
What I hadn’t realised was that the society is
almost never socially homogenous, meaning that
at any given point of time there are many smaller
societies and social pockets within a larger society,
which might itself be a part of an even larger,
overarching social structure governed by different
and even conflicting social norms at different
levels. And sometimes, determined by the ever-
shifting context, coming in conflict with some of
these norms could result in violent and potentially
life-threatening situations, one of which situations
could well be created by the mode and manner
of interaction between two adolescent, unrelated
members of the opposite sex. Mohtarma’s crisp, clear
and unvarnished warning was the first indication
that I was pressing on a dangerous line and her
ready rebuff was intended to smack me back to the
safer side of it well before I crossed over. But I had no
respect for the boundaries I did not understand and
recognise and she did not know me enough to know
that. In backing off I was only respecting her wishes
and not the underlying social norms. Societal mores
did not find me friendly quite frequently. That was
soon going to be a problem.
…to be continued
7
 GANDHIJI’S THOUGHTS ON
THE LAW AND THE LAWYERS
A JUDGES INDICTMENT
I condense the following from a newspaper report:
“It is 'extremely common for advocates for the defence in criminal cases to argue that the prosecution
story is an entire concoction by the police, and in the vast majority of cases no evidence whatever,
whether elucidated in cross-examination or offered in examination-in-chief, is ever produced in
support of this argument. Now either the contention is raised on direct instructions of the client, or it is
deliberately raised by counsel without any instructions from the client. In the former case the accused
has aggravated the heinousness of the offence with which he is charged. In a clear case of this kind
the tribunal trying the case should take this into account as a circumstance warranting an increase in
the sentence. In the latter case where the legal practitioner has acted without reasonable cause he is
guilty of the grossest professional misconduct. cross­-examination on these lines is often grossly abused,
and it is the duty of the trying judge, if he has any suspicion when an advocate begins an attack upon
the prosecutor or a witness, to demand from the advocate an assurance that he has good grounds for
making the suggestion. If such is not forthcoming, cross-examination on these lines should be promptly
stopped. If an assurance is given, but if it appears on the termination of the trial that no such grounds
has existed, the tribunal should bring the conduct of the advocate to the notice of the High Court. I make
these observations in order that a cheek may be placed on a growing and. serious evil.”
These are the remarks of the Chief Justice of the Patna High Court.
I have said enough in these columns to show that justice is practically
Unobtainable in the so-called courts of justice in India. But I was unprepared for a Chief Justice (assuming
that he is correctly reported) becoming the framer of a gratuitous indictment against lawyers and their
clients. These remarks of the Chief Justice of the Patna High Court, in my opinion, amount to a threat to
the accused persons and their counsel. If the fear of an increase in sentence or being disbarred hangs like
Damocles' Sword on the accused person or his counsel as the case may be, it would be impossible for
either to impugn the conduct of the police. Whatever the learned Chief Justice's experience may be, the
“experience of the man in the street is, that in a vast number of cases the police story is manufactured,
and the growing evil is not in the accused or his counsel, but it is in the police who therefore need to be
checked in their excessive zeal to fasten a particular crime upon someone. The ordinary policeman is in
mortal fear of degradation or dismissal, if he cannot secure convictions.
It becomes therefore his interest to manufacture a case in the absence of reliable evidence. The judge,
therefore whose duty is to presume the innocence of every accused person coming before him, would
think twenty times before he puts a single obstacle in his way. Where is the lawyer who has not often
felt the truth of the statement which he makes but which he is unable to prove? And even a Charles
Russell will be hard to put to it to demonstrate the truth that he feels within himself if for fear of being
disbarred in case he fails to prove' his charge, he is hampered in the course of his cross-examination
or examination-in-chief. The Piggot forgeries would never have been proved but for his fiery cross-
examination. A lawyer who believes in the innocence of his client, whether he is prompted by him or
no, is bound, in order to discover the truth, to impugn by way Of cross-examination or otherwise the
prosecution story. This however is commonsense and common law, but both are at a discount in India's
courts of justice. When it is a question of the prestige of the Government which, in its tum, depends
upon the prestige of the police, the judges consider it their duty to protect that prestige by turning
prosecutors themselves. It is sad, but it is true. The Chief -Justice of the Patna High. Court is to be
congratulated upon his boldness in emphasizing the fact.
Young India, 19-9-1929.

8 LAWYERS UPDATE • AUGUST 2023

LAWYERS UPDATE • AUGUST 2023 9
 Hon'ble Mr. Justice
Compiled by:
Pradeep Arora
Prashant Kumar Mishra
“ By constant self-discipline and self-control,
you can develop greatness of character.”
– Grenville Kleiser
“Watch your thoughts, they become words,
watch your words, they became actions,
watch your actions, they became habits,
watch your habits, they became your
character, watch your character, it becomes
your destiny."
– Anonymous
“I was always looking outside myself for
strength and confidence, but it comes from
within. It is there all the times.”
– Anna Freund
“People grow through experience it they meet
life honestly and courageously. This is how
character is built."
– Eleanor Roosevelt Hon’ble Justice Prashant Kumar Mishra was born
“He harms himself who does not harm to
on 29th August, 1964 at Raigarh (Chhattisgarh).
another, and the evil pain is most harmful to
the planner." Took B.Sc. and LL.B Degrees from Guru Ghasidas
– Hesiod University, Bilaspur (Chhattisgarh). Enrolled as an
“Holding on to anger, resentment and hurt Advocate on 4th September, 1987. Practiced law in
only gives you tense muscles, a headache District Court at Raigarh, High Court of Madhya
and a sore jaw from clenching your teeth. Pradesh at Jabalpur and High Court of Chhattisgarh
Forgiveness gives you back the laughter and at Bilaspur and dealt with Civil, Criminal and
the lightness in your life." Writ branches of law. Was designated as Senior
– Joan Lunden Advocate by High Court of Chhattisgarh in January,
“The man who has confidence in himself 2005. Had been Chairman of Chhattisgarh State
gains the confidence of others.” Bar Council. Was appointed/co-opted Member
–Hasidic saying of the Rule Making Committee of High Court of
“To succeed is nothing, it’s an accident. But
Chhattisgarh. Had been Chancellor's Nominee in
to feel no doubts about oneself is something
very different; it is a character.” the Executive Council of Guru Ghasidas University,
– Maric Leneru Bilaspur. Was associated with Hidayatullah
“ Too many people are thinking of security National Law University, Raipur (Chhattisgarh)
instead of opportunity. They seem more as its Ex-Officio Member in the Executive Council.
afraid of life than death." Served as Additional Advocate General for the
– James F. Byrens State of Chhattisgarh from 26th June, 2004 to 31st
“Sometimes when we are generous in small, August, 2007 and thereafter as Advocate General
barely detectable ways, it can change someone for the State from 1st September, 2007 till elevation.
else’s life forever." Elevated as a Judge of High Court of Chhattisgarh
– Margaret Cho on 10 December, 2009. Was Acting Chief Justice of
These quotes have been sourced from the immense High Court of Chhattisgarh from 1st June, 2021 to
intellectual wealth produced by several generations of 11th October, 2021. Appointed as Chief Justice of
thinkers from all walks of life. These nuggets of wisdom High Court of Andhra Pradesh and assumed on
have inspired and motivated leaders and commoners alike
13th October, 2021.
since time immemorial. We believe our readers would
also be no less benefitted by this repository of preserved Elevated as Judge of the Supreme Court of India on
experience. 19th May, 2023.

10 LAWYERS UPDATE • AUGUST 2023

 Purnima Arora LL.B (Gold Medalist), Advocate, Delhi High Court
Though even after 75 years of Independence the representation of women both at the Bar and the Bench has been
meagre, we have numerous examples of women who have fought all odds to emerge as a winner in this male-
dominated profession and who have made a name for themselves. This column is an ode to such fighters.

JUSTICE JYOTI SINGH Administrative Tribunal.

Born on 1st October,1966,
Justice Jyoti Singh graduated
in Botany (Hons.) from
Kirori Mal College, Delhi
University. She acquired
her LL.B. degree from the
Campus Law Centre, Delhi
University, and thereafter,
enrolled with the Bar Council
of Delhi.
Before her elevation as a
Judge, she practiced before
the Supreme Court of India,
the High Court of Delhi, and
various Tribunals.
She was a Senior Counsel
for the Government of India
in the High Court of Delhi,
and a Standing Counsel for
UPSC, DTC, and for Delhi
Government in the Central
She was an Additional
Standing Counsel for NDMC
and a Panel Counsel for the
Provident Fund, DDA and
Canara Bank.
Justice Singh was a member
of the Delhi High Court Legal
Services Committee and
regularly participated in the
Lok Adalats and workshops
organised by the Committee.
She specialised in service
matters, particularly Armed
Forces and Para-Military
Forces.
She was appointed as an
amicus curiae in a number of as a Senior Advocate by the
cases by the High Court of High Court of Delhi. And on
Delhi and the Armed Forces 22nd October, 2018, she was
Tribunal. elevated as a Judge of the
In 2011, she was designated High Court of Delhi.

Secundum allegata
probata:
According to the pleading
and the proofs, The basic rule of
law of pleadings is, that a party
can only succeed according to
what he has alleged and proved
otherwise on the principle of
secundum allegata probate -
party is not allowed to succeed
where he has not set up the case
which he wants to substantiate.
The basic rule of law of
pleadings is, that a party can only
succeed according to what he has
alleged and proved otherwise
on the principle of secundum
allegata et probata-party is not
allowed to succeed where he
has not set up the case which
he wants to substantiate. This
rule that pleadings and proof
must correspond, rests upon the
principle that no party should
be prejudiced by being taken by
surprise by varying the case as
originally set up. It is true that it
is not every variance between the
pleadings and the proof which
offends the rule of secundum
allegata et probata. Where
there is no element of surprise
or when a new claim set up is
inconsistent with the allegations
made in the plaint, the plaintiff
will not be refused relief as in
such a case the defendant is not
being prejudiced. Moreover
this rule of pleadings applies
to questions of fact and not to
pure question of law, which did
not depend for their decision
upon substantiation of the facts
alleged.

LAWYERS UPDATE • AUGUST 2023 11

Poetically Legal

“THE WITS : CIVIL & CRIMINAL” -A LEGAL DESTINY

(For lighter note. Interpretation may vary )

A Civil !
A Criminal !
Both Power Games
Not to Decipher Sadiya R. Khan
One another Were not the Quotes of Wise Advocate
Nor Supersede Detested by Vice
Know the Game Limiting what criminal say
Thou! Shall know the Player Allows Civil to be Right!
A Civil , A Criminal On a lighter paradigm
Both Power Games!!! Just to Wit with the mind
For not Criminal
Hidden is never surfaced Is just an empty mind
Neither surfaced can be hidden It all begins
Prove the Guilt Where the world is stubborn
Then One is ridden To prove their own ..
Surviving the Guilt Right & Rights !!!
Learn Legal Balance
Destruction of Evidence What Builds Civil?
Is yet another Criminal! What Builds Criminal?
Boundaries & Words
Not Intimidated by opinions What is True?
The Victory of a Civil What is False?
Now Strangely - Intimidation itself Who build “ Fall”
Is another Criminal !!! Who created “ Walls”
Who build “Lawlessness”
Just Personified thoughts Who build “ Chivalry”
For Question by a Civil Destiny of Law
…Is Solution to a Criminal !! To be Followed
For a Question by a Criminal By ‘ Few All’
May confer…Eureka to a Civil !!!
Wisdom is eternal
The Flowing Arguments Minds born
Emit thousand words Minds die
For Building Legal Foundation For capacity to self-submerge
Is the turning eye
O ! The Balance
Wider thoughts
Civil Vs Criminal
Finer actions
Tough to resolve
Neither Civil nor Criminal
Not cumbersome afresh
Comparisons belong to Feeble!
Duo dignity
The fact of ‘Truth’
Not a Fall (season) to impress!
Can never get closer
‘Juxtaposition’ itself difficult
Truth is Truest
The phonetics too stylish Holds ‘Maximised Facts’
Beyond comprehension of the timid Is not a misnomer
Wisdom is not limited to Civil O! The Altruist
Or More from Criminal Nothing Drowns
Combat each other Until Intended
An Understanding attained The Fins
With Great Perils!!! The Civil & The Criminal !!!

12 LAWYERS UPDATE • AUGUST 2023

 USE A FULL STOP PLEASE
I so often remember my
English language teacher. The
power of punctuation and the
importance of a full stop. I think
many forget the lessons we
learnt in school. People don’t
remember where to put a full
stop. Such people frighten me,
because I have no idea when the
conversation will stop. They can
go on and on, with little concern
about the interest of the listener.
I feel I am stuck in a situation
where I don’t know the exit route.
A full stop is probably
the most known and obvious
punctuation mark we all are
aware of. The basic use of it is quite
simple: whenever there is a logical
end to a thought, a full stop is used
to mark the end. The irony is that
sometimes the flow of thoughts is
so fast, that a full stop is forgotten
about.
In writing, using full stops
correctly can greatly improve
the clarity of writing. It helps
to separate complete thoughts
and ideas, making it easier for
the reader to follow the flow
of the text. Without full stops,
sentences can become long and
rambling, making it difficult for
the reader to understand the
meaning. It acts like a "stop sign"
for the reader, signaling the end
of one thought and the beginning
of another. This gives the reader
a chance to pause and process
the information before moving
on to the next sentence, which is
important for understanding the
overall meaning of the text.
The issue is very clear where
writing is concerned. The
problem is in conversations. Am I
supposed to stand with a stop sign
to get a breather? Compulsive
talking (or talkaholism) is
talking that goes beyond the
bounds of what is considered
to be socially acceptable. The
main criteria for determining if
LAWYERS UPDATE • AUGUST 2023
someone is a compulsive talker
is talking in a continuous
manner or stopping only when
the other person starts talking,
and others perceiving their
talking as a problem. Personality
traits that have been positively
linked to this compulsion
include assertiveness,
willingness to communicate and
self-perceived communication
competence. Studies have
shown that most people who
are talkaholics are aware of the
amount of talking they do, but
are unable to stop, or do not see
it as a problem.
Compulsive talking can drive
people away, which in turn can
leave that person with no social
support. According to Elizabeth
Wagele, an author of best-selling
books on personality types, there
are different ways to handle
compulsive talkers. Such coping
techniques include changing
the focus of the conversation,
taking attention away from
the talkaholic, leaving the
conversation, and creating a
distraction.
Conversations shouldn't be
a one-way experience, but more
like a tennis match, with the
conversation, like the tennis ball,
going back and forth between
people. If you have a tendency
to overtalk, pay extra attention to
social cues while you're talking.
If people start to look around,
fidget, or check their watch or
phone, you may have overstayed
your verbal welcome.
So what can you do if you’re
troubled by a co-worker, friend,
or loved one who talks too much?
Here are five simple suggestions
that might help:
1. First, listen—but not for too
long. As you are listening, try to
formulate for yourself what this
person is trying to communicate:
Is it a wish to be admired? A
Shilpa Bhasin Mehra
thought that they cannot get out
of their head? A feeling that they
cannot manage?
2. After listening for a little
while and formulating what they
are trying to communicate, ask
them if they would mind terribly
if you interrupt them.
3. When you interrupt, be
ready to say something about
what you hear them saying.
Don’t go for a deep psychological
explanation. Something simple
and to the point, but if possible,
something that reflects something
positive about them.
Don’t stop with a comment
about them. Add some experience
of your own that will confirm
that you understand what they’re
experiencing. A memory of a
similar event, a similar feeling, a
funny story—anything that gives
you a chance to share your own
experience but that you can tie to
theirs.
Stop the conversation when
it goes on too long. It’s really
not damaging to tell someone
who you’ve been listening to for
more time than you have to spare
(and more than you want to give
away) that you’re really sorry,
but you have work you have to
do and you’ll have to continue
this conversation later. And if
they are the kind of person who
comes back later to continue the
conversation, just say, “No, sorry,
I’m busy right now"—because,
finally, you have the right to
protect your own boundaries.
“We have two ears and one
mouth and we should use them
proportionally”says Susan Cain,
so wisely.
13
 ARTICLE
THE DELIGHTFUL MR. DAPHTARY
- A WIZARD OF WIT
Dr. Manish Arora of Law
and Justice Publishers sent me
this delightful book about this
delightful lawyer, Mr. C.K.
Daphtary about three weeks
back. His life journey was
spread over from 1893-1983. 9
decades. 90 years. I never had
the opportunity of meeting
him. His anecdotes. His pithy
remarks had been part of me.
Since the year 1969. I read them
from different collections. I heard
them from different judges and
lawyers. I enjoyed them. I shared
them. In my Classroom lectures
and sessions with law students,
judicial officers and judges. I
relished this Daphtary delicacy.
The Book serves the delicacy. The
flavor continues.
Many had requested
Mr. Daphtary to write his
autobiography. He did not
quench their thirst. This book is
a compilation by Fali S Nariman
and Vinoo Bhagat of short
biographies and write ups by
those who had experienced him.
Also his different shades of his
personality. In some ways, this
is a much better recipe. Writing
about self is always different. Nay,
14
not easy. During nine decades,
many came in contact with him.
They have written about him.
This book is an amalgam of those
writings. They have painted his
colorful personality.
Why delightful Mr. Daphtary?
A legend had grown around him.
Possessed of irrepressible sense
of humour. There was wit in his
wisdom. There was wisdom in
his wit. Wit is something which
everyone enjoys. Some fear it.
Some love it. Because it is not
aimed at them. Daphtary’s wit,
everyone liked and loved. He
used it with good nature. Not to
hurt anyone. But to put everyone
at ease. He was a wizard of wit. A
grand master of art of advocacy.
This book is a collection of large
number of entertaining episodes.
Telling anecdotes. Colorful
conversational quips. He pulled
his judicial limbs. Also his friends
at the Bar. Dr. L.M. Singhvi admits
that he often pulled his leg. Also
he condoned his many lapses.
Because, he belonged to his
fraternity of pipe smoking. I say,
this is a reasonable classification.
No discrimination.
Mr. Daphtary had some
exceptional qualities. The quick
grasp of the case. The mastery
over the language. He knew
exactly what to say. When to
say. Even what not to say. His
brilliance equaled his wit. His
unshakeable integrity was
integral part of his personality.
I am happy to share some of
his wit. He used it. To resolve and
dissolve some complex issues. In
court. In particular.
Mr. Fali Nariman came
from Bombay to appear for the
appellant before the top court. Mr.
Daphtary represented one of the
LAWYERS UPDATE • AUGUST 2023
Dr. Balram K Gupta
Professor Emeritus
Sr. Advocate
Director (Academics), CJA
respondents. From the trial court,
the matter came on appeal before
the High court. The respondent
had not pursued the appeal. In
the Supreme court, Mr. Daphtary
appeared for the respondent. Mr.
Nariman objected. Mr. Daphtary
softly quipped: “Justice is like
the slow train. You get off at
one station. Then run and catch
it at the next one.” The court
dissolved in approving laughter.
The objection was rejected. Mr.
Daphtary was allowed to present
his case. This is his presence of
mind. What skillful response.
What wit.
It was a complicated case.
During the hearing before the
Supreme court. The judge asked,
Mr. Daphtary, are you not aware
of the case which is covered by a
decision of this court? Daphtary
responded,” the trouble is that it
has been uncovered by another
decision.” How comfortably he
clinched the matter.
In 1968, Mr. Daphtary had
resumed his private practice.
Daphtary and Nariman, both
went to Bombay High court to
appear against each other in a
particular case. Mr. Nariman
finished his arguments. Mr.
Daphtary, the great dramatist
rose to argue. He spluttered, my
learned friend. He then cleared
his throat. Again, he said, my

learned friend. He again cleared
his throat. The judge said,
Mr. Daphtary, why don’t you
sit down. A sip of water. Mr.
Daphtary said, no my lord. It is
not my throat. It is the arguments
of my learned friend, I simply
can not swallow them.
Justice Y.V. Chandrachud,
former CJI records in his tributes
to Mr. Daphtary. He argued a
matter in the Bombay High court
under the war time Act 1944.
Making bricks without a license
was declared an offence. Mr.
Daphtary was arguing on behalf
of the person who was convicted
under the order. Before the High
court he said in his inimitable
style that there was a difference
between caking, baking and
making. The bricks. His client
was caking and baking. Not
making. Making bricks was the
result of caking and than baking
them. What play of words this
makes all the difference.
It was during mid 1950’s.
The Central Govt. set up a
commission. It consisted of
justice S.R. Tendulkar and two
other members. The notification
had been issued under the
Commission of Inquiry Act
against Dalmias. Accordingly, it
was challenged in the Bombay
High court. The ground was,
why Dalmias have been singled
out? There are other companies
also. Equally and similarly
situated. The notification was
said to be in violation of article
14. G.S. Pathak and H.M. Seervai
argued on behalf of Dalmias.
When they concluded, the bench
of CJ M.C. Chagla and justice S.T.
Desai was completely with them
and against the Govt. Daphtary,
represented the Central Govt.
He stood up. M.C. Chagla had
his steam out. Daphtary was
cool and quite. Daphtary was
told that the notification was
LAWYERS UPDATE • AUGUST 2023
discriminatory. Daphtary started.
There was pin drop silence. He
gave the example of a person who
had been given the responsibility
of cleaning the dirty pond. He
decided to pick out the largest
frog first. Daphtary argued that
this was precisely what had been
done with Dalmias. After that, the
oratory of Daphtary played the
magical role. He sailed smoothly.
There is a second version of
this interesting case. Daphtary
heard the strong observations
of M.C. Chagla. Then Daphtary
made the remarkable statement:
“ My Lords, several cases have
been cited by my learned friends
on Article 14. I will deal with
them, all of them. But there is one
underlying principle. Article 14
is not infringed if the people are
not of the same kidney. Dalmias
and others are not of the same
kidney.” Chagla smiled and said,
you mean the kidneys of Dalmias
are worse than those of others. No,
my Lord, Daphtary responded.
It is not a question of better or
worse. They are not the same.
Justice S.T. Desai said, if kidneys
are different, does it mean that
Article 14 is not applicable?
‘Precisely’, was the response of
Daphtary. Kidneys had lightened
the atmosphere. Daphtary turned
around and said, now let us have
the authotities. He succeeded
in getting the Dalmias case
dismissed. This is blending skill
with wit. It is very rare. Still, one
comes to experience such mixing.
Once in a while.
The best take from this book
is, how comfortably wit can help
in court. Daphtary was waiting
for his case before an English
Judge. The judge passed an
adverse order against a young
advocate in another case. The
young advocate told the judge
that he was surprised at the
order. The judge got angry. He
ARTICLE
told him, this remark amounted
to contempt of court. The judge
sought the opinion of Daphtary.
Daphtary smiled and said, if the
young lawyer had been at the Bar
as long as he had been, he would
not at all be surprised at anything
his lordship does. The judge had
a hearty laugh. The lawyer was
spared. No punishment.
I would equally love to
share some interesting quips
of Daphtary outside the court-
room. Justice K.T. Telang of the
Bombay High Court had retired.
The tradition was to unveil the
portrait of the judge. Daphtary
was the Advocate General. He
paid rich tributes to the judge.
Before resuming his seat at
the end of his address, turning
towards the judges, Daphtary
said: I am sure, in due course of
time, each of my lord present
today would be duly hung.
Another one. India became
Republic in 1950. There was
prohibition in Bombay. Daphtary
was presiding at the Bar dinner
to celebrate the event. He made
a brilliant speech. In the end,
he lamented. Indian Re-pub-lic
was without a ‘pub’. Without a
‘pub’, it would become a ‘relic’.
The last one. Daphtary and a
judge were in conversation at a
social gathering. The judge told
Daphtary, woman is always right
and the man is always wrong.
Spontaneously, Daphtary asked
the judge: If a man tells a woman
that she is right, is the man right
or wrong? They both had a
hearty laugh.
I would sincerely urge every
lawyer and every judge must
possess this book. This is the best
gift that one can give. Reading
this book. I have laughed many a
time. On different days. Different
occasions. This book will nurture
the coparcenary of happy minds.
15
COVER STORY
Hasan Khurshid, Associate Editor
hasan.khurshid@lawyersupdate.co.in
"Ham laye hein toofan say
kashti nikal kay;
Iss desh ko rakhna meray
bachon sambhal kay"
(We have rescued the fiercely
capsized boat from a storm;
Guard this country with utmost
care , Oh, my children).
This was the patriotic song
of 1954, Jagriti film, sung by
Mohammad Rafi. The song has
had a cathartic and therapeutic
effect upon countrymen and the
same is more relevant as of today.
We need to resolve that the winds
of hatred and polarisation do
not blow up the 'nest of singing
birds' that is Bharat!
The prime minister Narendra
Modi has once again made a
strong pitch for implementing
a Uniform Civil Code (UCC).
Modi's comments on UCC before
the BJP workers in Bhopal on June
27, 2023, triggered an animated
16
debate between BJP and the main
Opposition parties, Opposition
dubed it as diversionary ploy.
The All India Muslim
Personal Law Board (AIMPLB)
and Shiromani Akali Dal (SAD)
outrightly rejected it. Sharad
Pawar-led NCP said, it is a ploy
ahead of elections. The SAD
leadership said that the UCC
would have an adverse impact on
minority and tribal communities.
It said that it will oppose the law
both in Parliament and in front of
the 22nd Law Commission.
The AIMPLB held an
emergency Online meeting
late on June 27, 2023, itself and
decided that the Board will
oppose UCC and will present
their views in front of the Law
Commission.
Maulana Khalid Rasheed
Farangi Mahali on June 28, 2023,
at Lucknow said, for the past
LAWYERS UPDATE • AUGUST 2023
several years, politicians have
been raising the issue of UCC
before elections. This time also,
the issue has come up before
2024 elections. He further said, "
Our stand is that UCC is against
the spirit of the Constitution
and we will oppose it tooth and
nail. India is a country where
many religions and cultures are
followed. So the UCC is not only
going to affect the Muslims but
also the Hindus, Parsis, Sikhs,
Christians, Jains, Jews and other
minuscle minorities.
P. Chidambaram, former
Union minister said that the
prime minister was batting
for UCC to diverert peoples'
attention from unemployment,
price rise, hate crimes, etc. He
also alleged that BJP is using
UCC to polarise the society. "The
PM is making it appear that UCC
is a simple exercise. He should
 COVER STORY

read the report of the last Law
Commission that pointed out it
was not feasible at this time. The
nation is divided today owing to
the words and deeds of the BJP.
The imposition of UCC on people
will only widen the dvision."
AIMIM president Asaduddin
Owaisi said,"Modi was trying to
bring in a 'Hindu Civil Code'.
He is trying to snatch away
pluralism, diversity in the name
of UCC.
Communist Party of India
(Marxist) Kerala State secretary
has recently declared in
Thiruvanathapuram that CPI (M)
would oppose tooth and nail all
moves by the "communal BJP" to
bring in the UCC in the country.
There is strong opposition
to UCC not only from Muslim
Personal Law Board but also
from Sikhs, Christians and tribal
groups. Sushil Modi, chairman of
BJP's Parliamentary panel on law
on July 3, 2023, held an important
meeting on the issue and
emphasised on keeping tribals of
the North-East out of the purview
of the UCC. He advocated that all
laws have exceptions.
Modi's proposition of
UCC has ignited contentious
atmosephere in the country.
The government must seriously
consider the implication of
such a code, particularly on
personal rights and cultural
diversity of minorities in the
country. Plurality is the soul
of democracy. Our country's
diversity has been the bedrock of
our democratic values, fostering
tolerance and inclusivity. The
dangerous proposal of UCC
threatens to homogenise the rich
cultural heritage and suppress
the individual rights of minority
communities by eliminating their
personal laws.
If the codification of Article 44
had been done on 26th January,
1950, why then the codification
of Hindu laws was done in the
year 1956? The UCC is a complex
issue. It has numerous angles to
take in to consideration, such as
political, legislative, religious
and contrasting Constitutional
perspectives between Articles 44
and 371, 14, 15, 19, 50.
It is matter of concern that
Islamic personal laws pertaining
to marriage, divorce, dower,
maintenance, succession,,
inheritance, wills, legacies,
adoption and guardianship
are immutable and are binding
on the faithful to follow them
throughout life. The denial of
Quranic jurisprudence shall
make the faithful expelled from
the faith. As such, government's
proposed move is simply an
attack on the fundamental
observance of the Quranic laws.
There are many more things
outside the realm of personal law
legislation that marks followers
of one religion distinct from the
followers of the other religion.
For example, Muslims, Hindus,
Sikhs and Christians have
seperate places of congregational
prayers. Muslims offer 'Namaz'
and collectively observe fast
from dawn to dusk during the
whole month of Ramzan. Their
dead are burried rather than
cremated. Muslims solemnise
marriage with Nikah, while the
Hindus do seven pheras (rounds
around sacred fire). As such, why
to allow so many cultural rituals
in one country? Why should
there not be Uniform Cultural
Rituals (UCR)?
The RSS proponents raise the
issue of discrimination against
Muslim women including the
prevalence of polygamy which
is a myth.They dont realise that
Hindu and Sikh women too
continue to suffer as well. This
fact can be verified from statistics
collected through court cases and
police reports.
Ironically, the RSS lobby
on one side is too serious about
polygamy. Whereas, on the
other side, it is tight-lipped and
totally unconcerned about the
most dangerous phenomenon of
striking down of Section 497 IPC
by Supreme Court. The impugned
judgment carries deadly
consequences. In polygamy, at
least there is no risk of paternity
dispute; whereas, in 'adultery'
there's not only the risk of family
break-up but also the greater risk
of 'paternity dispute'. Who will
ever know, who is the daddy?
Will the RSS lobby and the prime
minister realise the risk of this
social pollution in the result of
impugned judicial order.
Senior Advocate
Mahalakshmi Pavani, President-
Supreme Court
Women Lawyers
Association said,
"One must not lose
sight of the fact that
the very purpose of
the Uniform
Civil Code (‘UCC’) is to
replace the existing laws that
apply to specific communities
with a consistent set of laws that
apply to all citizens.
Currently, the laws applicable
to different communities, such
as the Hindu Marriage Act,
Hindu Succession Act, Indian
Christian Marriages Act, Indian
Divorce Act, and Parsi Marriage
and Divorce Act, there lies an
incongruency which demands
harmonization. Laws such as
Sharia, which are founded in
religious scriptures, have not
been codified. Laws for the Jewish
community too are not codified.
And hence, the UCC seeks to
address these discrepancies
and provide a uniform legal
framework for all citizens."
"The present incongruency
in personal laws are often used
to deny women equal rights

LAWYERS UPDATE • AUGUST 2023 17

COVER STORY
and are employed for purposes
of exploiting women thereby
reinforcing parochial ideologies
and practices. For women coping
with marital, divorce, inheritance
and alimony disputes, vacuum
in the grounds of primacy of
personal laws is a gross violation
of Article 14. But codification
of personal laws will not end
discrimination if the personal law
is fundamentally discriminatory.
Even the Hindu codes still have
provisions that favor men over
women. A Uniform Civil Code
(UCC) would bring clarity,
cut through the messiness
necessitated by dealing with
abstruse theological matters, and
actualize Article 14’s promise of
equality."
Mahalakshmi further said,
"Article 44 of the Constitution
must be interpreted in
conjunction with article 14 of the
Constitution which guarantees
equality before the law and equal
protection of the law. Article
14 allows classification of the
people and traditions, cultures
and even religion in conjunction
with either or both could be the
basis of classification. This was
the essence of the decision given
by the Bombay High Court in
Narasu Appa Mali case (AIR
1952 Bom 84) which upheld the
Bombay Prevention of Bigamous
Marriages Act, 1946 on the
ground that the prohibition of
polygamy among Hindus was
not a different treatment to the
Hindus on the ground of religion
but was because of the different
traditions, history of social
reform and cultures."
Mahalakshmi pointed
out, "There are more than
200 indigenous tribes spread
across the states of Nagaland,
Manipur, Tripura etc. who have
varied forms of customary laws
governing marriage, divorce,
inheritance, adoption and
maintenance.
18
"Despite the large percentage
of population embracing
Christianity, Hinduism, and
Buddhism, native tribal religion
and customary practices are
still intact in many forms. In
all personal customary laws,
traditional dispute redressal
mechanisms at the village or
community level are still the core
of tribal society even today. From
a tribal woman’s perspective two
important issues are women’s
property rights and the practice
of polygamy.
Polygamy, a vice though,
has been an ancient custom in
many parts of the tribal world.
Even though both the wives
are given social recognition as
per customary norms, and her
offspring enjoys equal property
right from the father, Polygamy
is not welcomed by the women
folks, but they are bound to
accept it. There has been no
historical revolt by the women
against the practice but that may
be due to patriarchy and because
of the supreme position enjoyed
customarily by the first wife."
Polygamy needs to be socially
and legally discouraged and
the community must initiate
reformation in this regard.
Such reformation can begin by
codifying the customary laws and
the process should be allowed to
develop indigenously."
"Firstly, these uncodified set
of rich treasure of customary
norms cannot be treated at
par with the personal laws of
Hindu and the Muslims despite
some commonalities. The tribal
uncodified norms should be
comprehended from a different
standpoint and should be dealt
with accordingly.
Reformation is needed but it
should start with the codification
of these norms." "Regarding
property rights, an example can
be taken from Arunachal where
LAWYERS UPDATE • AUGUST 2023
women have no property rights
over immovable assets. The
eldest son plays a predominant
role next to the father in all
matters.
Although in case of a deserted
and helpless daughter, the
paternal family socially supports
the daughter and provides for
maintenance to resettle her.
The woman only remains in the
forefront of social structures and
have a decisive role in family
matters."
"The only material right
which a woman possesses is the
bride price. The bride price is
given by the groom’s family in
different kinds and forms, and on
top of this the initiative and the
responsibility of marriage falls
on the groom’s side."
"In fact, in the Khasi culture
the girls house becomes the
matrimonial home where the boy
has to join after marriage, which
is not a custom amongst other
tribes."
"In 2016 the Mizoram
legislature made a codified
tribal law; the he Mizo Hnam
Dan, which was a progressive
move as it gives the father the
right to make a will and confer
woman the right to inherit family
property which earlier, they
didn’t have. Thus, codification
here can be seen as progress to
unify the tribes and their varied
norms and at the same time
bringing in social reformation
and so preparing them to
eventually come under a UCC."
"Divorce is permitted but not
commonly practiced among the
tribes, the grounds of divorce are
also not strictly defined but some
recognized grounds may be
infidelity, barrenness and cruelty.
The custody and maintenance
issues are decided by the village
councils of elders on a case- to-
case basis, in many instances
the woman is made to return all
 COVER STORY

valuable property given to her by
the family. It can thus be inferred
that this puts tribal women in a
very precarious condition as the
redressal mechanism operates on
a very patriarchal set up."
Wajahat Habibullah, IAS
(Retd.), former
Chief Information
Commissioner,
feels,"There is no
draft as yet, so any
opinion on this
question can only
be hypothetical in nature. This
is only a Directive Principle.
It is therefore quite clear as a
principle, Parliament will have to
define purpose and applicability."
Habibullah further
said,"The vague nature of this
announcement would seem to
indicate a political purpose,
although how it is expected
to benefit any party remains a
guess."
Rajan Bhagat, IPS (Retd.),
former DCP
(Crime) of Delhi
Police said, "The
Indian Constitution
provides for the
possibility of a
Uniform Civil Code
(UCC) in Article 44. However,
the implementation of the UCC
has been left to the discretion of
the government and has not been
enforced so far."
"The argument of the
present Indian government is
for a common set of laws for
all citizens irrespective of their
religious beliefs to promote
equality and gender as personal
laws based on religious practices
can sometimes be discriminatory,
particularly against women,
and that a uniform code would
ensure a more equitable and just
society."
"One of the main arguments
against a UCC is that it could
potentially infringe upon the
fundamental rights of religious
freedom guaranteed under
the Indian Constitution. The
Constitution of India ensures the
right to freedom of religion and
guarantees every individual the
freedom to profess, practice, and
propagate their religion. It also
protects the right of religious
denominations or communities
to manage their own religious
affairs, establish and maintain
institutions for religious and
charitable purposes, and
conserve their distinct religious
and cultural heritage."
Article 25 of the Indian
Constitution grants individuals
the freedom to profess, practice,
and propagate any religion of
their choice. It ensures that every
person has the right to follow
and practice their own religious
beliefs without interference
from the State. The Constitution
of India declares India to be a
secular country in its preamble.
Secularism, as enshrined in the
Constitution, means that the State
treats all religions impartially and
does not promote any religion.
It upholds the principle of
religious neutrality and respects
the diverse religious beliefs and
practices of its citizens.
"Article 26 guarantees
the freedom of religious
denominations to manage their
religious affairs, establish and
maintain religious institutions,
and administer them according
to their own laws and customs.
This provision safeguards the
autonomy and independence of
religious institutions, enabling
them to preserve their distinct
identities and to carry out their
religious activities. Articles 29
and 30 of the Constitution protect
the cultural and educational
rights of religious and linguistic
minorities."
"Those who oppose its
implementation on the grounds
of protecting religious freedom
and diversity argue on the
grounds of: i)Protecting minority
rights: Critics argue that a UCC
might disproportionately impact
minority communities that
have specific religious practices
and customs. They claim that
imposing a uniform set of laws
could lead to the marginalization
and infringement of minority
rights, undermining their
ability to freely exercise
their religious practices
and manage their religious
institutions. ii) Interference
with religious autonomy:
Religious communities have
historically been granted
autonomy in managing their
own affairs, including personal
laws. Opponents argue that
implementing a UCC would
infringe upon this autonomy and
interfere with the religious rights
of individuals and communities.
They believe that personal
laws should be governed by
religious authorities rather than a
uniform code imposed by the State.
iii) Potential for discrimination:
Critics contend that a UCC
might not adequately address
the concerns and interests of
different religious communities.
They argue that a uniform code
might be biased towards the
dominant religion or majority
community, potentially leading
to discrimination against
religious minorities."
"They believe that personal
laws based on religious practices
are better equipped to address
the specific needs and concerns of
each community. iv) Disruption
of social cohesion: Some argue
that implementing a UCC could
create social unrest and conflict
by challenging deeply entrenched
religious practices and beliefs.
They contend that personal
laws, despite their shortcomings,
have historically provided a

LAWYERS UPDATE • AUGUST 2023 19

COVER STORY
sense of community identity
and cohesion. Disrupting these
laws through the imposition of
a uniform code could lead to
societal divisions and tensions."
"The debate surrounding a
Uniform Civil Code needs to
strike a balance between the
principles of religious freedom
and the promotion of gender
equality and justice. Any potential
implementation of a UCC would
require careful consideration
of these competing interests
and a comprehensive dialogue
involving all stakeholders to
ensure that fundamental rights
are protected while addressing
the concerns of different religious
communities."
"How can anyone forget
the loss of lives and properties
in violent incidents based on
religion, caste, and ethnicity i.e.
A) Partition of India (1947): The
partition of India and the creation
of Pakistan led to widespread
violence, communal riots, and
mass migrations, resulting
in the deaths of hundreds of
thousands of people, primarily
along religious lines. B) Anti-
Sikh riots (1984): Following the
assassination of Prime Minister
Indira Gandhi by her Sikh
bodyguards, riots broke out
in several cities across India,
particularly in Delhi, targeting
the Sikh community. Official
figures state that around 3,000
Sikhs were killed, although
unofficial estimates suggest the
numbers were much higher."
"C) Babri Masjid demolition
(1992): The demolition of the
Babri Masjid, a 16th-century
mosque in Ayodhya, Uttar
Pradesh, by Hindu nationalist
groups led to widespread
communal violence across the
country, resulting in the deaths of
thousands of people. D) Gujarat
riots (2002): Inter-religious
violence erupted in the State of
Gujarat after a train fire incident
20
in Godhra, which killed Hindu
pilgrims. The riots resulted
in widespread violence, with
predominantly Muslim areas
being targeted. Official figures
state that over 1,000 people were
killed, with a significant majority
being Muslims."
"E) Muzaffarnagar riots
(2013): Communal clashes
erupted in Muzaffarnagar
district of Uttar Pradesh between
Hindu and Muslim communities,
resulting in several deaths and
displacements. F) Attacks on
Christians in Odisha (2007-2008):
In Kandhamal district of Odisha,
there were instances of violence
against Christians, including
attacks on churches and Christian
institutions. The violence
resulted in several deaths and
widespread displacement."
"There are so many other
important and burning issues
having higher priority than UCC
and cast-based census ranked
much higher for arriving at
any conclusion to harmonise
laws like UCC. Any argument
of comparison of the situation
arising after the promulgation
of “Triple Talak” will be a
delusion for the over-enthusiast
political parties favouring the
implementation of UCC. How
can they forget the imposition of
the Mandal Commission which
forced them into Kamandal
politics and similarly imposition
of Kisan and Jawan laws
without taking stakeholders into
confidence?"
Advocate Tualia Rehman
said, "PM Narendra
Modi's recent
statement on
the UCC, is a
divisive issue to
which minority
communities have
repeatedly expressed concerns.
It comes at a time when the
nation's political calendar for the
upcoming year is jam-packed
LAWYERS UPDATE • AUGUST 2023
with Assembly polls in five States
and the 2024 General Elections.
"AICC general secretary K.C.
Venugopal asserted that Modi
rarely addresses incidents like
the violence in Manipur and
urged him to address concerns
regarding poverty, inflation, and
unemployment before focusing
on other matters in the country.
He never addressed on the
Manipur issue where the entire
State is on fire. Manipur has
been in flames for months. He
did not mention it or make any
peace requests. He merely aims
to divert attention from these
problematic issues."
Leader of the All India Majlis e
Ittehadul Muslimeen Asaduddin
Owaisi claimed that when Modi
addresses the UCC he is only
talking of implementing a Hindu
Civil Code, stripping all Islamic
allusions. “I ask him whether
he can abolish the Hindu
United Family tax exemptions,
or the Special Marriage Act, or
even remove Article 371 which
accords special status for 11
States, including six States of the
north-east. Can he speak of UCC
in Punjab, to the Sikhs,” he asked.
"Any propsal for UCC would
require careful consideration,
consultation with various
stakeholders, and might
even necessitate amending or
repealing existing personal
laws as opponents voice fears
that implementing a UCC
might infringe upon religious
freedoms and cultural rights.
India is a diverse country with
multiple religions, each with
its own distinct personal laws
and practices. Hence, It's critical
to strike a balance between
appreciating religious diversity
and ensuring equality and justice
for all citizens."
"Critics argue that a uniform
code may disregard the diversity
of customs and traditions
and might lead to cultural
homogenization."
LAWYERS UPDATE • AUGUST 2023 21
CASE STUDY

VICARIOUS LIABILITY OF HOSPITALS

FIRST APPEAL NO. 175 OF 2012 Dr. Manpreet Kaur Versus MRS.
SUMAN & 5 ORS.
FIRST APPEAL NO. 463 OF 2012 DR. NAVDEEP KAUR,
GOVERNMENT MULTI - SPECIALITY HOSPITAL
Versus SUMAN & 8 ORS.
FIRST APPEAL NO. 751 OF 2012 KIRTI SOOD
Versus SUMAN & 7 ORS.
Decided by the Hon'ble NCDRC on 23 May 2023ORDER
A. FACTUAL MATRIX: In Administration and provides free
December 2010, Mrs. Suman- services to all individuals. The
(Complainant No.1-patient) Opposite Party also claimed that
a full-term was admitted the Complainant had a history
Government Multi-Speciality of previous still births and was
Hospital (OP-1, for short anaemic at the time of admission.
"GMSH") for her safe delivery. Additionally, it was stated that it
Due to anaemia she was required was uncertain if the wrong blood
blood transfusion. The treating transfusion caused the fetal
doctors Dr. Navdeep (OP-3) and death and that the Complainant
Dr. Manpreet (OP-4) instructed was referred to PGI, Chandigarh
patient's husband Mr. Des Raj for further treatment. The
(Complainant No.2) to arrange Opposite Party maintained that a
a unit of blood and handed over thorough inquiry was conducted
the blood samples for testing in and disciplinary action had been
the blood-bank. The blood-bank initiated against Opposite Parties
technician -Ms. Kirti Sood (OP- No.2, 3, and 4 for negligence. It
2) after testing issued one unit was denied that the Complainant
of B+ve blood and same was would remain bedridden for
transfused to the patient who life and require lifelong medical
was A+ve. The patient developed care. The OP-2—Ms. Kirti Sood
complications, her condition submitted that the complaint was
deteriorated. It was further not maintainable as the matter
alleged that immediately no in controversy required more
doctor was available to tackle the detailed evidence than what
emergency. Therefore, the foetus could be adduced in a summary
died and the patient (mother) procedure. It was also contended
also suffered kidney failure. that the inquiry report submitted
It was due to the negligence by the inquiry officer was illegal
of the doctors who wrongly because it relied on events
administered B+ve blood instead related to the co-admission and
of her blood group A+ve. Being hospitalization of two patients
aggrieved, the Complainant filed with the same name, whereas
a Complaint against the OPs there were actually three patients
before the State Commission. with the same name admitted at
The OPs filed their respective the same time. Opposite Party
replies and denied any negligence No.2 argued that the inquiry
or deficiency in service. The OP-1 officer had failed to discover
submitted that the Complainant the existence of the third patient
cannot be considered a and that this rendered the
'Consumer' under Section 2(i)(o) inquiry report baseless. It was
of the Consumer Protection Act, also submitted that the Blood
1986, as the hospital is owned Grouping Register and Blood
and managed by the Chandigarh Issue Register showed that
Anoop K. Kaushal, Advocate
anoopkaushal@gmail.com
Opposite Party No.2 had not
been negligent in performing
their duties. The remaining
averments were denied as being
wrong. The OP-3—Dr. Navdeep
submitted that she was an intern
undergoing practical training in
the hospital, which is a part of
the MBBS course, under direct
supervision of a Senior Medical
Officer. She stated that the
intern is not considered to be
providing any service under the
Consumer Protection Act, 1986,
and is entrusted with clinical
responsibility only under direct
supervision. OP-3 denied any
wrongdoing in relation to the
blood transfusion and stated that
the transfusion was started in a
Clean Labour Room without any
attendants. She also mentioned
that the Complainant had
experienced quick pregnancies
before, resulting in stillbirths due
to her debilitated condition, and
had exceeded her expected due
date by two days. She denied
that there was any failure of the
kidney of complainant No.1 due
to the wrong transfusion of blood
group and stated that the patient
was put on dialysis to combat any
possible damage. She also denied
that the death of the foetus
was due to the wrong blood
transfusion and explained that
immediate remedial measures
were taken when the mistake was
discovered. Dr. Navdeep stated
that the patient was managed
well and given free treatment
at PGI, and all other allegations
made in the complaint were

22 LAWYERS UPDATE • AUGUST 2023

 CASE STUDY

denied. She concluded by stating
that the answering party was not
deficient in rendering service
and requested the complaint
to be dismissed. The OP-4—
Dr. Manpreet submitted that,
she was a House Surgeon on
a contract basis appointed by
Opposite Party No.1-GMSH. She
claims that she was not present
in the labour room at the time
of the incident and was off-
duty at 8 pm on 16.12.2010. Dr.
Manpreet denies any knowledge
of wrong blood transfusion or
any deficiency in service. She
also claims that the enquiry
conducted by the SDM (South),
UT, Chandigarh was not fair
and proper as the principles of
natural justice were not followed.
Dr. Manpreet argues that
Complainant No.1 did not hire
her services for consideration
and thus, is not a consumer as
defined under Section 2(i)(o) of
the Consumer Protection Act,
1986. She further states that
all other allegations made in
the complaint are baseless and
unfounded.
B. ORDER UNDER
CHALLENGE: The State
Commission upon hearing
the parties, partly allowed the
Complaint and directed the
OPs jointly and severally to pay
the Complainant Rs. 4,00,000/-
towards compensation with
cost of Rs.50,000/-. The OP-1
was further directed to bear all
future treatment expenses for the
patient.
C.MATERIAL ON RECORD:
The inquiry report dated
03.01.2011 was submitted by
the Sub Divisional Magistrate,
South, UT Chandigarh which
concluded as below:
"The Inquiry Committee
implicates the following persons
in the Commission of this gross
medical negligent act:-
1) Mrs. Kirti Sood, Lab
Technician: She issued the blood
bag without cross-checking
for the requisite important
details of the patient and more
particularly the blood group and
later on concealing the facts and
tampering with the sample. The
possibility of destruction of the
sample and the blood requisition
form cannot be excluded by the
Inquiry Committee.
2) Dr. Navdeep, Intern: She
initiated the transfusion to the
patient without checking and re-
checking the requisite details of
the patient with the details given
on the blood bag and started the
transfusion on the presumption
that the blood bag lying beside
the patient is meant for the
patient only, violating all the
fundamental blood transfusion
protocols. Moreover, she failed to
inform her seniors regarding the
transfusion and showing gross
carelessness and insensitivity
failed to monitor the patient.
3) Dr. Manpreet, House
Surgeon: The role played by Dr.
Manpreet, the House Surgeon
is also not a small one. She
being wholly responsible for
the transfusion of the blood to
patients in the labour room,
failed to check for the required
details in the blood bag with that
of the patient's case sheet as soon
as the blood bag was brought
and kept on the table by the
nursing student. Without even
checking for the details on the
blood bag she simply passed on
responsibility of the transfusion
to her amateur/new junior
colleague. Moreover, she did not
follow up the patient and failed
to monitor the patient.”
D. OBSERVATIONS: The
question for consideration arises
that whether the death of foetus
and the renal impairment of
the patient were due to wrong
transfusion of blood group by
OP-2 to 4. It is an admitted
fact that the OP-1 GMSH in its
written statement fairly admitted
the negligence of OP-2 to 4,
same was affirmed by the SDM
in his inquiry report. One unit
of blood was requisitioned by
Dr. Amarjeet Kaur and the same
was advised to be transfused to
the patient. It an admitted fact
that the Lab technician, Ms. Kirti
Sood had supplied the blood
for transfusion from the Blood
Bank, and under supervision
of Dr. Navdeep, the blood was
transfused to the patient. In
my view, it was the duty of the
ward staff nurse to check the unit
of blood carefully for the name,
age, sex, registration number
and the blood group before the
start of transfusion. It appears
that the doctor and intern were
under supervision of seniors.
Therefore, their role was very
limited. The actual procedures
and transfusion was the duty
of nursing staff who should be
more vigilant. Thus, the hospital
was liable vicariously.
E. FINDINGS; From the
evidence and the medical record it
is evident that due to transfusion
reaction (wrong blood
transfusion) the patient suffered
acute renal failure and she was
transferred to PGI, Chandigarh
for further management. Even
in my view, the death of the
foetus was due to the transfusion
reaction. The patient was
treated in PGI, Chandigarh from
17.12.2010 to 21.01.2011 and she
was recovered from acute renal
failure. Thereafter, she was on
medication and follow up. She
was now no more on dialysis
and her kidneys are normal. It
is pertinent to note that the due
to the negligence of the OPs,
the couple (Complainants no.1
and 2) lost their foetus also.
They have suffered mental and
physical agony, who certainly
deserve adequate compensation.
The State Commission awarded
compensation of Rs.4,00,000/-
payable jointly and severally

LAWYERS UPDATE • AUGUST 2023 23

CASE STUDY
alongwith the cost of litigation
Rs.50,000/-.
However, in my view, the
State Commission erred that
the OP-2, 3 and 4 were working
in the OP-1 hospital. It was the
“Contract of Service”. Therefore,
the OP-1 is vicariously liable
for the negligence of its servants.
Thus, the entire compensation
ABETMENT OF AN OFFENCE
Kulwant Singh @ Kulbansh
Singh v. State of Bihar
JT 2007 (9) SC 250: 2007 AIR
SCW 4124: 2007 (7) SCR 1178:
2007 (3) Crimes 177
Appeal (Crl.) 834 of 2007
Dated: June 21, 2007
BENCH: Justices Dr. Arijit
Pasayat and D.K. Jain.
Issue: Indian Penal Code
distinction between Section 109
and Section 114.
Where a person aids and
abets the perpetrator of a crime
at the very time the crime is
committed, he is a principal of
the second degree and section
109 applies. But mere failure
to prevent the commission of
an offence is not by itself an
abetment of that offence.
Considering the definition
in Section 109 strictly, the
instigation must have reference
to the thing that was done and
not to the thing that was likely
to have been done by the
person who is instigated. It is
only if this condition is fulfilled
that a person can be guilty of
abetment by instigation. Section
109 is attracted even if the
abettor is not present when the
offence abetted is committed
provided that he had instigated
24
as awarded by the State
Commission, shall be paid
by the OP-1. It is transpired
that the OP-1 hospital has
paid its share of compensation
to the Complainant (Order
dated 28.01.2019). However,
considering the principle of
vicarious liability in “Contract
of Service”, the Order of the
the commission of the offence or
has engaged with one or more
other persons in a conspiracy to
commit an offence and pursuant
to the conspiracy some act or
illegal omission takes place or
has been intentionally induced
the commission of an offence by
an act or illegal omission. In the
absence of direct involvement,
conviction for abetment is not
sustainable. (See Joseph Kurian v.
State of Kerala, AlR 1994 SC 34).
Section 109 provides that
if the act abetted is committed
in consequence of abetment
and there is no provision for the
punishment of such abetment
then the offender is to be
punished with the punishment
provided for the original offence.
Section 109 applies even where
the abettor is not present.
Active abetment at the time
of committing the offence is
covered by Section 109.
Act abetted in Section 109
means the specific offence abetted.
Mere help in the preparation
for the commission of an of-
lence which is not ultimately
committed is not abetment
within the meaning of Section
109. 'i'l.ny offence" in section 109
means offence punishable under
LAWYERS UPDATE • AUGUST 2023
State Commission is modified
as below:
The OP-1 is directed to
pay the balance amount of
Rs.3,00,000/- within six weeks
from today; failing which, the
amount shall carry interest @ 9%
p.a. till its realisation. All the
three First Appeals are disposed
of with the modification.
the I.P.C. or any Special or Local
law. The abetment of an offence
under the Special or Local law,
therefore, is punishable under
Section 109. I.P.C. for constituting
offence of abetment, intentional
and active participation by the
abettor is necessary.
There is a distinction
between Section 109 and Section.
Section 114 applies where a
criminal first abets an offence to
be committed by another person,
and is subsequently present at
its commission. Active abetment
at the time of committing the
offence is covered by Section 109
and Section 114 is clearly intended
for an abetment previous to the
actual commission of the crime
that is before the first steps
have been taken to commit it.
Section 114 is not applicable in
every case in which the abettor
is present at the commission
of the offence abetted. While
Section 109 is a section dealing
generally with abetment, Section
114 applies to those cases
only in which not only is the
abettor present at the time of the
commission of the offence but
abetment has been committed
prior to and independently of
his presence.
LAWYERS UPDATE • AUGUST 2023 25
 ARTICLE
SUMMARY OF ANAMOLIES IN FAMILY LAWS IN INDIA
A. ADOPTION LAWS:
1. Hindu Adoption & highly motivated to adopt a child for
Maintenance Act, 1956 (HAMA)
permit Hindus to give and take in
adoption. Sections 7 & 8 HAMA
permit male & female Hindus
respectively to adopt with the
consent of wife or husband, as
the case may be. If the adoption is
of a son/daughter, parties cannot
do so if they have an adopted
or natural born legitimate blood
relationship son/daughter (as the
case may be).
2. The Juvenile Justice (Care
& Protection of Children) Act,
2011 was amended in 2015 (JJA),
after the Government of India
acceded on 11.12.1992 to the UN
Convention on the Rights of the
Child (UNCRC), adopted by the
General Assembly of the UN
prescribing a set of standards to
be adhered by all State Parties in
securing “the best interest of the
child”
3. In Chapter VIII relating to
Adoption, JJA 2015, in Section
56 to 73 prescribes statutory
provisions relating to in-country
and intra-country adoptions.
Besides, detailed Adoption
Regulations, 2022, enacted under
Section 2 (c) and Section 68 (c) of
the JJA 2015 stipulate the detailed
procedure of in-country/intra-
country adoptions conducted
through Central Adoption
Resource Authority (CARA) as
the Indian Central Authority
under the Hague Convention
on Protection of Children and
Co-Operation in Respect of
Intercountry Adoption, 1993,
acceded to by India on 06.06.2003.
4. Section 2(49) of JJA 2015,
defines “prospective adoptive
parents means a person or persons
eligible to adopt a child as per
provisions of Section 57”
“57. Eligibility of prospective
adoptive parents-
(1) The prospective adoptive
parents shall be physically fit,
*Advocate author, an alumni of SOAS, London, is an IAFL Fellow and has co-authored nine books. Professional
representations PAN India, he can be reached at www.anilmalhotra.co.in and www.anilmalhotra.co.in/blog
26
financially sound, mentally alert and
providing a good upbringing to him.
(2) In case of a couple, the consent
of both the spouses for the adoption
shall be required.
(3) A single or a divorced person
can also adopt, subject to fulfilment
of the criteria and in accordance
with the provisions of adoption
regulations framed by the Authority.
(4) A single male is not eligible to
adopt a girl child.
(5) Any other criteria that may be
specified in the adoption regulations
framed by the Authority”.
5. Regulation 5 of Adoption
Regulations, 2022 (AR) prescribes
as follows:
“5. Eligibility criteria for
prospective adoptive parents – (1)
The prospective adoptive parents
shall be physically, mentally and
emotionally stable, financially
capable and shall not have any life
threatening medical condition.
(2) Any prospective adoptive
parents, irrespective of his marital
status and whether or not he has
biological son or daughter, can adopt
a child subject to following namely:-
(a) the consent of both the spouses
for the adoption shall be required, in
case of a married couple;
(b) a single female can adopt a
child of any gender;
(c) a single male shall not be
eligible to adopt a girl child;
(3) No child shall be given in
adoption to a couple unless they have
at least two years of stable marital
relationship.
(4) to (8) xxxx xxxx xxxx xxxx
xxxx xxxx”
B. MARRIAGE LAWS:
1. Hindu Marriage Act,
1955 (HMA) has a fourth
essential condition in Section 7
HMA i.e. rites and ceremonies
(Saptpadi) by bridegroom &
bride, conventionally meaning a
woman & man. Section 5 HMA
has 3 mandatory conditions of
marriage, violation of which
makes a marriage void under
LAWYERS UPDATE • AUGUST 2023
Anil Malhotra*
Section 11 HMA. However,
Section 29 HMA permits
solemnisation of marriage
between same Gotra or Parwara,
as also rights recognised
by “custom” or any special
enactment to obtain divorce
without any curtailment of rights
by the HMA.
2. Section 4 of Special
Marriage Act, 1954 (SMA)
has four conditions making a
marriage void “between any two
persons” under Section 24 SMA.
One such condition Section 4(c)
requires male to be of 21 years
and female to be of 18 years. In
essence, SMA entails a marriage
between man & woman.
3. Section 4 of Foreign
Marriage Act, 1969 (FMA)
prescribes age of bridegroom to
be 21 years and of bride to be
18 years for marriage of parties,
one of whom is an Indian citizen,
for a marriage between man &
woman.
4. Section 60 of Indian
Christian Marriage Act, 1872
(ICMA) prescribes Indian
Christians to be 21 years of age
for men and 18 years for women.
ICMA too contemplates marriage
between a man & woman.
5. Section 3 Parsi Marriage
& Divorce Act, 1936 (PMDA)
stipulates a Parsi male to be of
21 years and a Parsi female to be
of 18 years for a valid marriage.
PMDA also talks of marriage
between a male and a female.

6. The Protection of Women
from Domestic Violence
Act, 2005 (PWDVA) confers
statutory rights, reliefs & grant
of orders under Sections 17 to
23 PWDVA, to an “aggrieved
person” i.e. “any woman” in a
“domestic relationship”. Section
26 PWDVA permits these reliefs
without limiting rights in legal
proceedings before a Civil/
Criminal/Family Court.
Section 2(f) PWDVA defines
“domestic relationship” between
“two persons” who live/have lived
in a “shared household”, “when
they are related by consanguinity,
marriage or through a relationship in
the nature of marriage, adoption or
our family members living together
as a joint family.”
Section 2 (q) PWDVA defines
a “respondent” as an adult male
person who is/has been in a
“domestic relationship” with the
aggrieved person. Proviso to
Section 2 (q) stipulates 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.”
INCONSISTENCY IN
INDIAN LAWS:
All codified, personal and
statutory laws contemplate their
protection on “marriage” between
man & woman. PWDVA relaxes
protection to live-in relationships
outside marriage. Adoption of
children is permitted to PAP,
irrespective of marital status,
gender or sexual orientation.
Article 14 of Constitution grants
equality to all “persons”. If
gay/lesbian couples can adopt
under JJA, why can’t they
marry under SMA, both being
secular laws. Equality Article
14 & Right to Life Article 21
are constitutional protections
which must be afforded to
same sex unions/marriages in
parity with provisions of JJA. If
without marriage PWDVA can
be invoked, why the converse i.e.
Right to Marry be invoked by 2
unmarried persons, irrespective
of gender or orientation.
LAWYERS UPDATE • AUGUST 2023
DISCRIMINATION & a single male. However, gender
ANAMOLY IN INDIAN LAWS:
While HAMA as a personal
law permits adoption of children
to male & female parents, JJA
as a secular law available to
all persons (including foreign
nationals) permits adoption to
person(s) irrespective of marital
status. Adoptive parents means
a person or persons as per
provisions of Section 57 JJA.
Both under JJA & AR,
“prospective adoptive parents”
(PAP) have not been described
as “man & woman”. Section 2(49)
JJA defines PAP as “person”
or “persons”. Section 57 JJA
requires PAP to be physically fit,
financially sound, mentally alert
and highly motivated to adopt
a child for good upbringing.
Section 57 PAP does not require
PAP to be a man or woman or a
married couple.
Hence, as long as the PAP
are physically fit, financially
sound, mentally alert and highly
motivated to adopt a child for
good upbringing, it does not
matter if they are a married
couple 2 men, 2 women, 1 man
or 1 woman. Furthermore,
under Regulation 5, any PAP,
irrespective of his marital status,
and whether or not he has a
biological son or daughter can
adopt a child. Neither sex, marital
status or sexual orientation
is a condition or mandatory
stipulation for adoption
This thinking emerges since
as long as a PAP is a person(s)
who is physically fit, financially
sound, mentally alert and
highly motivated to adopt a
child for good upbringing, he/
she/they (gender neutral) can
adopt irrespective of nationality,
religion, caste, race, sex or
orientation, as long as it ensures
the welfare & best interest of
child. Under JJA, there is no bar
for unmarried couples, single/
widower/divorced persons or
persons with different sexual
orientation to adopt children,
with the only exception that a
girl child cannot be adopted by
ARTICLE
neutral parents or children
have no bar of adoption as
transgenders i.e. third sex is not
barred from adoption under JJA.
Hon’ble Chief Justice of
India Dr. DY Chandrachud (as
an Hon’ble Judge in Bombay
High Court) rendered a very
enlightening, far reaching,
progressive harmonious decision
dated 16.09.2022, interpreting
HAMA & JJA, and Article 21, to
mean adoption as a facet of right
to life, permitted a second girl
child to be adopted by a couple,
not possible under HAMA,
but permissible under JJA and
GWA (An extract of the decision
in Global Indians & The Law
(Oakbridge-2020), at pages 19.24
to 19.28 is enclosed with this note
for your kind perusal.
QUESTION POSED TO
MYSELF:
If PWDVA grants protection,
by conferring statutory rights,
reliefs and orders envisaged
under Sections 17 to 23 PWDVA,
dehors Civil/Criminal/Family
Court proceedings, to “relationship
in the nature of marriage” and JJA
permits adoption of children, by
PAP irrespective of marital status,
these statutory rights emanate
from laws made by Parliament.
Supreme Court of India as a
harbinger of Constitutional
Rights must ensure protection of
Fundamental Right under Article
14, wherein “State shall not deny
to any person equality before law
or equal protection of laws within
the territory of India”. Likewise,
Right to Life under Article 21
guarantees a fundamental right
of constitutional protection to
same sex unions, in furtherance
of equality of law to all persons
under Article 14. Core question
is, if irrespective of marital status,
gender or sexual orientation,
PAP can adopt in India under
JJA, why cannot two persons be
granted constitutional protection
of Right to Marry under Articles
14 & 21. Rights of Equality & Life
of Persons must be uniform for
marriages & adoption
27
LAW BOOK PUBLISHING IN INDIA
Online Retail selling
Online retail has become an
important growth driver for the
publishing industry. Amazon,
Flipkart and some other big giants
are the best Online market place
for books. The Online platform of
retail selling of books is growing
faster than offline channels
and are gaining larger market
shares. However, the increasing
market dominance of online
retailers in India puts pressure
on publishers’ and distributors’
margins, specifically in the
*B.Com, LL.B., President, The Federation of Publishers’ and Booksellers’ Associations in India,
Partner, Universal Book Traders, Law & Justice Publishing Co. Delhi
digital segments which makes
it difficult for them to sustain
offline. The declining sales of
books at retail counters have
been witnessed among major
retailers and distributors in India.
It has increased the challenges
concerning intellectual property,
piracy and the copyright
Pradeep Arora*
ecosystem.
There is a strong need for so, data analysis has become
publishers to focus on enabling a necessary means for legal
access to diverse, affordable publishers to deal with the new
and quality books for students digital era and the publishing
and practitioners on Law. More industry needs to learn this lesson
if it wants to survive.

• Two prisoners are talking about

their crimes:
George: "I robbed a bank, and
they gave me 20 years."
Herman: "Hmm. I killed a man,
and I'm here for 3 days."
George: "WHAT? I rob a bank
and get 20 years; you kill a man
and get 3 days?”
Herman: “Yeah, it was a lawyer.”
• What do you call a smiling,
courteous person at a bar
association convention?
The caterer.
The secret of a successful lawyer is that he makes use of all his spare time.
-Cutler

28 LAWYERS UPDATE • AUGUST 2023

LAWYERS UPDATE • AUGUST 2023 29
 SUPREME COURT
DIRECTS GOVERNMENT
Non-functioning of the Labour Tribunals is detrimental to all stakeholders
The Supreme Court in its
order observed, “It is mentioned
in the Writ Petition which is
instituted by the Labour Law
Association that as many as 9
(now it is 11 since the Presiding
Officer in Kanpur has resigned
whereas one at Delhi has retired
on 5.7.2023) out of 22 Benches
in the Central Government
Industrial Tribunal are vacant
and 3 more will fall vacant in
2023. Such officers are vested
with the powers of Appellate
Tribunals under Employees’
Provident Funds and MP Act.”
The role played by the
President of the Labour Law
Association Rajiv Agrawal and
Senior Advocate Anil Kumar
Sangal in getting the intervention
is laudable, to say the least.
Labour Law Reporter and its
Editor-in-Chief have also been
raising this issue from time to
time. When this matter came
up for hearing the Chief Justice
of India DY Chandrachud was
aghast with the state of affairs
and he said that “I have a feeling
that before the summer vacation
in the Court, I have nominated
a Judge of the Supreme Court to
chair the selection panel for the
CGIT.”
Labour cases are given
‘Cinderella treatment’ in India.
It is clear from the fact that
there are thousands of labour-
related cases pending across
the country for years together,
but the government seems
oblivious to it. The difference
between Courts and Tribunals is
that in civil matters courts issue
rulings, decrees, and orders and
in criminal cases, they render
verdict of acquittal or conviction.
The Tribunals, on the other hand,
are set up to provide rewards to
the parties in question.
The matter of vacancies
30
in the Tribunals assumed so
much significance that the
Supreme Court of India had to
interfere to fill up the vacancies
in the Industrial Tribunals.
A Public Interest Litigation
was filed in the Apex Court
seeking direction to the Union
of India to expeditiously fill
up the vacancies in the Central
Government Industrial Tribunals
(CGIT) cum Labour Courts.
There are 22 Industrial Tribunals
in the country out of which 11
are vacant. The number was 9
when the PIL was filed but in the
meantime, two more CGITs have
fallen vacant. Thus, presently
only 50 % CGITs are functional.
The Supreme Court in its
order observed, “It is mentioned
in the Writ Petition which is
instituted by the Labour Law
Association that as many as 9
out of 22 Benches in the Central
Government Industrial Tribunal
are vacant and 3 more will fall
vacant in 2023.” The role played
by the President of the Labour
Law Association Rajiv Agrawal
and Senior Advocate Anil Kumar
Sangal in getting the intervention
is laudable. Labour Law Reporter
and its Editor-in-Chief have also
been raising this issue from time
to time. When this matter came
up for hearing the Chief Justice
of India DY Chandrachud was
aghast with the state of affairs
and he said that “I have a feeling
that before the summer vacation
in the Court, I have nominated
a Judge of the Supreme Court to
chair the selection panel for the
CGIT.” The Court has directed
the Union Government to notify
the filling of vacancies by 31st of
August 2023.
As a result of the non-
functioning of 50 % CGITs,
thousands of cases of labour/
workmen have been pending
LAWYERS UPDATE • AUGUST 2023
to fill
INDUSTRIAL
TRIBUNAL
VACANCIES
H. L. Kumar
Advocate, Chief Editor,
Labour Law Reporter
The appropriate government
has been empowered by s
7A Industrial Disputes Act
1947 to constitute one or more
industrial tribunals. The Central
Government can appoint
tribunals in any state for the
adjudication of the ‘industrial
disputes’ in relation to which it
is the ‘appropriate government’.
A state government may
constitute one or more industrial
tribunals in its territory, for
adjudicating the matters in
respect to which it is the
appropriate government. The
appointment of the industrial
tribunals has to be made by
the appropriate government by
means of a notification in its
Official Gazette. The moment
a notification under this sub-
section is issued in the Official
Gazette, the establishment
of the industrial tribunal is
complete and permanent. The
appointment of the presiding
officer of the tribunal, though
essential, is a separate matter.
However, the appropriate
government can constitute a
tribunal and make an
appointment of the presiding
officer thereof simultaneously
by a composite notification or
by different notifications.
Even though the disposal of the
labour cases has been very slow

since the presiding officer were
retiring and the vacancies were
not filled up but despite that
the Tribunals have been vested
to dispose of appeals under
section 7-I under EPF&MP
Act 1952 which has further
added the work load of the
Central Government Industrial
Tribunals.
adjudication across India
which is affecting not only
the poor labour & workmen
but even the institutions and
their management and also the
lawyers practising in the CGITs.
Ahmedabad CGIT was vacant
since January 2015 and the
appointment was made only in
August 2022; Mumbai-II CGIT
was vacant since April 2015 and
the appointment was made only
in October 2022; Bhubaneswar
CGIT was vacant since February
2015 and the appointment was
made only in October 2022,
which is again going to be
vacant; Hyderabad CGIT was
vacant since February 2015 and
the appointment was made only
in August 2022.
Code on Industrial Relations,
2020 envisages that ‘on and from
the date of commencement of
this Code, the cases pending
immediately before such
commencement (a) in the
Labour Court and the Tribunal
constituted under the Industrial
Disputes Act, 1947, shall be
transferred to the Tribunal having
corresponding jurisdiction under
this Code, (b) in the National
Tribunal constituted under the
Industrial Disputes Act, 1947 shall
be transferred to the National
Industrial Tribunal having
corresponding jurisdiction under
this Code’.
A presiding officer of a Labour
Court or Tribunal or, as the
case may be, National Tribunal,
constituted under the Industrial
Disputes Act, 1947, holding office
as such immediately before the
commencement of this Code and
is qualified to be appointed under
this Code, shall be the Judicial
Member of the Tribunal or, as the
case may be, the Judicial Member
of the National Industrial
Tribunal, and shall continue as
such for the remaining period
of his office. The Labour Court
have been disposing of labour
cases very fastly and have been
appointed by High Courts. It is
apprehended that if there will be
such delay in appointing of not
one but two members, there will
be further delay in disposal of
labour cases.
The Search-cum-Selection
Committee will be chaired by
a Judge of the Supreme Court
nominated by the Chief Justice
of India. In the submissions of
the Additional Solicitor General,
it is anticipated that the process
would be completed within a
period of four weeks.
It must be mentioned that
while the Industrial Tribunal
deals with individual disputes
arising from the employer-
employee relationship (such as
dismissal) and trade disputes
between trade unions employees
(such as transfers, collective
agreement) and breaches of
rights and obligations are
imposed under the Industrial
STEP-MOTHERLY
TREATMENT TO LABOUR
LITIGATION
As a result of the non-
functioning of 50 % CGITs,
thousands of cases of labour/
workmen have been pending
adjudication across India
which is affecting not only
the poor labour & workmen
but even the institutions and
their management and also
the lawyers practising in the
CGITs. As a result of it, all the
stakeholders have been left in
the lurch. Apart from deciding
the cases related to Employment
Law, they have also been
burdened with the cases of
Provident Funds.
Relations Act of 1967. Again, the
third schedule of the Industrial
Disputes Act, 1947 deals with
disputes pertaining to wages and
mode of payment, compensatory
and other allowances, hours of
work and rest intervals, leave
with wages and holidays, bonus,
profit sharing, and provident
fund etc.
Central Government
Industrial Tribunalcum-Labour
Courts (CGIT-cum-LCs) are set
up under the provisions of the
Industrial Disputes Act, 1947
for adjudication of industrial
disputes arising in the Central
Sphere. These CGIT-cum-LCs
are headed by Presiding Officers
who are selected from amongst
High Court Judges (serving/
retired) or Distt. /Addl. Distt.
Judges (serving/retired).
The CGIT-cum-LCs have
been set up with the objective of
maintaining peace and harmony
in the industrial sector by quick
and timely disposal of industrial
disputes through adjudication
so that industrial growth does
not suffer on account of any
widespread industrial unrest.
Moreover, due to increasing
awareness about their rights and
Labour laws among the workers,
there is a gradual increase in
the number of cases being filed
under the I.D.Act before the
CGIT-cum-LCs. Restructuring
of the workforce on account
of the application of the latest
technology in the industries has
also resulted in retrenchment,
declaration of surplus etc. which
has further led to an increase in
workers’ grievances.
Now when the labour codes
are ready, nobody knows when
they will be notified. Tribunals
are not courts in the strict sense
of the courts, but they have
all the trappings of the courts.
Statements are asked of the
parties who are then given an
opportunity to support their
cases by oral hearings.
Email : info@labourlawreporter.com

LAWYERS UPDATE • AUGUST 2023 31

“It is an attempt to relieve the mind, heart and body of not only the Lawyers who are under huge work pressure but
also of all our readers, who are facing the very common and ever increasing problem of stress.”
Your Body
We are suggesting some
selected Yog Asanas to rejuvenate
your body. Next in the series is:
Balasana
Benefits: Provides relaxation
of body and mind;
Spinal column becomes
stronger;
Helps to overcome fatigue;
Brings relief from back and
neck pain;
Entire back, hips, thighs and
knees get a good stretch and thus
get relaxed.
Procedure: Kneel down on
the floor. Knees and heels should
be together. Rest your posterior
on the heels. Spread your knees
apart. Bend your trunk forward
and bring the head down. Touch
the forehead on the floor. The
abdomen should be in between
the thighs. Extend your hands
back to reach the ankle. Place
your palms on the floor face
turned down. Stay in this
posture for about 30 seconds,
breathing normally. Raise your
body gradually straight up, as
you inhale. Exhale and return to
normal sitting position.
Caution: Expectant mothers
should never practice Balasana.
32
Healthy Food
Dragon Fruit
Dragon Fruit (Pitaya Fruit)
is among the most nutritious
and wonderful exotic fruits.
It features a mouth watering
light sweet taste, an intense
shape and colour, not forgetting
its outstanding flowers. In
addition to being tasty and
refreshing, this beautiful fruit
boasts of a lot of water and
other vital minerals with varied
nutritional ingredients. Due to
its vital nutrients, the Pitaya
fruit is suitable for all diets as it
supplements fibre which is best
for laxative and the liver. People
who have high blood pressure,
diabetes and obesity have
attested to the fruit’s goodness.
Recent findings show that if an
obese person eats a Pitahaya fruit
on a regular basis, it naturally
reduces the weight considerably,
creating a well balanced body
without compromising on the
individual’s health. Pitahaya
fruits are highly concentrated
with Vitamin C and minerals.
The protein component of the
Pitahaya fruit enhances the body’s
metabolism. Calcium reinforces
bones and aids in formation of
healthy teeth. Vitamin B2 acts
LAWYERS UPDATE • AUGUST 2023
as a multi-vitamin to recover
and improve loss of appetite.
Vitamin B1 assists in production
of energy as well as metabolizing
carbohydrates. Vitamin B3
lowers bad cholesterol level
and enhances the appearance
of the skin by moisturizing and
smoothening it.
Recipe of the Month
Dragon Fruit Jam
Ingredients:
½ dragon fruit flesh scooped
2 teaspoon sugar
1 teaspoon lemon juice
Method:
Cut the dragon fruit into two
halves and scoop out the flesh
using a spoon. Take scooped flesh
in a mixer/grinder and blend to a
pulp.
In a thick bottomed non-stick
pan, combine dragon fruit pulp
and sugar. Cook on a medium
flame and simmer until it has a
thick jam like consistency. Keep
on stirring occasionally. This will
take about 20-25 minutes.
Once you notice that it has
begun to thicken, add lemon
juice to it. Stir well and cook for
about a minute.
Remove from flame and allow
it to cool.
Store it in a sterilized jar in
refrigerator.
Happy Holidays
Kota
Kota is a part of the
southeastern region of Rajasthan,
known as Hadoti and is one
of the important industrial
centres of Rajasthan. Kota has
Asia's largest fertilizer plant,
precision instrument unit and
atomic power station nearby.
Chemicals, fertilizers, synthetic
fibres, tyrecord, sophisticated
instruments, have taken the city
in the mainstream. Withstanding
these material qualities, it
is mainly the beautiful and
picturesque locations that
form the basis of Kota Travel
and Tourism. Massive forts,
magnificent palaces, charming
waterways, along with the exotic
wildlife and delicate fresco
paintings surely capture the
heart of the tourists. Maharao
Madho Singh Museum is situated
in the old palace. The museum
has on display a rich collection
of Rajput miniature paintings
(Kota school), sculptures, murals,
arms, etc. Also exhibited are
some artistic items used by the
former rulers of Kota. Government
Museum exhibits an array of rare
coins, manuscripts, sections of
Hadoti sculpture, etc. The most
remarkable item on display is
a sculpted statue brought here
from Baroli. Kishore Sagar is
a scenic lake which houses a
palace, Jag Mandir in the centre.
Made up of red sandstone,
the palace looks a picture of
serenity standing in the middle
of the lake. Nearby is Keshar Bagh
housing some royal cenotaphs.
Chambal Garden situated near
the river Chambal serves as a
popular picnic spot. The garden
is nearby Amar Niwas Palace
and presents a picturesque sight.
One can even go for boating in
the Chambal River. Kota Barrage,
the irrigation canal system on
the Chambal River serves as an
ideal venue for excursions and
evening walks. Haveli of Devtaji,
in the heart of a busy market, is
adorned with impressive murals
and rooms beautifully decorated
with some amazing miniature
paintings. Kansua Temple is
famous for a rare four-faced
Shivlinga that it enshrines. Darrah
Wildlife Sanctuary is located about
50 Km from Kota. There are
spotted deer, Wild boars, Bears,
Sambhars, Leopards, Panthers
and Antelopes. Apart from these
some other places to see in Kota
are Mathuradheesh Temple, Yatayat
Park, Adhar Shila, Budh Singh Bafna
Haveli, Godavari Dham Mandir,
Bhitria Kund, Haryali Water Park,
etc. The most prominent festival
in Kota is the annual Dusshera
Mela. It is a 12-day celebration
held in October. With its rich
tradition in arts and crafts, Kota
has a special place in the heart
for every Indian woman as its
exclusive range of hand woven
sarees appeal greatly to them.
They are made of cotton and silk.
One can have an assortment of
these Kota Sarees at the Bazaars
in Kota Main Bazaar. One can
obtain miniature handicrafts
and hand woven checkered and
printed Kota saris. Small gift
items and souvenirs are also
available here. Colourful bangles,
earrings and other textiles with
embroidery works are the other
special attractions over here.

A D V E R T I S E M E N T TA R I F F
Back Cover Page (Coloured) ` 20,000 Half Page (Coloured – in between) ` 7,000
Inside Cover Page (Coloured) ` 12,000 Half Page (Black & White) ` 5,000
Full Page (Coloured – in between) ` 10,000 Quarter Page (Coloured – in between) ` 4,500
Full Page (Black & White) ` 8,000 Quarter Page (Black & White) ` 3,000
For any queries, mail us at: edit@lawyersupdate.co.in
or contact us at: Tel. No. 011-43704320

LAWYERS UPDATE • AUGUST 2023 33


The History of
Mary Prince
Mary Prince
1831
When it came out in London in 1831, Mary
Prince's heart-rending story of her life as an enslaved
Black woman in Britain's West Indian colonies was a
publishing sensation. The book was reprinted three
times that year alone. Never before had there been
such a graphic account of what it was like to be
enslaved, even though the book does not reveal the
full horror.
At the time, Britain was being torn apart by the
slavery debate, and the book provoked a backlash.
In a scathing article in Blackwood's Magazine, pro-
slavery activist James Macqueen denounced it as
biased and exaggerated. He also made insulting
references to the family of the book's editor, Thomas
Pringle, secretary of the Antislavery Society, in
whose household Mary had found refuge.
Pringle sued Blackwood's Magazine and won. At
the same time, however, he was sued for defamation
by Mary's former enslaver, John Wood of Antigua.
Unable to bring witnesses from Antigua, Pringle
lost.
Nonetheless, the book survived in print and,
like other slave narratives, helped mobilize public
opinion against slavery. In August 1833, six months
after Pringle's two legal cases came to court, the
British Parliament passed the Antislavery Act,
abolishing slavery in the British Empire. Sadly,
nobody knows what happened to Mary after that.
She disappears from the records.

You don’t need permission for street photography.

The plaintiff argued that this photo of him violated the Torah
Commandment against graven images.
Summary:
Upset about his portrayal in the photo above, a Hassidic
Jew sued the photographer for privacy and religious reasons.
Outcome:
The 1st Amendment allows photographers to display, publish,
and even sell street photography without the subject’s
permission. It’s always nice to ask, but freedom is part of the
appeal behind street photography. Until this case, it was a right
taken for granted.
Had the photographer lost, then many famous photographs
including “Subway Passenger, New York City,” might have
been removed from publication and sale.

34 LAWYERS UPDATE • AUGUST 2023

Be absolutely clear on the
mandate you seek.
The judges we've consulted
say that it's lamentably common
for lawyers not to know how
to fill in this blank: "The Court
therefore orders that _______
_________________________."
To supply what's missing, you
must think through exactly what
you're asking the court to do. Put
it in the prayer of your brief
Just as good lawyers begin
their pleadings by consulting
the pattern jury instructions so
that they'll know what ultimately
needs to be proved, they also begin
preparing for a motion or appeal
by crafting the order that will
follow. If they want a temporary
restraining order against a
disaffected former employee,
they don't just ask for an order
"restraining Hef Helfenbein from
disturbing company operations."
Instead, they fashion a highly
particularized order that's easier
to enforce and hence more likely
to be adopted: "Hef Helfenbein is
restrained from (1) coming within
200 feet of the Goodyear plant;
(2) telephoning any employee of
Goodyear while that employee
is on the job (3) e-mailing any
employee of Goodyear at a work
e-mail address; (4) contacting any
Goodyear supplier with whom
he formerly had contact or knew
about while he was a Good­
year employee; and (5) taking
any other action designed to
hamper or obstruct the company
s operations.
If you think things through
that thoroughly, you’ll figure
out a way to defend each of the
measures you’re requesting.

AN HONEST LAWYER
The man of law is "damned to fame" on the signboard under the style and title of
the" Honest Lawyer," The picture represents him with his head in his hand, that
being considered the only condition in which a lawyer by any possibility could be
honest; though in the case of a bad man of law, the proverb Moria la bestia, marta
il veleno does by no means apply.
Old jest-books tell us that Ben Jonson, passing once through a church in Surrey,
and seeing a number of poor people weep­ing round an open grave, asked one of
the women whose loss they deplored. "Oh!" said she,"we have lost our precious
lawyer, Justice Randall; he kept us all in peace, and always was so good as to keep
us from going to law: the best man ever lived." "Well, then," said Ben Jonson, "in
that case I will write you an epitaph to inscribe on his tomb," which was-
"God works wonders now and then;
Here lies a lawyer, an honest man."
When Sit John Strange, Master of the Rolls, died, a wit proposed for him the
epitaph-
"Here lies an honest lawyer that is Strange.

LAWYERS UPDATE • AUGUST 2023 35

36 LAWYERS UPDATE • AUGUST 2023
LAWYERS UPDATE • AUGUST 2023 37
 LEAVE OUT THE WACKY GIMMICKS
H.E.L.P.I.N.G.: A Personal
Statement of Purpose
Ever since I was born, my
parents have shared with me the
value of help­ing others. Charity,
volunteer work, and just plain,
old-fashioned lending a hand to
your neighbor were all looked
upon proudly in my family.
In fact, my parents both made
helping out into careers: my
mother is a third grade teacher
and my father is a minister
at the First Lutheran Church.
He taught me that Jesus was a
helper, and that I should be a
helper, too. Helping others is the
highest service that people can
do. Which leads me to a question
I have asked ever since I was old
enough to ask it: what does it
mean to help?
Well, I think I have the
answer to that question, and it
is right in the word: “helping”.
H.E.L.P.I.N.G can be easily
remembered as standing for:
Healing Every Living Person
in Incommensurable and New
Groups. Let me explain what
I mean by this. I mean that it is
only helping if we help everyone,
even people who may be strange
to us or seem unimportant. It is
not really helping if you only
help powerful people because
they can give you favors in
return, or if you only help
people who are your friends or
people who are just the same
as you. Jesus helped everyone
who was in need, and that is
how I want to be. That is why,
to me, “helping” means “help
every living person (meaning,
well, everyone, from your best
friend to a complete stranger,
the president or “the peanut
38
gallery”) in incommensurable
and new groups” (meaning
groups that are very different
from one another and might be
new to you. Social, religious,
national or racial groups, not just
the groups you are already in or
are familiar or comfortable with.)
Not everyone has the same
definition of helping. Some
people may think it is helping
to only help themselves, their
family, their church, their team,
their school or their town. But
when we only help ourselves, we
leave other people out in the cold.
This can make the world unfair.
For example, my high school's
soccer team, the Wolves, always
had brand new uniforms when
we needed them. We often played
against underprivileged schools,
one in particular, whose uniforms
were not always new, pristine or
in the most popular style of the
time. During my senior year of
high school, this other school had
a car wash to buy new uniforms,
and the coach of our team
suggested that we should go to
it. But most of the kids enrolled
at my school said, “Why should
we go help the other team if we
want to beat them?” It was a hot
day and a lot of kids wanted
to be in the air conditioning or
spend their money on movies
or pizza or other fun activities.
The other school did not raise
enough funds for new uniforms,
and when we played soccer
against them, people noticed
this. It made my school's team
look like rich snobs, even though
most of us were not and had our
own struggles. Furthermore,
we did not win the game. So
who were we really helping by
LAWYERS UPDATE • AUGUST 2023
not attending the car wash, and
sharing our own friendship and
good fortune? No one.
At first, I did not understand
this. I was just caught up in
childish rivalry and was angry
that we did not win. It was only
after talking to my father about
it that I realized I had been a
hypocrite. When you don't help
“the little guy” or other people
who are different from you, you
are not really helping at all. In
fact, you might really be doing
harm. You might be a snob,
or even preju­diced. This is an
example of why there is so much
injustice and unfairness in the
world.
In conclusion, after spending
my whole life thinking about
what it means to help, I am very
committed to spending the rest
of my life being a helper. And,
to me, being a helper in this day
and age means being a lawyer.
Even if they do not have a lot of
money or social prestige, even if
they are a part of a discriminated
group, everyone has to have a
lawyer if they need one. This
is one of the fairest parts of the
finest justice system on the planet
Earth. I hope dearly to become a
part of it.
JD MISSION REVIEW
Overall Lesson
Avoid writing an essay that
leaves your reader with the
impression that you cannot
handle the demands of law
school.
First Impression
First and foremost, this
candidate needs to lose the
heading. I am 100% sure this is
a bad idea. Do not use a heading
or a title. Ever. You are not the
excep­tion.
Consider also the very first
sentence, which is bad in a
relatively standard way: the
cliche renders the sentence
nonsensical. “Ever since I was
born, my parents have shared
with me the value of helping
others,” she writes. Really? Ever
since she was born, she has been
learning the value of helping
others? This probably sounds
nitpicky, but you should never
start your essay with a clearly
hyperbolic statement. If this
candidate feels she absolutely
must begin her personal state­
ment with such a declaration,
saying, “Ever since I was a child”
would help make the claim a bit
more believable.
Strengths
The theme of helping others
could work, and the story she
chooses to illustrate her theme
could potentially be effective
with some substantial revision,
but it needs to be told in the right
way
Weaknesses
The acronym, on the other
hand, does not work. It is too
gimmicky, and frank­ ly, it also
reads quite young-making
the candidate seem as though
she is of high school age or
even younger. This is part of
a law school application. The
candidate is trying to get into
a graduate program for which
she will be expected to read
and comprehend hundreds of
pages of dense text every week,
to be prepared to respond
spontaneously when cold-called
in class, and to sit for several
four-hour (or longer) exams each
semester. Is she cut out for such
a pro­gram? This essay not only
fails to convince me that she is,
it almost convinces me that she
is not.
The candidate also repeatedly
lapses into conversational
language that is far too informal
for this context. Phrases such as
“well ...” and “just plain, old­
fashioned lending a hand” may
be appropriate for an email
or text but not for a personal
statement essay.
Final Assessment
The candidate needs to
completely rewrite this essay, but
before she does, I would want to
have an honest conversation with
her about whether she is truly
prepared to handle the rigors
of law school. If the answer
is yes, she will have to start
from scratch on her personal
statement. If she opts to retain
the theme of “helping others,”
she will need to make her text
much more nuanced, incorporate
more sophisticated analysis,
and clearly apply the theme to
her past experiences and her
expectations for the future. She
can do this by changing the focus
of her essay to a later period
in life-college, at least, or after
college, if she has graduated-and
incorporating more sophisticated
analysis into her narrative of
what it means to “help.”

Indian Medical Association-New Delhi Branch organised National Doctors' Day Celebration & Historic
National Accolade Conclave, at India International Centre, New Delhi, on July 16, 2023. The theme of the
Conclave was to felicitate doctors for their outstanding services during Covid pandemic. Dr. H. K. Chopra,
renowned Cardiologist & Chief Advisor, IMA NDB, felicitated Hasan Khurshid, Associate Editor, Lawyers
Update, for his outstanding performance as Journalist & Author.

LAWYERS UPDATE • AUGUST 2023 39

 Quick Referencer for
Judicial Service
Q. ‘A’ dies intestate and
in debt to ‘B’. ‘C’ takes out
administration to A’s effects and
‘B’ buys part of the effects from
‘C’. In a suit for purchase money
by ‘C’ against ‘B’, the latter wants
to set off the debt. Answer with
reasons.
U.P. Judicial Service Main
Exam. 2006
Ans: ‘B’ cannot set off the
debt—Order 8, Rule 6 (Particulars
of set off to be given in written
statement
Reasons: Rule 6 of Order 8 of
Civil Procedure Code deals with
the provisions relating to set off
in a money suit.
“LIVE IN RELATIONSHIP”
NOT ILLEGAL WITHOUT
PARENTS' CONSENT
Isbmatara Sharafathussain
Shaikh
v.
State of Gujarat
2018 (1) Ker LJ 7
Decided on: 04-12-2017
Hon'ble Judges: Abhilasha
Kumari and B.N. Karia, JJ.,
High Court of Gujarat
Facts: Petition filed by 'other
40
It is notable that in addition
to all other conditions, one of
the essential conditions for the
application of principle of set off
is that both the parties to the suit
fill the same character as they
fill in the plaintiff’s suit. Thus,
if parties to the suit fill different
character, the defendant cannot
claim set off.
The facts of the given
problem have been taken
from Illustration (b) attached to
Rule 6 of Order 8 which reads as
follows—“’A’ dies interstate and
in debt to ‘B’. ‘C’ takes out the
administration to A’s effects and
‘B’ buys part of the effects from
of the corpus' with prayer to
issue directions to respondents
to produce her daughter before
court, alleging that her daughter
was illegally abducted and
confined by respondent with aid
of his brother and father, and so
petitioner was threatened to pay
ransom of Rs. 5 lac failing which
respondent warned to sell her
daughter.
Issue: Whether "Live in
relationship" without parents'
consent is illegal?
Held: Police traces the
LAWYERS UPDATE • AUGUST 2023
‘C’. In a suit for the purchase-
money by ‘C’ against ‘B’, the
latter cannot set off debt against
the price for ‘C’ fills two different
characters, one as the vendor
to ‘B’, in which he sues ‘B’, and
other as representative to ‘A’”.
Thus, it is clear from above
discussions that in the given
problem the rule of set off will
not apply because in this case
‘C’ does not fill one and same
character but fills different
characters one as the vendor to
‘B’ in which he sues ‘B’ and other
as representative to ‘A’.
Kishor Prasad
respondent and corpus and
accordingly presented before f
court. Presiding Judge spoke to
'Corpus' and respondent in his
chamber. Both of them agreed
that corpus was not illegally
abducted since she voluntarily
left her mother's house and was
in relationship with respondent.
It is held that since both corpus
and respondent are adults and
want to live together, it had
no other option but to permit
respondent and corpus to live
together.
LAWYERS UPDATE • AUGUST 2023 41
42 LAWYERS UPDATE • AUGUST 2023
 Meaningful A bankrupt adjective. Choose
another, or rephrase.
His was a meaningful His contribution
contribution. counted heavily. Memento Often incorrectly written memento.
Not to be used for almost in formal composition
We are instituting many We are improving the
meaningful changes in curriculum in most everybody curriculum in
the curriculum. many ways most all the time almost all the time

LAWYERS UPDATE • AUGUST 2023 43

STUDY ABROAD
UNIVERSITY OF EXETER, LAW SCHOOL
The Law School has a worldwide
reputation for excellence in
teaching and research, attracting
academics, visiting lecturers
and students from across the
globe. We are an ambitious,
dynamic and friendly law school
delivering a first class legal
education at an elite Russell
Group university. We combine
academic excellence with
innovative teaching to provide
you with the experience, skills
and confidence you need to
build a successful career.
44
Courses
Bachelor of Laws (LLB Hons)
Our LLB programmes provide
an excellent start to a legal career
if that is your goal, equipping
you with the knowledge and
skills that will support you
towards the next steps to
professional legal qualification.
This includes the 'foundations
of legal knowledge' subjects
required for the academic stage
of qualification as a barrister. If
you plan to qualify as a solicitor
or barrister, after you graduate
you will need to comply with
the further training and other
LAWYERS UPDATE • AUGUST 2023
requirements of the Solicitors
Regulation Authority or the Bar
Standards Board, or the relevant
regulatory body in the country
in which you intend to practice.
Masters of Law LLM
We offers unrivalled academic
stimulation, the opportunity
to deepen your understanding
of the law and specialise your
knowledge in a particular area,
and improved career prospects
at the highest level whether that
be in practice or academia. The
Exeter LLM is a substantive,
rigorous, and genuinely flexible
programme of postgraduate

study designed for the most
ambitious and capable students.
Delivered by some of the biggest
names in legal research, our
LLM allows you to create a
bespoke programme of learning
addressing your specific
academic and professional
needs, readying you to fulfil your
career ambitions or for doctoral
study. Our faculty is able to teach
and supervise an extensive range
of subjects (both at domestic
and international level), with
particular specialities inspired
by our renowned research in the
areas of Commercial Law, Public
Law, Human Rights Law, Family
Law and International Law.
Careers
We aim to offer as many activities
as possible to help broaden
your career development
and equip you with the skills
employers find most valuable.
These include employer
visits, mooting, pro bono and
skills sessions, which provide
many opportunities to meet
and interact with potential
employers. We benefit from
a network of professional
contacts locally, nationally and
internationally who attend our
annual Law Careers Fair. Our
extensive alumni network is
keen to offer mock interviews,
mentoring and work placements
to Exeter law students. A Law
degree from the University of
Exeter will provide you with a
LAWYERS UPDATE • AUGUST 2023
STUDY ABROAD
wide range of skills suitable not
only for a career as a solicitor or
barrister, but also in the wider
world of business including
finance, administration and
commerce. Skills such as
assimilation of large amounts of
material, commercial awareness,
writing concise reports and
problem solving, which you will
develop during your degree,
are vital to a range of graduate
recruiters including those
in government and general
management.
Lasok Law Library
The Lasok Law Library, located
in the Forum, holds in excess of
40,000 volumes and is open 24
hours a day. In addition to United
Kingdom, Commonwealth and
some United States holdings, the
collection is particularly strong
in European Union, French
and German law. We also offer
access to Lexis, Westlaw and
Eur-lex, and other online legal
databases. You can choose from
diverse study spaces to suit your
specific learning needs, whether
dedicated quiet study, group
work, or social learning over a
coffee.
CONTACT
University of Exeter, Law School
Amory Building
Rennes Drive
Exeter
EX4 4RJ, UK
45
46 LAWYERS UPDATE • AUGUST 2023
1. The Special Court is
(a) Not subordinate to High
Court
(b) Superior to High Court
(c) Supplement to High
Court
(d) Equal to Supreme Court
Answer is A.
2. The powers under Section
159 of Cr.P.C. can be
exercised by a magistrate
(a) When the police decides
not to investigate the case
(b) When the investigation
is still going on
(c) Both (a) and (b)
(d) None of the above
Answer is A.
3. Statement recorded during
investigation under section
161 can be used in trial
(a) For contradicting the
witness
(b) For corroborating the
witness
(c) Incorporating in the
charge sheet
(d) Discharging the accused
Answer is A.
4. Power of taking cognizance
of offence by a Magistrate of
First class or second class is
provided
(a) Under Section 173 of
Criminal Procedure Code
(b) Under Section 190 of
Criminal Procedure Code
(c) Under Section 190 of
Indian Penal Code
(d) None of the above
Answer is B.
5. Additions or alteration of
charges is provided in Cr.
P.C.
(a) Under section 214
(b) Under section 215
LAWYERS UPDATE • AUGUST 2023
(c) Under section 216 finding of the Bar Council is
(d) Under section 210 misappropriation?
Answer is C. (a) Impose a fine
6. Which Section of Specific (b) Name of the advocate
Relief Act prohibits filing a will be struck off from the
case against the government? Rolls
(a) Section 5 (c) Suspension from practice
(b) Section 6 (d) All of the above
(c) Section 7 Answer is D.
(d) Section 8 12. On being aggrieved by the
Answer is B. order of State Bar Council,
7. The Patent Act became a law one can appeal to
in (a) High Court
(a) 1970
(b) Supreme Court
(b) 1975
(c) Bar Council of India
(c) 1996
(d) Indian Law Commission
(d) 1966
Answer is C.
Answer is A.
13. Which Section of Advocates
8. Cheque bouncing cases
Act provides punishment for
charged under section 138 of
misconduct of Advocates?
Negotiable Instruments Act
is trailed by (a) Section 29
(a) Bank Tribunal (b) Section 35
(b) Consumer Forum (c) Section 37
(c) Magistrate Court (d) All of the above
(d) Sessions Court Answer is B.
Answer is C. 14. Section 24 of Advocate Act
9. The provision of deals with
establishing Public Service (a) Qualification of
Commission is made advocates who should be
under enrolled in the Bar
(a) Article 310 (b) Qualification to become
(b) Article 315 the Advocate General
(c) Article 320 (c) Qualification to become
(d) Article 325 the Solicitor General of India
Answer is B. (d) (b) and (c)\
10. The case Krishna Gopal v. Answer is A.
State of M.P. relates to 15. Under the Workmen’s
(a) Water pollution Compensation Act, which is
(b) Air and water pollution helpful in deciding the extent
(c) Noise and air pollution of injury for compensation
(d) Water and noise (a) Insurance certificate
pollution (b) Medical examination
Answer is C. (c) Medical Certificate
11. What is the punishment for (d) (b) and (c)
advocates if the established Answer is D.
47
TOP LAW SCHOOL
DELHI INSTITUTE OF RURAL DEVELOPMENT
DIRD College was established
in 2002 as the flagship institution
of the Delhi Institute of Rural
Development to impart
education in Law. DIRD College
campus in New Delhi bears
state-of-the-art infrastructure
that creates an environment
for progressive learning and
development. DIRD has evolved
and perfected a unique approach
to knowledge delivery for our
Law programmes. We are deeply
involved at all levels of the
students’ academic life, ensuring
that they strive for excellence
from the time they step in to
the campus. Our emphasis is
on a curriculum that builds in
knowledge gathering as well
as higher order thinking skills.
With inputs from motivated and
quality faculty, the academic
performance of our students
continues to set the benchmark
for quality education in Delhi
and NCR.
PROGRAMMES
B.A LLB (Honours) – 5 Years
Integrated
Admission in the various
programs is based on the merit of
the candidate drawn on the basis
of the Common Law Admission
Test- Under Graduate(CLAT- UG
48
INSTITUTE OF LAW
2020) conducted by Guru Gobind
Singh Indraprastha University.
For all programs covered
under the CLAT, the University
prepares a list of candidates
in the order of merit in each
category. The results for all the
candidates who appeared in
Common Law Admission Test-
Under Graduate (CLAT- UG
2020) will be displayed on the
University’s website (www.ipu.
ac.in) on the specified dates for
each test. No separate intimation
will be sent to the candidates in
this regard. The fee structure
for various courses shall be as
determined by the State Fee
Regulatory Committee of Govt.
of NCT Delhi and notified by the
Guru Gobind Singh Indraprastha
University.
LLM (MASTER OF LAWS) –
1 YEAR
Delhi Institute of Rural
Development was established
in 2002. LL.M. Degree is a One
year LL.M. Degree programme
comprising of two semesters.
Syllabus and evaluation system
followed as per Guru Govind
Singh Indraprastha University.
During the regular course
of study teaching methodology
include case study, role play, group
discussion and presentation. To
LAWYERS UPDATE • AUGUST 2023
cover all students review, tutorial
classes are provided on regular
basis. In order of professional
development of the students
the law section organizes guest-
lectures, Court- visits, soft-
skills development workshop
etc. For the purpose of overall
development of the students
department also organize various
cultural programme, Inter class
competitions.
LL.M. Degree Programme by
the University Grant Commission
(UGC) is intended to enable
the existing legal education
system to compete with the
system prevailing in developed
countries like USA and UK. The
students will get an opportunity
to pursue this pioneering
post graduation programme
from an Indian University of
excellence. The Delhi Institute
of Rural Development – DIRD
of Law offers 1-Year LL.M.
Degree Programme as per
UGC Guidelines. Affiliated to
GGSIPU, Delhi & Approved
by Bar Council of India, Delhi,
the vision of CPJ School of
Law is to impart excellence in
Legal Education and become
a renowned Centre for Higher
Legal Education and Academic
Research. The LL.M. Programme
 TOP LAW SCHOOL

provides Specializations in: 1. computerized, and well and diverse atmosphere. An

Criminal Law 2. Corporate Law
3. Alternate Dispute Resolution
(ADR) 4. Intellectual Property
Rights(IPR) 5. Gender Justice
and women Empowerment
An academic year shall be
apportioned into two semesters.
Library
The college has a well-stocked
library having nearly twenty
four thousand books and regular
subscription of fifty international
and national journals; magazines
and daily newspapers. It caters
the needs of the students at
undergraduate and law graduate
level. Library is fully automated
and provided with high speed
internet connection with
numerous terminals thereby
assisting the faculty and students
to acquire knowledge through
web.
The library is modern,
stocked with current books
and periodicals, management
videos, CDs and other learning
resources. Students can also use
this room for quiet self-study.
In addition DIRD students
have access to an exhaustive
e-library permitting access to
leading journals engineering and
business magazines.
Infrastructure and Facilities
DIRD is one of the best colleges
in Delhi and NCR matching
international standards. It is one
of the few colleges in Delhi and
NCR which has upgraded its
classrooms to facilitate teaching
through modern tools and
techniques.
The college provides
high quality, state-of-the-art
infrastructure to facilitate the
students and faculty members
to conduct and promote quality
teaching and research in a plural
extensive library with electronic
databases is one of the key
characteristics of the College. All
classrooms are well equipped
and we have moot court halls,
seminar and conference halls etc.
Our campus provides a ragging
free and inclusive environment
and we immensely focus on
making our students a diverse
group of socially conscious
graduates, rooted in the concepts
of justice and equity.
Institute of Law
Delhi Institute of Rural
Development (DIRD)
Holambi Khurd, Delhi - 110082
Phone: 9667035333, 9667036333,
9667031888
Email: dirdcollege123@gmail.
com
& Delhi Institute of Rural
Development - DIRD,
G.T. Karnal Road, Nangli Poona,
Delhi – 110036

LAWYERS UPDATE
A Monthly Law Magazine for Legal Professionals & Students
SUBSCRIPTION FORM
Name ________________________________________________________________________________________________________

Address ______________________________________________________________________________________________________

____________________________________________________________________Pincode __________________________________

E-mail___________________________________________ Phone(s) ___________________________________________________

Annual Subscription : ` 900 (for 12 issues) Starting from the month next to receipt of subscription amount.
In case the subscriber wishes to have any back issues, please add `75 per issue (subject to availability).

For Online Wire Transfer : Canara Bank A/c No. 2009 2140 00006 NEFT/IFSC : CNRB 0002009
PAYMENT DETAILS

Payment by Money Order/Bank Draft/Cheque No. _____________________________________________ Dated_______________

for Rs. _____________ Drawn on__________________________________________________________ payable at Delhi in favour

of Universal Book Traders

Mail to: UNIVERSAL BOOK TRADERS

80, Gokhale Market, Opp. Tis Hazari Courts, Delhi-110054

LAWYERS UPDATE • AUGUST 2023 49

 Under the Constitution of
India, in Articles 19 and 21, every
person throughout the territory
of India is conferred with the right
to freedom of movement and
is guaranteed personal liberty.
In furtherance of this objective
set up by the Constitution,
the Indian Penal Code lays
down penal sanctions in case a
person violates the freedom of
movement or personal liberty
of another. This is done so as to
safeguard an individual’s right
to liberty against deprivation
by another individual or groups
other than State (as fundamental
rights only place an obligation on
the state).
Section 339 and 340 of Indian
Penal Code define Wrongful
Restraint and Wrongful
Confinement respectively. The
Indian Penal Code, 1860 makes
wrongful restraint and wrongful
confinement punishable under
Section 339 to 348.
According to Section 339 of
the Indian Penal Code;
“Whoever voluntarily obstructs
any person so as to prevent that
person from proceeding in any
direction in which that person has a
right to proceed, is said wrongfully
to restrain that person.”
Further, the section also lays
down an exception, which is that
if a person in good faith believes
himself to have a lawful right to
obstruct and so obstruct a private
way over land or water, then it
does not amount to wrongful
restraint.
According to Section 340 of
the Indian Penal Code;
“Whoever wrongfully restrains
any person in such a manner as to
prevent that person from proceeding
beyond certain circumscribing limits
is said to have committed the offence
of wrongful confinement.”
50
It is neither necessary that
the obstruction caused must be
physical nor is the presence of the
accused essential for any of these
offence to be wrongful under this
section.
Gabber was the richest man
in the town. At his daughter’s
wedding he erected a huge tent
and blocked certain part of the
road. Veeru was passing through
that road when he saw the tent,
there was another way from the
back but Veeru was adamant on
passing through the blocked way
and started shouting on Gabber’s
men to clear the blocked path.
Gabber called Jai, who was the
police inspector in the town. Jai
took him to the police station
where Veeru was kept till the
time the wedding function was
over.
1. Follow the instructions.
Statement I: The Constitution
of India gives every person right
to freedom of movement and
personal liberty.
Statement II: The IPC only
levies fine of to the enforce the
right given by Constitution
Choose the correct:
a. Only Statement I is correct
b. Only Statement II is correct
c. Both the Statement I and II
are correct
d. None of the above
Answer: a
2. If instead of calling police,
Gabber’s men would have
pointed a firearm at Veeru and
asked him to stay at the spot
till the wedding function is
over, which offence would be
committed?
a. Wrongful Confinement
b. Wrongful Restraint
c. Assault
d. None of the above
Answer: a
3. Follow the instructions
LAWYERS UPDATE • AUGUST 2023
Statement I: Right to move
freely is of right safeguarded by
Constitution of India
Statement II: Obstruction
can be caused by mental
apprehension too.
Choose the correct:
a. Only Statement I is correct
b. Only Statement II is correct
c. Both the Statement I and II
are correct
d. None of the above
Answer: c
4. The accused and the
complainant jointly own a well
and so both of them were entitled
to use the water for agricultural
purposes. The accused stopped
the complainant from using
the water and also stopped the
bullocks of the complainant from
moving?
a. It is Wrongful Confinement
of the complainant as he was
limited in his movements
b. It is Wrongful Restraint as
the complainant was not allowed
the right to passage
c. It is neither of the offences
since the accused believed he has
the right to block the passage
d. None of the above
Answer: b
5. X is a wealthy businessman
who has son named Y. Z called X
and asked him to not to
step out of his house for two
days or else Z will kill Y. Decide
the correct proposition?
a. It does not amount to
wrongful confinement because Z
was not present there.
b. It amounts to coercion
under Indian Contract Act.
c. It may amount to any
other offence under IPC but not
wrongful confinement.
d. It amounts to wrongful
confinement.
Answer: d
 On July 31, 2023, the Supreme
Court of India in case of Md
Asfak Alam v. State of Jharkhand
& Another, 2023 LiveLaw SC
583, reiterated the guidelines laid
down by this court in Arnesh
Kumar versus State of Bihar and
Another, [2014] 8 SCR 128.
Directions:
• High Courts were directed to
frame the below stated directions
in the form of notifications and
guidelines to be followed by
the Sessions courts and all other
and criminal courts dealing with
various offences.
• Police Chiefs i.e., Director
General of Police in all States
were also directed to ensure
that strict instructions in terms
of below stated directions are
issued.
• High Courts and the DGP’s
of all States were directed to
ensure that such guidelines
and Directives/Departmental
Circulars are issued for guidance
of all lower courts and police
authorities in each State within
eight weeks from today.
Guidelines:
Our endeavour in this
judgment is to ensure that police
officers do not arrest the accused
unnecessarily and Magistrate do
not authorize detention casually
and mechanically. In order to,
ensure what we have observed
above, we give the following
directions:
I. All the State Governments
LAWYERS UPDATE • AUGUST 2023
to instruct its police officers not
to automatically arrest when
a case under Section 498-A
IPC is registered but to satisfy
themselves about the necessity
for arrest under the parameters
laid down above flowing from
Section 41 Cr.P.C;
II. All police officers be
provided with a check list
containing specified sub-clauses
under Section 41(1)(b)(ii);
III. The police officer- shall
forward the check list duly filled
and furnish the reasons and
materials which necessitated
the arrest, while forwarding/
producing the accused before the
Magistrate for further detention;
IV. The Magistrate while
authorizing detention of the
accused shall peruse the report
furnished by the police officer
in terms aforesaid and only
after recording its satisfaction,
the Magistrate will authorize
detention;
V. The decision not to arrest
an accused, be forwarded to the
Magistrate within two weeks
from the date of the institution
of the case with a copy to the
Magistrate which may be
extended by the Superintendent
of Police of the district for the
reasons to be recorded in writing;
VI. Notice of appearance in
terms of Section 41-A Cr.P.C be
served on the accused within two
weeks from the date of institution
Anshul Jain
of the case, which may be
extended by the Superintendent
of Police of the district for the
reasons to be recorded in writing;
VII. Failure to comply with
the directions aforesaid shall
apart from rendering the police
officers concerned liable for
departmental action, they shall
also be liable to be punished for
contempt of court to be instituted
before the High Court having
territorial jurisdiction.
VIII. Authorizing detention
without recording reasons
as aforesaid by the Judicial
Magistrate concerned shall be
liable for departmental action by
the appropriate High Court.
We hasten to add that the
directions aforesaid shall not
only apply to the case under
Section 498-A IPC or Section 4 of
the Dowry Prohibition Act, the
case in hand, but also such cases
where offence is punishable with
imprisonment for a terms which
may be less than seven years or
which may extend to seven years,
whether with or without fine.
51

212. Courts not to inquire
into proceedings of the
Legislature.—(1) The validity
of any proceedings in the
Legislature of a State shall
not be called in question on
the ground of any alleged
irregularity of procedure.
(2) No officer or member
of the Legislature of a State
in whom powers are vested
by or under this Constitution
for regulating procedure or
the conduct of business, or
for maintaining order, in the
Legislature shall be subject to
the jurisdiction of any court in
respect of the exercise by him
of those powers.
The corresponding article in
regard to Union Parliament is
article 122.
The validity of an Act passed
by the Legislature cannot be
questioned on the ground of
irregularity in the procedure
followed by the Legislature.
The validity of proceedings
in the Legislature can be
questioned on a ground other
than irregularity of procedure.
Thus, the proceedings would
not be protected if they are held
in defiance of the mandatory
provisions of the Constitution
or by exercising some powers
which the Legislature under the
Constitution does not possess.
There would be no immunity
if the impugned procedure is
illegal and unconstitutional. It
would be open to be scrutinised
52
CONSTITUTION
OF INDIA
The Constitution of India is the fountainhead from which all our laws derive
their authority and force. This is next Article in the series on constitutional
provisions in order to aid our readers in understanding them.
in a court of law.
An officer carrying out the
orders of the Speaker within
the precincts of the House is
protected by the provisions
contained in the Constitution.
Such actions are beyond the
cognisance of ordinary courts.2
However, article 212(2), exercise
of powers vested in an officer
under the Constitution. It does
not protect from challenge before
the court exercise of any power by
such officer which is not vested
in him under the Constitution.
Absence of opportunity
to the person who is likely to
be affected by the effect of the
decision of the Assembly is
undoubtedly a decision which
may suffer from irregularity in
procedure. The constitutional
mandate cannot however be
ignored and the Constitution
makers clearly intended that
the Legislature would not be
answerable to a court in the
matter of its proceedings on the
ground of validity of procedure.
Article 212 forecloses any
scrutiny by the court into the
procedure adopted by the House.
The validity of the proceedings
inside the Legislature cannot be
called in question on the ground
that the procedure laid down
by the law has not been strictly
followed. The decision of the
Assembly cannot be challenged
on the ground that there was any
irregularity in the procedure.
Article 212 creates an express
bar against a challenge to any
LAWYERS UPDATE • AUGUST 2023
Article 212
Dr Subhash C Kashyap
proceedings of the Legislature on
the ground of alleged irregularity
of procedure.
Article 212(1) seems to make
it possible for a citizen to call
in question in the appropriate
court of law, the validity of any
proceedings inside the legislative
chamber, if the case is that the
said proceedings suffer not from
mere irregularity of procedure,
but from an illegality. If the
impugned procedure is illegal
and unconstitutional, it would be
open to be scrutinised in a court
of law, though such scrutiny
is prohibited if the complaint
against the procedure is not more
than this that the procedure was
irregular.
Article 212 of the Constitution
operates as a bar to the
jurisdiction of the High Court
being invoked for the issue of a
writ under article 226 against the
Speaker of the Assembly or the
Secretary of the Assembly. The
Secretary of the Assembly is an
officer of the Legislature within
the meaning of article 212(2) of
the Constitution.
A point of order raised by a
member as to whether a certain
matter should be discussed or
not in the Assembly relates to
the conduct of the Legislative
Assembly. The Rules of Procedure
and Conduct of Business made in
exercise of the powers conferred
by clause (2) of article 208 of
the Constitution, confer on the
Speaker the power of deciding
all points of order that may arise.
Under article 212(2) of
the Constitution, the Speaker
of a Legislative Assembly is
undoubtedly an “officer of
the Assembly. The phrase “in
respect of” in article 212 has
wider connotation than the
word “in” and so long as the
Speaker’s action is relatable to
any of the provisions dealing
with his powers for regulating
the procedure and conduct of
business in the Legislature, the
Court’s jurisdiction would be
ousted. Any rule regulating
the notice of questions is a
rule regulating the conduct of
business in the Legislature and
the Speaker’s ruling in regard to
such notice of questions in the
exercise of his powers under the
rules cannot be questioned in a
Court of Law.
The Speaker could refer
any question of privilege to the
Committee of Privileges for
examination, investigation or
report. Whether the question
was one of privilege or not was
a matter solely for the Speaker to
decide. Even if there had been no
express rule, the High Court had
no jurisdiction to issue a writ,
direction or order relating to a
matter which affected the internal
affairs of the House as under
article 212 both the Speaker and
the other officers were protected
from scrutiny by a court of law
for what was done in the House.
While there is no doubt that
the right of a member to continue
to represent his constituency in
Parliament gets affected by his
suspension for whatever period,
yet even on that assumption
LAWYERS UPDATE • AUGUST 2023
there is no legal remedy open to
member if his rights get affected
by something done within the
walls of the Legislature. Article
212(2) of the Constitution is
decisive on the point.
Where irregularity occurs
in the proceedings before the
Assembly, the validity of those
proceedings cannot, by virtue
of clause (1) of article 212 of
the Constitution, be called in
question before a Court of law
on the ground of irregularity in
procedure.
A Speaker of Parliament
or Legislature or a Chairman
of the Rajya Sabha are officers
within the meaning of articles
122 or 212 of the Constitution.
Ministers of the Government
whether of the Centre or of States
are also members respectively
of Parliament or Legislature; as
such the courts cannot interfere
with them in the part they play
in the proceedings or business of
the Houses of Parliament or State
Assembly nor can they interfere
with their privileges, as the rights
of any of them to introduce any
Bill in their respective assemblies
are rights and privileges of these
members whether as members or
as Ministers. There is an inherent
right in the Legislature to
conduct their affairs without any
interference from any outside
body.
The question of interpretation
of the rules lies with the Speaker
so that even if the procedure
adopted by the Speaker is
irregular, it would not be open
to the High Court to go into the
matter, because the decision of
the Speaker has a finality on
the point. The protection from
interference by court will not
apply when the Speaker or the
Chairman has exceeded his
powers.
The ruling of the Speaker
adjourning the Legislature on the
wrong assumption can be called
in question in a Court of Law.
Breach of article 211 on
the floor of the Assembly is a
matter not for the court but for
determination by the presiding
officer of the House. Article
212(1) immunises the House
proceedings to be challenged
on the ground of irregularity of
procedure and it is not open to
the court to issue a notice to the
presiding officer of the House
when the proceeding in which it
is issued is itself outside the pale
of determination by the courts.
The question whether a member
has contravened article 211 while
speaking in the House is one for
determination by the presiding
officer of the House. The court
cannot send for records or quash
the proceedings.
The form, content or subject
matter of a Bill at the time of its
introduction or its consideration
by the Assembly on the report
of the Select Committee, is not
a matter with which a court of
law is concerned. The question,
whether the Assembly should
have passed the Bill as reported
by the Select Committee or
recommended it to the Select
Committee or dropped the Bill,
is a domestic matter relating
to the procedure followed by
the Assembly in the course
of legislation. If there is any
irregularity in the procedure
followed by the Assembly in
passing the Bill it does not make
the culminating Act invalid or
ultra vires.
The proceedings of a
Committee are in substance
and effect proceedings of the
Legislature itself. Article 212
therefore applies equally to both
the proceedings. The question
whether the report presented to
the Legislative Assembly by the
Committee is vitiated by any
procedural irregularity cannot be
considered by a Court of Law.
Article 212 cannot cure want
of legislative competence but the
53
validity of the proceedings inside
the Legislature of a State cannot
be called in question on the
allegation that the procedure laid
down by the law had not been
strictly followed. No court can
go into those questions which are
within the special jurisdiction of
the Legislature itself, which has
the power to conduct its own
business.
Where the Secretary of the
Legislature is exercising certain
ministerial functions inside
the House and he has been
summoned under the writ to
state what happened inside the
Legislature, it cannot be said that
in the exercise of such official
Discover Your School’s Legal Culture
Law-be it written in
statutes, regulations, cases, or
constitutional text has no force
without a culture to support it.
Laws are merely words without
institutions to enforce them
and individuals to apply them.
Many lawless nations have laws
on the books, but a law-bound
community has a culture to
support those written principles.
The same is true for law school.
Law school requires a culture to
sup- port its students.
54
duties he was one who was
exercising power vested in him
in the Constitution for regulating
the procedure or conduct of
business for maintaining order
therein.
On a plain reading of article 212
of the Constitution it will appear
that framers of the Constitution
have barred an enquiry in
respect of any proceedings in
the Legislature on the ground
of any alleged irregularity of
procedure but if the procedure
followed is unconstitutional or
illegal than the jurisdiction of
the court to examine the validity
of a proceeding based on such
procedure has not been ousted.
Rule 2
As a student, you must
discover how the particular
culture and institutions of your
school shape the law of law
school. You are now part of that
culture and will help to shape
it. But first you must study your
particular culture. Who are the
deans, the administration, the
staff? Where are the student
support structures? Who is the
law student leader? What is the
governing structure? Figure out
the in- situational framework for
LAWYERS UPDATE • AUGUST 2023
The Legislative Assembly may
depart from rules of procedure it
has itself laid down for purposes
of managing its internal affairs.
Such departure will not render
it liable to be scrutinised by
any external authority for not
following the rule laid down by
itself.
The immunity envisaged in
article 212(1) of the Constitution
is restricted to a case where
the complaint is no more
than that the procedure was
irregular. If the impugned
proceedings are challenged as
illegal or unconstitutional such
proceedings would be open to
scrutiny in a court of law.
how the school operates, from
the registrar to the editors of
the law review. Each has a role
in how the school operates, and
you should make a conscious
decision to understand how they
all fit together. The first clue to
understanding a legal code is to
step back and study its structure
and organization. The same
is true for understanding law
school.