Cases mentioned in the text book

Maneka Gandhi v. Union of India

Keshavanda Bharathi v. State of Kerela

Three Judges Cases
Hussainara Khatoon v. State of Bihar
Shanta Bai v. State of Bombay
In Shanta Bai v. State of Bombay (1958 SC 532), the distinction between
movable and immovable property was observed. If the intention is to reap fruits
from the trees, then it is regarded as an immovable property. But if the intention
is to cut down the tree and use it as timber, it would be regarded as movable
property.

FACTS: Shantabai’s husband had granted her the right to take and
appropriate all kinds of wood from certain forests in his Zamindary
through an unregistered document. With the passing of the Madhya
Pradesh Abolition of Proprietary Rights (Estates, Mahals, and
Alienated Lands) Act, 1950, all proprietary rights in land vested in the
State U/S 3 of this Act and the petitioner could no longer cut any
wood. She obtained an order U/S 6(2) of the Act from the Deputy
Commissioner and started cutting trees. The Divisional Forest Officer
took action against her and passed an order directing that her name
might be cancelled and the cut materials forfeited. She moved the
State Government against this order but to no effect. Thereafter she
applied to this Court under Art. 32 of the Constitution and contended
that the order of Forest Officer infringed her fundamental rights under
Arts. 19(i)(f) and 19(1)(g).

LEGAL PRINCIPLE UPHELD: This case basically relates as to what

constitutes ‘standing timber’. However, the SC has in its judgement also
talked about the phrase ‘benefit arising out of land’ and held that right to
enter upon land and cut trees is a benefit arising out of land. The SC has
based its decision on this point on the Anand Behera case.

REASONING BEHIND JUDGEMENT:

“In my opinion, the document only confers a right to enter on the lands
in order to cut down certain kinds of trees and carry away the wood.”
 “It is not a ‘transfer of a right to enjoy the immoveable property’ itself
(s. 105 of the Transfer of Property Act), but a grant of a right to enter
upon the land and take away a part of the produce of the soil from it. In a
lease, one enjoys the property but has no right to take it away. In a profit
a prendre one has a licence to enter on the land, not for the purpose of
enjoying it, but for removing something from it, namely, a part of the
produce of the soil.”

“Following the decision in Ananda Behera’s case, I would hold that a

right to enter on land for the purpose of cutting and carrying away
timber standing on it is a benefit that arises out of land. There is no
difference there between the English and the Indian law.”

Magan Bhai Patel v Union of India

, the court held that if a treaty or international agreement restricts the

rights of the citizens or modifies the laws of the state would require to
have a legislative measure. E.g. If India is a party to an international
agreement to stop the killing of a species of turtle, it restricts the right to
trade of certain fishermen by prohibiting killing of the turtle. If this treaty
is to be enforced in India, the Indian Parliament needs to pass a
domestic legislation regarding prohibition of the killing of such turtle
species.

Cooper v. Cooper
In Cooper v. Cooper 1874, LR 7 HL 53, the Court held that the doctrine of
election applied on every instrument and all types of property.
The parties had been married for 26 years. Over a two year period, they negotiated
a separation agreement which gave the wife one-half of the husband's military
pension; virtually all of the matrimonial assets, including the home; and fixed-term
spousal support for six years from the date of the agreement at an amount equal to
40 per cent of the husband's employment income. Following the separation, the
wife continued to operate a llama farm at a deficit each year, using up some of her
capital and all of her income. After the fixed-term spousal support ended, she
applied to set aside the agreement and sought indefinite spousal support on the
basis that the agreement did not meet the objectives of the Divorce Act when
negotiated because self-sufficiency was not an attainable goal within the time
allowed. The husband had remarried and his new wife was seriously ill and unable
to work other than minimally. In anticipation of the end of his support obligation,
they had adopted a child.
The Corollary Relief Judgment incorporating the terms of the separation agreement
is granted; the agreement is upheld. Instead of embarking upon a career or
undertaking retraining to be in a position to eventually pay some of her living
expenses during the 8.5 years that she was receiving spousal support, the wife
chose to become a hobby farmer and pursue a passion which she knew, or ought to
have known, would not contribute to her financial well-being. The wife had
received over two-thirds of the parties' assets and at the time that the agreement
was made, financial independence to the standard that prevailed during the
marriage was a realistic and attainable goal with a combination of investment and
employment income.
M.C. Mehta v. Shri Ram Foods and Fertilizer Industries
On 4 and 6 December 1985, there was leakage of oleum gas from one of its units
which caused the death of an advocate and affected the health of several others.
The incident took place on December 4, 1985.
Sreerangayee case (1973) 1 MLJ 231
The above extract reveals the harrowing tale of a poverty-stricken woman with a
capacity to earn Rs. 2/- a day charged with maintaining five children between the
ages of 11 and 1 1/2 years, the callousness of her husband towards his wife and
children and his beastly desire in requiring a concubine during times when his wife
is disabled 'by him, the indifference of neighbours in general, the mean advantages
which the husband's brother wanted to get from his sister-in-law when she asked
him for a loan of Rs. 2/- and the Doctor who demanded payment of money for
treating her children when they fell ill and only a spoonful of 'Tamil' which alone
used to be served to children presumably in the mid-day meal schema.

Even so, the accused is not justified in murdering her children and attempting to
put an end to her life also. We can only take these circumstances into account in
inflicting the punishment and seeking to reform her as a useful member of society.
The Government have also as a policy provided for detention of such females
convicted of infanticide and we propose to adopt such a course. In the
circumstances of the case we recommend to the Government for commuting the
sentence of life imprisonment imposed on the accused for an offence under Section
302, Indian Penal Code and, in supersession of the recommendation made by the
Sessions Judge to substitute an imprisonment for a period of one year, the said
period of one year being in lieu of the sentences passed on her both under Sections
302 and 309, Indian Penal Code. We further direct in accordance with G.O.Ms.
N0.222 Law, (General) Department, dated 20th January, 1931, that the
Government may detain the accused in the Madras Seva Sadan or any other
institution having similar objectives for a certain period, to be fixed by the
Government to train her and make her fit to earn a decent livelihood.
(Konkan Railways Corp. Ltd. v. Mehul Construction Co. (2000) 7 SCC 201).

Madam Pillai V. Badar Kali

Gajadhar v. Rombhaee
In ajadhar v. Rombhaee 1938 Nag. 439, a theatre was sub-leased and the sub-
lessee was prevented from using the theatre by the original lessor on the ground
that a notice was served on the lessee for determining the lease. The sub-lessee
had to pay an additional amount to the proprietor (the original lessor) and then
take the lease. It was held that there is violation on the part of the original lessor
and the sub-lessee can sue the original lessor for damages for violation of quiet
enjoyment of the property.
Marshall v. Green

1. Balfour v. Balfour
2. Carlill v. Carbolic Smoke Ball
3. Durga Prasad V. Baldeo
4. Donoghue v Stevenson
5. Union Carbide Corporation ( Bhopal gas tragedy)
6. M.C. Mehta v. Shri Ram Foods and Fertilizer Industries,
7. State of Maharashtra v. Mayor Hans George, AIR 95 SC
The respondent, a German smuggler, left Zurich by plane on
27th November 1962 with 34 kilos of gold concealed on his person to be
delivered in Manila. The plane arrived in Bombay on the 28th but the
respondent did not come out of the plane. The Customs Authorities examined
the manifest of the aircraft to see if any gold was consigned by any
passenger, and not finding any entry they entered the plane, searched the
respondent, recovered the gold and charged him with an offence under ss.
8(1) and 23(1-A) of the Foreign
Exchange Regulation Act (7 of 1947) read with a notification
dated 8th November 1962 of the Reserve Bank of India which
was published in the Gazette of India on 24th November. The
respondent was convicted by the Magistrate, but acquitted by
the High Court on appeal. In the appeal by the State to the
 Supreme Court, the respondent sought to support the judgment
of the High Court by contending that : (i) Mens rea was an
essential ingredient of the offence charged and as it was
not disputed by the prosecution that the respondent was not
I aware of the notification of the Reserve Bank, he could
not be found guilty, (ii) the notification being merely
subordinate or delegated legislation could be deemed to be
in force only when it was brought to the notice of persons!
affected by it and (iii) the second proviso in the
notification requiring disclosure in the manifest was not
applicable to gold carried on the person of a passenger.
HELD : (per RAJAGOPALA AYYANGAR and MUDHOLKAR JJ.) (i) On
the language of s. 8(1) read with s. 24(1) of the Act, which
throws on the accused the burden of proving that he had the
requisite permission to bring gold into India, there was no
scope for the invocation of the rule that besides the mere
act of voluntarily bringing gold into India any further
mental condition or mens rea is postulated as necessary to
constitute an offence referred to in s. 23(1-A). Further,
the very object and purpose of the Act and its effectiveness
as an instrument for the prevention of smuggling would be
entirely frustrated if a condition were to be read into the
sections qualifying the plains words of the enactment,that
the accused should be proved to have knowledge that he was
contravening the law before he could be held to have
contravened the provision. [145G; 147G; 154C-D; 157D-E].
Case law reviewed.
The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh,
Addl. Collector of Customs, Calcutta (A.I.R. 1964 S.C.
1140) followed.
(ii) The notification was "published" and made known in
India by publication in the and the ignorance of it by the
respondent who is a foreigner was wholly irrelevant and
made no difference to his liability

8. Kartar Singh v. State of Punjab

It is not disputed that trouble arose between close relations at the time of
marriage and thereafter some days before the incident there was exchange of
abuse. According to the prosecution this present appellant and three others
went to the house of Ravel Singh and it is clear that they attacked him. The
act attributed to the present appellant is that he gave a stab wound in the
abdomen of the deceased which apparently resulted in the death of the
deceased

3. It is also not in dispute that in this incident this appellant and other
accused also received some injuries. This appellant is alleged to have
received number of injuries, two with sharp weapons and other injuries by
blunt weapons. Accordingly to the prosecution story, one Mehar Singh who
was examined as a witness for prosecution stated that he took up a seroo (the
leg of the cot) and inflicted injuries by it on this accused also

4. The defence set up by the present appellant in the course of cross-

examination of witness was that in fact he had gone to the house of Ravel
Singh to lodge a protest about what was said earlier and when he lodged the
protest Ravel Singh attacked the present appellant and the persons
accompanying him and in this scuffle when he received injuries he took out
the knife which he was carrying and inflicted a blow on the deceased which
resulted in his death. The appellant is alleged to be of 18 years at the time of
the incident and therefore after conviction he has been sent to a borstal
school

5. The circumstances that appear are that there is no clear explanation of the
injuries on the accused person. The appellant has set up a defence that the
scuffle started and it is only in that situation that he took out the knife and
inflicted a blow. It is also not in dispute that it was only one blow which was
inflicted by the present appellant. In these circumstances, the evidence of the
prosecution does not clearly establish the manner in which the incident took
place and, therefore, it could not be held that the incident did not take place
in the manner suggested by the present appellant accused, and in that
situation it could not be held that he inflicted this injury with an intention to
cause death. At best, knowledge could be imputed to him that it may result
in death.

6. In view of this the conviction of the appellant under Section 302 could not
be maintained. The conviction of the appellant is altered to Section 304 Part
II. He has already been in custody for more than five years.
9. Sahoo v. State of U.P
Sahoo, the appellant, is a resident of Pachperwa in the District of Gonda. He has
two sons, Badri and Kirpa Shanker. He lost his wife years ago. His eldest son,
Badri, married one Sunderpatti. Badri was employed in Lucknow, and his wife was
residing with his father. It is said that Sunderpatti developed illicit intimacy with
Sahoo; but there were incessant quarrels between them. On August 12, 1963,
during one of those quarrels, Sunderpatti ran away to the house of one Mohammed
Abdullah, a neighbour of theirs. The appellant brought her back, and after some
wordy altercation between them they slept in the only room of their house. The
only other inmate of the house was the appellant's second son, Kirpa Shanker, a lad
of about 8 years. On the morning of August 13, 1963, Sunderpatti was found with
serious injuries in the room of the house where she was sleeping and the appellant
was not in the house. Sunderpatti was admitted in the Sadar Hospital, Gonda, at
5.25 p.m. on that day and she died on August 26, 1963 at 3 p.m. Sahoo was sent up
for trial before the Court of Sessions, Gonda, on a charge under s. 302 of the Indian
Penal Code.

The learned Sessions Judge, on a consideration of the entire evidence came to the
conclusion that Sahoo killed Sunderpatti. On that finding, he convicted the accused
under s. 302 of the Indian Penal Code and sentenced him to death. On appeal, a
Division Bench of the High Court at Allahabad confirmed both the conviction and
the sentence. Hence the appeal.

Except for an extra-judicial confession, the entire evidence in the case is

circumstantial. Before we advert to the arguments advanced in the appeal it will be
convenient to narrate the circumstances found by the High Court, which are as
follows : (1) The accused had illicit connections with the deceased; (2) the
deceased and the accused had some quarrel on the Janmashtami day in the evening
and the deceased had to be persuaded through the influence of their neighbours,
Mohammed Abdullah and his womenfolk, to go back to the house of the accused;
(3) the deceased was seen in the company of the accused for the last time when she
was alive; (4) during the fateful night 3 persons, namely, the accused, the deceased
and the accused's second son, Kirpa Shanker (P.W. 17), slept in the room inside the
house; (5) on the early morning of next day, P.W. 17 was asked by his father to go
out to attend to calls of nature, and when he came back to the varandah of the
house he heard some gurgling sound, and he saw his father going out of the house
murmuring something; and (6) P.Ws. 9, 11, 13 and 15 saw the accused going out
of the house at about 6 a.m. on that day soliloquying that he had finished
Sunderpatti and thereby finished the daily quarrels.This Court in a series of
decisions has reaffirmed the following well-settled rule of "circumstantial
evidence". The circumstances from which the conclusion of guilt is to be drawn
should be in the first instance fully established. "All the facts so established should
be consistent only with the hypothesis of the guilt of the accused and the
circumstances should be of a conclusive nature and tendency that they should be
such as to exclude other hypotheses but the one proposed to be proved."

Before we consider whether the circumstances narrated above would stand the said
rigorous test, we will at the outset deal with the contention that the soliloquy of the
accused admitting his guilt was not an extra-judicial confession as the Courts
below held it to be. If it was an extra-judicial confession, it would really partake
the character of direct evidence rather than that of circumstantial evidence. It is
argued that it is implicit in the concept of confession, whether it is extra-judicial or
judicial, that it shall be communicated to another. It is said that one cannot confess
to himself : he can only confess to another. This raises an interesting point, which
falls to be decided on a consideration of the relevant provisions of the Evidence
Act. Sections 24 to 30 of the Evidence Act deal with the admissibility of
confessions by accused persons in criminal cases. But the expression "confession"
is not defined. The Judicial Committee in Pakala Narayana v. R. [L.R. 66 I.A. 66]
has defined the said expression thus :

"A confession is a statement made by an accused which must either admit in terms
the offence, or at any rate substantially all the facts which constitute the offence."

A scrutiny of the provisions of ss. 17 to 30 of the Evidence Act discloses, as one

learned author puts it, that statement is a genus, admission is the species and
confession is the sub-species. Shortly stated, a confession is a statement made by
an accused admitting his guilt. What does the expression "statement" mean ? The
dictionary meaning of the word "statement" is "the act of stating, reciting or
presenting verbally or on paper." The term "statement", therefore, includes both
oral and written statements. Is it also a necessary ingredient of the term that it shall
be communicated to another ? The dictionary meaning of the term does not warrant
any such extension; nor the reason of the rule underlying the doctrine of admission
or confession demands it. Admissions and confessions are exceptions to the
hearsay rule. The Evidence Act places them in the category of relevant evidence,
presumably on the ground that, as they are declarations against the interest of the
person making them, they are probably true. The probative value of an admission
or a confession does not depend upon its communication to another, though, just
like any other piece of evidence, it can be admitted in evidence only on proof. This
proof in the case of oral admission or confession can be offered only by witnesses
who heard the admission or confession, as the case may be. The following
illustration pertaining to a written confession brings out the said idea : A kills B;
enters in his diary that he had killed him, puts it in his drawer and absconds. When
he places his act on record, he does not communicate to another, indeed, he does
not have any intention of communicating it to a third party. Even so, at the trial the
said statement of the accused can certainly be proved as a confession made by him.
If that be so in the case of a statement in writing, there cannot be any difference in
principle in the case of an oral statement. Both must stand on the same footing.
This aspect of the doctrine of confession received some treatment from well-
known authors on evidence, like Taylor, Best and Phipson. In "A Treatise on the
Law of Evidence" by Taylor, 11th Edn., Vol. I, the following statement appears at
p. 596 :"What the accused has been overheard muttering to himself, or saying to
his wife or to any other person in confidence, will be receivable in evidence."

10.L Chandra Kumar case JT 1997 (3) SC 589

Pursuant to Article 323-A and 323-B of the Constitution of India the Central
Administrative Tribunal, with five Benches, was established on November 1, 1985.
However, even before the Tribunal had been established, several writ petitions had
been filed in various High Courts as well as the Supreme Court, challenging the
constitutional validity of Article 323-A, on the ground that it is contrary to the
spirit of the Constitution as it excludes the jurisdiction of the Supreme Court under
Article 32 of the Constitution and the High Court under Article 226 of the
Constitution. Through an interim order[3] in S. P. Sampat Kumar v. Union of
India[4] the Supreme Court, in order to ensure the functioning of the Tribunal
along with sound Constitutional principles, directed carrying out of certain
measures.
When Sampat Kumar’s case was finally heard, these changes had already been
incorporated in the body and text of the Act. The Supreme Court took the view that
most of the original grounds of challenge –which included the challenge to the
constitutional validity of Article 323-A – did not survive and restricted its focus to
testing only the validity of the provisions of the act. In the final decision it was
held that though judicial review is the basic feature of the Constitution, the vesting
of the power of judicial review in an alternative Institutional Mechanism, after
taking it away from the High Court, would not be violative of the basic structure of
the Constitution, so long it was ensured that the alternative mechanism was an
effective and real substitute for the High Court.

Similar questions were raised subsequently in many cases and one of them was L.
Chandra Kumar v. Union of India[5]. In this case after analyzing the relevant
Constitutional provisions and the circumstances which led to the decision in
Sampat Kumar’s case, the bench reached the conclusion that:- on account of the
divergent view expressed by the Supreme Court in a series of cases after Sampat
Kumar’s case, the resulting situation warranted a fresh look by a larger Bench
over all the issues adjudicated by the Court in Sampat Kumar’s case including the
question whether the Tribunal can at all have an Administrative Member on its
bench, if it were to have the power of even deciding the constitutional validity of a
statute or Article 309 rule as decided in J. B. Chopra v. Union of India[6].The
present case under discussion is the very case where the larger bench looked over
all the issues adjudicated by the Court in Sampat Kumar’s case.
Issues raised:

1. Whether the power conferred upon the Parliament by Article 323-A (2) (d)
or upon the State Legislature by Article 323-B (3) (d) of the Constitution of
India, to totally exclude the jurisdiction of ‘all courts’, except that of the
Supreme Court under Article 136 ?
2. Whether the Tribunals constituted either under Article 323A or under Article
323B of the Constitution, possess the competence to test the constitutional
validity of a statutory provision or rule?
3. Whether the Tribunals, as they are functioning at present, can be said to be
the effective substitutes for the High Court in discharging the power of
judicial review? If not, what are the changes required to make them conform
to their founding objectives?

Judgment
Issue 1 :- Whether the power conferred upon the Parliament by Article 323-A (2)
(d) or upon the State Legislature by Article 323-B (3) (d) of the Constitution of
India, to totally exclude the jurisdiction of ‘all courts’, except that of the Supreme
Court under Article 136, in respect of disputes and complaints referred to in
Article 323-A (1) or with regard to all or any of the matters specified in Article
323-B (2), runs contrary to the power of judicial review conferred on the High
Court u/as 226/227 and on the Supreme Court u/a 32 of the Constitution of India?

In adjudging this issue the Bench made a study of the provisions of the
Administrative Tribunals Act particularly Section 28. It pointed out that although
Section 28 was originally enacted in express terms with Article 323A of the
Constitution and the only exception was made in respect to the jurisdiction of the
Supreme Court under Article 136 but when the final hearing of Sampat Kumar’s
case was concluded the provision was already amended to save the jurisdiction of
the Supreme Court under Article 32 of the Constitution. It also pointed out that as
Sampat Kumar case was specifically related with power of judicial review of the
Supreme Court, and as it already had been returned to the court, the court
expressed itself satisfied with the position as it had emerged during the pendency
of Sampat Kumar case and the court did not ventured to address the larger issue of
whether Article 323A (2) also required a similar amendment.

The court also found that the main intention behind the Act was to provide for a
self-contained, self-sufficient and exclusive forum of adjudicating all service
related matters. But it made it clear that it was intended to perform a substitution
role and not a supplemental role.

Next it ventured in examining post-Sampat Kumar cases and found that those cases
did not specifically addressed the question regarding the power of the
Administrative Tribunals in striking down a statute or provision as
unconstitutional. In J. B. Chopra’s case[7] the Division Bench felt that it would
follow as a logical and direct consequence of the judgment in Sampat Kumar’s
case. In M. B. Majumdar v. Union of India[8] the bench held that Administrative
Tribunals can be equated with High courts as regards to its jurisdiction in service
matters but not in case of service conditions of the members of the tribunal. In R.
K. Jain v. Union of India[9], which coincidently had the same bench as in the
discussed case, analyzed the relevant provisions, and cases such as Sampat Kumar,
Chopra, Majumdar etc. and found that the Tribunals under Article 323A cannot be
substitutes to the High Court as their performance was not satisfactory and also
because they leave the litigants with only one remedy under 136 by the way of
appeal to the Supreme Court which is costly affair. It suggested that an expert body
like the Law Commission of India should study the feasibility of providing an
appeal to a two judge Bench of the High Court from a decision of the Tribunals.

The court also took in view the suggestions made by the learned counsels. Mr.
Rama Jois and Mr. Shanti Bhushan urged the court to review the judgment in
Sampat Kumar’s case and contended that Articles 323A (2) (d) and 323B (3) (d)
should be declared unconstitutional to the extent they exclude the jurisdiction of
the High Court. Mr. Bhatt, the learned Additional Solicitor General, Mr. P. P. Rao
and Mr. K. K. Venugopal on the other hand urged the court to uphold the validity
of the said Articles. Mr. A. K. Ganguly cited that the power of judicial review
vested on the constitutional Courts cannot be bestowed on newly created quasi-
judicial bodies which are susceptible to executive influences. Next it went to
discuss the other facet of this issue viz. judicial review and the basic feature of the
constitution. After citing various cases like Kesavananda Bharati’s case[10],
dissenting view of Chandrachud J. in Indira Nehru Gandhi v. Raj Narain[11],
Minority judgment of Bhagwati J. in Minerava Mills v. Union of India[12] and the
view, or rather a revised view, of Chandrachud CJ. In Fertilizer Corporation
Kamgar Union v. Union of India[13], the Court came to the conclusion that
judicial review is indeed a basic feature of the Constitution.

Also the court relied on the view of Dr. B. R. Ambedkar, the Chairman of the
Drafting Committee of the Constitution of India regarding Article 25
(corresponding to the present Article 32 of the Constitution) where he said that this
Article is the very soul of the Constitution.

Issue 2 :- Whether the Tribunals constituted either under Article 323A or under
Article 323B of the Constitution, possess the competence to test the constitutional
validity of a statutory provision or rule?

In this regard the court cited took help from the American practice regarding
judicial review. The court also found that the definition of judicial review in
America and in India are similar and therefore went on to review the position of
judicial review in America and for this relied on the view of Henry J.
Abraham(Henry J. Abraham, The Judicial Process[14], an acclaimed American
Constitutional Law scholar. It found that theoretically every Court in America, no
matter how high or low, had the power of judicial review although it is seldom
used. That is there is no blanket prohibition on the conferment of judicial power
upon Courts other than the U. S. Supreme Court.
The court also agreed that if the power of judicial review under Article 32 of the
Constitution, which has been described as the heart and soul of the Constitution,
can be additionally conferred on any other court, there is no reason why the same
cannot be done in case of the power conferred upon the High Court under Article
226 of the Constitution. However it is must that the jurisdiction of the High Court
under Articles 226/227 and of the Supreme Court under Article 32 is retained and
the Tribunals function as a supplementary body.

In giving the reason of this view the learned Court pointed out the following
points:

In view of the unprecedented increase of litigation it is necessary to provide

Tribunals with supplementary power of judicial review. In this regard the decision
in Sampat Kumar’s case was correct as it adopted the theory of alternative
institutional mechanism in such a backdrop of serious backlog of cases in the High
Court.

 It is very necessary for clearing the backlog of pending cases which has
assumed a colossal proportion.
 Although the Tribunals have not performed upto the expectations it would
not be satisfactory to attribute these problems to the very basic principles of
its establishment and hold them as unsound. The reasons for the
establishment of the Tribunals still persist and have become more
pronounced in the recent times.

However it held that the jurisdiction of the Tribunals would be subject to the
review of the High Court under Articles 226/227. This would serve two purposes;
one it will ensure that frivolous claims would be filtered out through the process of
adjudication in the Tribunal and two, the High Court will not lose its power of
judicial review. Thus the Supreme Court held that the Tribunals constituted either
under Article 323A or under Article 323B of the Constitution, possess the
competence to test the constitutional validity of a statutory provision or rule
subject to the review by the High Court.

Issue 3 :- Whether the Tribunals, as they are functioning at present, can be said to
be the effective substitutes for the High Court in discharging the power of judicial
review? If not, what are the changes required to make them conform to their
founding objectives?
The Court throughout the judgment pointed out that the Tribunals are not
substitutes of the High Court but are supplementary. Moreover it suggested the
following changes:

 They will function as a supplementary body and all such decisions of the
Tribunals will be subject to the scrutiny before a Division Bench of the
respective High Courts.
 The contention that appointment of Administrative members to
Administrative tribunals should be stopped cannot be accepted as a judicious
mix of judicial members and those with grass-root experience would be
better suited for the purpose of speedy and efficient discharge of justice.
 To remove the inefficiency of the Tribunals the tribunals should be made
subject to the supervisory jurisdiction of the High Court.
 The Ministry may appoint an independent supervisory body to oversee the
working of the tribunals.

Ratio Decendi

 Power of judicial review over legislative action vested in the High Courts
and the Supreme Court under Articles 226 and 32 respectively is the basic
structure of the Constitution.
 Power of judicial superintendence over decisions of all courts and Tribunals
within their jurisdiction is the basic structure of the Constitution
 Judicial review of legislative action in exercise of power by subordinate
judiciary or Tribunals created under ordinary legislation cannot be to the
exclusion of the High Courts and the Supreme Court. However they can
perform supplemental – as opposed to substitutional – role in this respect.
 Tribunals constituted under Articles 323A and 323B have the power to test
vires of subordinate legislation except vires of their parent statutes. All its
decisions would be subject to scrutiny before Division Bench of their
respective High Courts under Articles 226/227. No appeal would lie directly
to the Supreme Court under Article 136. The said direction would operative
prospectively.
 Appointment of Administrative members need not be stopped.
 Till a wholly independent body is set for the purpose of overseeing the
working of the Tribunals, all such Tribunals will be under single nodal
ministry whose members would be appropriately be a Ministry of Law.

Decision
All the matters are to be listed before a Division Bench to enable them to be
decided upon their individual facts in the light of the observations contained in the
judgment

11.Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010)
8 SCC 24

Facts of the Case

The Cochin Port Trust (2nd Respondent) entrusted the work of construction of
certain bridges and roads to the Afcons Infrastructure and Ors. (Appellants) under
an agreement dated 20.04.2001. The Afcons Infrastructure and Ors. Sub-contracted
a part of the said work to Cherian Verkay Construction (1st Respondent) under an
agreement dated 1.8.2001.

Cherian Verkay Construction filed a suit against the Afcons Infrastructure and Ors.
for recovery of Rs.210,70,881 which includes the amount due to the appellants
from the employer with interest at 18% per annum.

In the same suit an order of attachment was made on 15.09.2004 in regard to the
sum of Rs. 2.25 crores. Thereafter, In March 2005 ,Cherian Verkay Construction
filed an application under section 89 of CPC before the trial court praying that the
court may formulate the terms of settlement and refer the matter to arbitration.

Afcons infrastructure and Ors. filed a counter dated 24.10.2005 to the application
submitting that they were not agreeable for referring the matter to arbitration or
any of the other ADR processes under section 89 of the Code.

In the meanwhile, the High Court of Kerala by order dated 8.9.2005, allowed the
appeal filed by the appellants against the order of attachment and raised the
attachment granted by the trial court subject to certain conditions. While doing so,
the High Court also directed the trial court to consider and dispose of the
application filed by the first respondent under section 89 of the Code.

The trial court after hearing the parties allowed the said application under section
89 of the code. Then ,the Appellants filed the review petition against the order of
the trial court.

The High Court by the impugned order dated 11.10.2006 dismissed the revision
petition holding that the apparent tenor of section 89 of the Code permitted the
court, in appropriate cases, to refer even unwilling parties to arbitration. This order
was challenged in the Superme Court as an Appeal.

Anomaly in Afcons Infrastructure Case

Not a single provision in the legal world seems genuine or uncontroversial. Law is
a naturally evolving subject . It is based on the development of society and its
entities.According to my opinion, it doesnot confine our ideas and strength but
limits our scope.

The Supreme Court rightly pointed out various drafting errors in interpreting
section 89 of the code of civil procedure.
The first Anomaly is the mixing up of the definitions of `mediation' and `judicial
settlement' under clauses (c) and (d) of sub-section (2) of section 89 of the Code.

Clause (c) says that for judicial settlement, the court shall refer the same to a
suitable institution or person who shall be deemed to be a Lok Adalat.

Clause (d) provides that where the reference is to mediation , the court shall effect
a compromise between the parties by following such procedure as may be
prescribed.

It makes no sense to call a compromise effected by a court, as mediation, as is

done in clause (d). Nor does it make any sense to describe a reference made by a
court to a suitable institution or person for arriving at a settlement as judicial
settlement, as is done in clause (c).

Judicial settlement is a term in vogue in USA referring to a settlement of a civil

case with the help of a judge who is not assigned to adjudicate upon the dispute.

Mediation is also a well known term and it refers to a method of non-binding

dispute resolution with the assistance of a neutral third party who tries to help the
disputing parties to arrive at a negotiated settlement. It is also synonym of the term
`conciliation'.

When words are universally understood in a particular sense, and assigned a

particular meaning in common parlance, the definitions of those words in section
89 with interchanged meanings has led to confusion, complications and difficulties
in implementation. The mix-up of definitions of the terms judicial settlement and
mediation in Section 89 is apparently due to a clerical or typographical error in
drafting, resulting in the two words being interchanged in clauses (c) and (d) of
Section 89(2). If the word “mediation” in clause (d) and the words “judicial
settlement” in clause (c) are interchanged, we find that the said clauses make
perfect sense.

The second anomaly is that sub-section (1) of section 89 imports the final stage of
conciliation referred to in section 73(1) of the AC Act into the pre-ADR reference
stage under section 89 of the Code.
Sub-section (1) of section 89 requires the court to formulate the terms of settlement
and give them to the parties for their observation and then reformulate the terms of
a possible settlement and then refer the same for any one of the ADR processes. If
sub-section (1) of Section 89 is to be literally followed, every Trial Judge before
framing issues, is required to ascertain whether there exists any elements of
settlement which may be acceptable to the parties, formulate the terms of
settlement, give them to parties for observations and then reformulate the terms of
a possible settlement before referring it to arbitration, conciliation, judicial
settlement, Lok Adalat or mediation. There is nothing that is left to be done by the
alternative dispute resolution forum. If all these have to be done by the trial court
before referring the parties to alternative dispute resolution processes, the court
itself may as well proceed to record the settlement as nothing more is required to
be done, as a Judge cannot do these unless he acts as a conciliator or mediator and
holds detailed discussions and negotiations running into hours.

Section 73 of Arbitration and Conciliation Act shows that formulation and

reformulation of terms of settlement is a process carried out at the final stage of a
conciliation process, when the settlement is being arrived at. What is required to be
done at the final stage of conciliation by a conciliator is borrowed lock, stock and
barrel into section 89 and the court is wrongly required to formulate the terms of
settlement and reformulate them at a stage prior to reference to an ADR process.
This becomes evident by a comparison of the wording of the two provisions.

The apex Court tried to make demarcation between the extent of ADR to dispute
and settlement . It was stated in Salem Advocate Bar Association v. Union of India
that If the reference is to be made to arbitration, the terms of settlement formulated
by the court will be of no use, as what is referred to arbitration is the dispute and
not the terms of settlement; and the Arbitrator will adjudicate upon the dispute and
give his decision by way of award.

If the reference is to conciliation/mediation/Lok Adalat, then drawing up the terms

of the settlement or reformulating them is the job of the conciliator or the mediator
or the Lok Adalat, after going through the entire process of conciliation/ mediation.
Thus, the terms of settlement drawn up by the court will be totally useless in any
subsequent ADR process. Why then the courts should be burdened with the
onerous and virtually impossible, but redundant, task of formulating terms of
settlement at pre-reference stage?
It will not be possible for a court to formulate the terms of the settlement, unless
the judge discusses the matter in detail with both parties. The court formulating the
terms of settlement merely on the basis of pleadings is neither feasible nor
possible. The requirement that the court should formulate the terms of settlement is
therefore a great hindrance to courts in implementing section 89 of the Code.

In Salem Bar Association case, it was stated that the court is only required to
formulate a ‘summary of disputes’ and not ‘terms of settlement'. Interpretation of
any statute is based on the Principle of Statutory Interpretation. This principle
applies when there is any ambiguity in understanding the provisions of the statute.
Where the words of the statute are clear and unambiguous, the provision should be
given its plain and normal meaning, without adding or rejecting any words and
‘when a procedure is prescribed by the Legislature, it is not for the court to
substitute a different one according to its notion of justice, when the Legislature
has spoken, the judges cannot afford to be wiser’.

Issues Discussed
Keeping in view the contentions of both the parties, The apex court formulated two
issues which were later on discussed in this particular case:

1.Procedure to be followed by a court in implementing section 89 and Order

10 Rule 1A of the Code.
All over the country, the courts have been referring cases under section 89 to
mediation by assuming and understanding `mediation' to mean a dispute resolution
process by negotiated settlement with the assistance of a neutral third party.
Judicial settlement is understood as referring to a compromise entered by the
parties with the assistance of the court adjudicating the matter, or another Judge to
whom the court had referred the dispute

Section 89 has to be read with Rule 1-A of Order 10 which requires the court to
direct the parties to opt for any of the five modes of alternative dispute resolution
processes and on their option refer the matter. The said rule does not require the
court to either formulate the terms of settlement or make available such terms of
settlement to the parties to reformulate the terms of possible settlement after
receiving the observations of the parties. Therefore the only practical way of
reading Section 89 and Order 10, Rule 1-A is that after the pleadings are complete
and after seeking admission/denials wherever required, and before framing issues,
the court will have recourse to section 89 of the Code. Such recourse requires the
court to consider and record the nature of the dispute, inform the parties about the
five options available and take note of their preferences and then refer them to one
of the alternative dispute resolution processes.

It has to be concluded that proper interpretation of section 89 of the Code requires

two changes from a plain and literal reading of the section.

Firstly, it is not necessary for the court, before referring the parties to an ADR
process to formulate or re-formulate the terms of a possible settlement. It is
sufficient if the court merely describes the nature of dispute (in a sentence or two)
and makes the reference.

Secondly, the definitions of `judicial settlement' and `mediation' in clauses (c) and
(d) of section 89(2) shall have to be interchanged to correct the draftsman's error.

Clauses (c) and (d) of section 89(2) of the Code will read as under when the two
terms are interchanged (c) for mediation the court shall refer the same to a suitable
institution or person and such institution or person shall be deemed to be a Lok
Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of
1987) shall apply as if the dispute were referred to a Lok Adalat under the
provisions of that Act; (d) for judicial settlement, the court shall effect a
compromise between the parties and shall follow such procedure as may be
prescribed.

The Supreme Court declared that the above changes made by interpretative process
shall remain in force till the legislature corrects the mistakes, so that section 89 is
not rendered meaningless and infructuous.

2.Consent of all parties to the suit is necessary for reference to arbitration under
section 89 of the Code.

The main question discussed by the Supreme Court in this particular case was
whether reference to ADR process is mandatory.

The Court considered the interpretation made in the Salem Bar Association Case
which considered the aspect of advert conflict between the language of section 89
and Order 10 Rule 1-A of the code.
However after analyzing the fact, the Supreme Court clarified the legal
position more aptly by stating that:
‘Section 89 starts with the words “where it appears to the court that there exist
elements of a settlement”. This clearly shows that cases which are not suited for
ADR process should not be referred under Section 89 of the Code. The court has to
form an opinion that a case is one that is capable of being referred to and settled
through ADR process. Having regard to the tenor of the provisions of Rule 1-A of
Order 10 of the Code, the civil court should invariably refer cases to ADR process.
Only in certain recognized excluded categories of cases it may choose not to refer
to an ADR process. Where the case is unsuited for reference to any of the ADR
processes, the court will have to briefly record the reasons for not resorting to any
of the settlement procedures prescribed under Section 89 of the Code. Therefore,
having a hearing after completion of pleadings, to consider recourse to ADR
process under Section 89 of the Code, is mandatory. But actual reference to an
ADR process in all cases is not mandatory. Where the case falls under an excluded
category, there need not be reference to ADR process. In all other cases reference
to ADR process is a must’.

Though , The Superme Court accepted that in most of the cases references to ADR
process is must but it also mentioned the excluded category which are not to be
referred for ADR Process.

Those are:
· Representative suits under Order 1 Rule 8 CPC which involve public interest or
interest of numerous persons who are not parties before the court. (In fact, even a
compromise in such a suit is a difficult process requiring notice to the persons
interested in the suit, before its acceptance).

· Disputes relating to election to public offices (as contrasted from disputes

between two groups trying to get control over the management of societies, clubs,
association, etc.)

· Cases involving grant of authority by the section after enquiry, as for example,
suits or grant of probate or letters of administration.

· Cases involving serious and specific allegations of fraud, fabrication of

documents, forgery, impersonation, coercion etc.
· Cases requiring protection of sections, as for example, claims against minors,
deities and mentally challenged and suits for declaration of title against the
Government.

· Cases involving prosecution for criminal offences.”

The Supreme Court also stated that all the other suits and cases of civil nature
which falls under the following categories ,whether pending in civil courts or any
tribunals, can be referred for ADR Process.

· All cases relating to trade, commerce and contracts;

· All cases arising from strained relationship, such as matrimonial cases;

· All cases where there is a need for continuation of the pre-existing relationship,
such as disputes between neighbour and members of societies;

· All cases relating to tortuous liability, including motor accident claims; and

· All consumer disputes.

The Supreme Court endeavoured to resolve the conflict under section 89 of the
code and hence made a demarcation as to which cases can be brought under
‘suitable’ and ‘unsuitable’ categories for referring ADR processes.

Exercising Judicial Procedure under Section 89 of the CPC

Sometime, it becomes difficult as to when can we exercise ADR process in
continuation to the Judicial Procedure. However, The court have summarized the
procedure to be adopted by the court under section 89 of the code.

· When the pleadings are complete, before framing issues, the court shall fix a
preliminary hearing for appearance of parties. The court should acquaint itself with
the facts of the case and the nature of the dispute between the parties.

· The court should first consider whether the case falls under any of the category of
the cases which are required to be tried by courts and not fit to be referred to any
ADR processes. If it finds the case falls under any excluded category, it should
record a brief order referring to the nature of the case and why it is not fit for
reference to ADR processes. It will then proceed with the framing of issues and
trial.

· In other cases (that is, in cases which can be referred to ADR processes) the court
should explain the choice of five ADR processes to the parties to enable them to
exercise their option.

· The court should first ascertain whether the parties are willing for arbitration. The
court should inform the parties that arbitration is an adjudicatory process by a
chosen private forum and reference to arbitration will permanently take the suit
outside the ambit of the court. The parties should also be informed that the cost of
arbitration will have to be borne by them. Only if both parties agree for arbitration,
and also agree upon the arbitrator, the matter should be referred to arbitration.

· If the parties are not agreeable for arbitration, the court should ascertain whether
the parties are agreeable for reference to conciliation which will be governed by
the provisions of the AC Act. If all the parties agree for reference to conciliation
and agree upon the conciliator/s, the court can refer the matter to conciliation in
accordance with section 64 of the AC Act.

· If parties are not agreeable for arbitration and conciliation, which is likely to
happen in most of the cases for want of consensus, the court should, keeping in
view the preferences/options of parties, refer the matter to any one of the other
three other ADR processes :

(a) Lok Adalat;

(b) mediation by a neutral third party facilitator or mediator; and
(c) a judicial settlement, where a Judge assists the parties to arrive at a settlement.

· If the case is simple which may be completed in a single sitting, or cases relating
to a matter where the legal principles are clearly settled and there is no personal
animosity between the parties (as in the case of motor accident claims), the court
may refer the matter to Lok Adalat. In case where the questions are complicated or
cases which may require several rounds of negotiations, the court may refer the
matter to mediation. Where the facility of mediation is not available or where the
parties opt for the guidance of a Judge to arrive at a settlement, the court may refer
the matter to another Judge for attempting settlement.
· If the reference to the ADR process fails, on receipt of the Report of the ADR
Forum, the court shall proceed with hearing of the suit. If there is a settlement, the
court shall examine the settlement and make a decree in terms of it, keeping the
principles of Order 23 Rule 3 of the Code in mind.

· If the settlement includes disputes which are not the subject matter of the suit, the
court may direct that the same will be governed by Section 74 of the AC Act (if it
is a Conciliation Settlement) or Section 21 of the Legal Services Authorities Act,
1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok
Adalat). This will be necessary as many settlement agreements deal with not only
the disputes which are the subject matter of the suit or proceeding in which the
reference is made, but also other disputes which are not the subject matter of the
suit.

· If any term of the settlement is ex facie illegal or unforceable, the court should
draw the attention of parties thereto to avoid further litigations and disputes about
executability.

Judgment
In this particular case, The Supreme Court relied upon the judgment of Sukanya
Holdings Case and held that to contend for a reference to arbitration under section
89 of the Code, consent of parties is not required. The High Court has assumed that
section 89 enables the civil court to refer a case to arbitration even in the absence
of an arbitration agreement. Sukanya Holdings does not lay down any such
proposition. In that decision, this Court was considering the question as to whether
an application under section 8 of the AC Act could be maintained even where a
part of the subject matter of the suit was not covered by an arbitration agreement.
The only observations in the decision relating to Section 89 are as under:

Reliance was placed on Section 89 CPC in support of the argument that the matter
should have been referred to arbitration.The Division Bench held that Section 89
CPC cannot be resorted to for interpreting Section 8 of the Act as it stands on a
different footing and it would be applicable even in cases where there is no
arbitration agreement for referring the dispute for arbitration. Further, for that
purpose, the court has to apply its mind to the condition contemplated under
Section 89 CPC and even if application under Section 8 of the Act is rejected, the
court is required to follow the procedure prescribed under the said section.
The Court drew out inference that even in the absence of Arbitration agreement,
Parties can go for ADR process through Mutual Consent and Finally the Supreme
court enlightened in this matter by delivering landmark judgment stating that:

1. The trial court did not adopt the proper procedure while enforcing Section 89 of
the Code. Failure to invoke Section 89 suo moto after completion of pleadings and
considering it only after an application under Section 89 was filed, is erroneous.

2. A civil court exercising power under Section 89 of the Code cannot refer a suit
to arbitration unless all the parties to the suit agree for such reference.

Conclusion
"Discourage litigation. Persuade your neighbours to compromise wherever you
can. Point out to them how the nominal winner is often a real loser - in fees,
expenses, and waste of time. As a peacemaker, the lawyer has a superior
opportunity of being a good man. There will still be business enough." ----
Abraham Lincoln
12. 2011, in a judgment delivered by the Bombay High Court on a public
interest litigation (PIL) was filed by Lawyer's Collective, a non-profit
organization
13.PIL filed byA.K. Balaji, permitted foreign lawyers to practice in India on a "fly
in and fly out 155
India had signed the WTO Treaty in the 1990s leading to economic
liberalization, it is also expected to liberalize the legal services sector under the
GATS (General Agreement on Trade and Services) and services negotiations
under various free trade agreements/ economic partnership agreements.

14.Patna High Court case, Ms. Hazra . In the Patna High Court case, Ms. Hazra,
the petitioner, secured a B.L. degree from Calcutta University. 165

15.New Delhi: The Supreme Court on Tuesday held that foreign law firms and
lawyers cannot practise in the country, even as it allowed “casual visits" by
foreign lawyers on a “fly in and fly out" basis for rendering legal advice to
clients in India.
16.In the process, a bench comprising justices Adarsh Kumar Goel and U.U. Lalit
modified a Madras high court order permitting foreign lawyers and law firms to
come to India on a “fly in and fly out" basis for rendering legal services here on
offshore laws and diverse international legal issues.
17.“We hold that the expression ‘fly in and fly out’ will only cover a casual visit
not amounting to ‘practice’. In case of a dispute (over) whether a foreign lawyer
was limiting himself to ‘fly in and fly out’ on (a) casual basis for the purpose of
giving legal advice to clients in India regarding foreign law or their own system
of law and on diverse international legal issues or whether in substance he was
doing practice which is prohibited can be determined by the Bar Council of
India (BCI)," the bench ruled.
The Hon'ble Supreme Court of India (Supreme Court) pronounced a judgment
restricting foreign law firms/lawyers from setting up offices in India and has only
allowed them to come to India on temporary basis for advise on foreign law only
and for participation in international commercial arbitrations in India. Further,
restrictions have been imposed on BPO's so that they do not venture in to practice
of law in any manner.

Background

 Under the Advocates Act 1961 (Act), a foreigner is not entitled to practice
law in view of the restrictions contained under the said Act. However, under
the guise of different entities foreign lawyers were conducting seminars and
conferences etc in India. Foreign law firms were also practicing the
profession of law in India in violation of the Act. Writ petitions were filed
before the Hon'ble Madras High Court (ie, AK Balaji vs. Government of
India (Madras HC Judgment)) and Hon'ble Bombay High Court
(ie, Lawyers Collective vs. Bar Council of India (Bombay HC Judgment)),
seeking restrictions on such practices.
 The Supreme Court, in Bar Council of India vs. AK Balaji & Ors, passed a
landmark judgment dated 13 March 2018, which has put to rest some of the
major issues concerning the entry of foreign lawyers and law firms in India.

The key issue was whether foreign lawyers and law firms are permitted to practice
in India.

Madras HC judgment

 The main issue arising in the Madras HC Judgement was whether foreign
lawyers and law firms can practice law in India in case of litigation and
commercial transactions.
 The writ petition was filed by Mr AK Balaji, Advocate, seeking directions
restricting the entry of foreign lawyers and law firms in India. The Madras
High Court held that:

o There was no bar on foreign lawyers and law firms from taking part in
negotiations, settling of documents and conducting arbitrations in
India.
o There was no bar on foreign lawyers and law firms providing
consultancy/support services as the same cannot be treated as practice
of law.
o There was no bar on foreign lawyers and law firms to participate in
international commercial arbitration in India. It was observed that
foreign contracting parties are entitled to lawyers from their own
country.
 o Foreign lawyers and law firms can "fly in and fly out" of India for
advising their clients in India on foreign law and there is no bar on the
same.
o It was also observed that several accountancy and management firms
are employing law graduates who are rendering legal services which
is contrary to the Act and, and held that in case any activity is carried
out against the provisions of the Act, Bar Council of India will be
entitled to take appropriate action.

Bombay HC judgment

 The main issue arising in the Bombay HC Judgment was whether foreign
law firms can open liaison offices in India to carry on the practice in non-
litigious matters without being enrolled as Advocates under the Act.
 The Bombay High Court held that,

o The phrase "to practice profession of law" used in Section 29 of the
Act is wide enough to cover litigious as well as non-litigious practice.
As a result, foreign lawyers and law firms were bound to follow
provisions of the Act.
o The Reserve Bank of India was not justified in granting permission to
foreign law firms to open liaison offices in India.

Supreme Court judgment

 The Hon'ble Supreme Court held that the phrase "practice of profession"
includes both litigation practice and non-litigation practice. The
understanding of "practice of profession" has thus been given a wider
meaning to include provision of advisory services, legal opinions etc.
 On the issue whether practice by foreign lawyers and law firms is
permissible without fulfilling the requirements of the Act and Bar Council of
India Rules, the Hon'ble Supreme Court held that the regulatory framework
for conduct of advocates applies to non-litigation practice. It was further
held that the prohibitions as applicable under the Act are applicable to
foreign lawyers and law firms also.
 On the issue whether there is a bar on foreign lawyers and law firms to visit
India on a "fly in and fly out" basis for giving legal advice regarding foreign
law, the Hon'ble Supreme Court held a casual or temporary visit for giving
advice will not be covered under "practice" and the same is permissible. On
 the issue whether a particular visit will be treated as 'casual' or 'regular' will
be decided on a case to case basis.

The Hon'ble Supreme Court has subjected the foreign law firms/lawyers to
regulatory mechanism in India and suggested the Bar Council of India or Union of
India to frame appropriate rules in this regard.

The Hon'ble Supreme Court also clarified that the Act deals with companies and
firms in addition to individuals. This is the first instance wherein law firms or
entities engaged in the legal sector were recognized, which were earlier not
recognised by the Bar Council of India.

 On the issue of foreign law firms/lawyers conducting arbitration in

international commercial arbitration, the Hon'ble Supreme Court also held
there is no absolute bar and the same would be subject to the rules and
regulations of the concerned arbitration institution or the provisions of
Section 32 and 33 of the Act. It further held such foreign law firms/ lawyers
will however be subject to Code of Conduct as applicable to legal profession
in India.
 On the issue whether the business process outsourcing companies (BPOs)
providing integrated services being covered under the Act or the Bar Council
of India Rules, the Hon'ble Supreme Court held that there is no strict
violation, only if, in "pith and substance" the activities do not amount to
practice of law. Whether the services offered by a BPO amount to "practice
of law" under the Act will be decided on a case-to-case basis.

Comment

 The judgment by the Hon'ble Supreme Court is a landmark judgment on the

issue of entry of foreign lawyers and law firms in India;
 It is interesting to note the observations of Madras High Court which has
been noted by the Supreme Court that foreign law firms/lawyers have
accepted the position that there is express prohibition for them to practice
Indian law.
 The Hon'ble Supreme Court has clearly held that foreign law firms/lawyers
cannot practice profession of law in India either in the litigation or non-
litigation side, without compliance of relevant provisions of the Act and
concerned Rules and Regulations.
 The judgment has however carved out an exception in favour of foreign law
firms/ lawyers to advise on either of the issues of (a) foreign law (b) on their
 own system of law or (c) diverse international legal issues on a "fly in and
fly out" basis. This implies that the foreign law firms/lawyers cannot be
allowed to set up permanent set ups or liaison offices in India and can only
visit India on temporary or casual visits which have been held to be not
amounting to practice.
 The "fly in fly out" however has not been clearly defined in the judgment, as
to what could be the restrictions or parameters to identify whether a visit
would be 'regular' or 'casual' visit and the same has been left open to Bar
Council of India or Union of India to make rules and regulations in this
regard.
 The judgment is also a welcome step to allow foreign law firms/lawyers to
conduct Arbitration proceedings in India in an international commercial
arbitration which is the need of the hour and is also in line with growing
international trade and exchange of foreign goods and services in India.
 The judgment has also observed that there appears to be no restriction on
third parties (non-lawyers) funding of the litigation in India and getting
repaid depending on outcome of litigation. The judgment further clarifies
that such funding by a lawyer is however prohibited and the lawyer is also
prohibited to charge fee based on outcome of litigation.
 It is relevant to note the observation in the judgment that Advocates Act not
only deals with individuals but also with firms or companies. This seems to
be a welcome step by recognition of 'firms' and other entities practicing law
in India as earlier there was no such recognition of any entity apart from an
individual lawyer. It is now expected that the Bar Council of India will take
cue from this judgment and frame appropriate rules and regulations
governing such firms or companies engaged in the field of law.
 The judgment however cannot be called an exhaustive judgment as it lays
down basic parameters based on which the Bar Council of India or the
Union of India have been called upon to frame rules and regulations for
foreign law firms/lawyers.
 The judgment may not be strictly in line with the stand of the present
government which promoted entry of foreign law firms/lawyers in India,
which also envisaged setting up of their offices in India. The Bar Council of
India or Union of India now have to come up with rules and regulations at
the earliest so that there is more clarity to the foreign law firms/ lawyers.

18.Patna High Court case, Ms. Hazra

19.Tara Singh v. State (1951 AIR 441).
20.Magan Bhai Patel v Union of India,
21.Sheela barse
A petition was filed by a social worker seeking release of children below 16
years who were detained in jails – The directions were passed by the Supreme
Court stating that the petitioner should have an access to the information and
also, he should to permitted to visit the jails and other institutions that were
connected with the housing of the delinquent or destitute children – It was
further directed that the State Government should provide the necessary
assistance to the petitioner regarding the same – The Court had also clarified
that the information so collected by the petitioner should be placed before the
Court, otherwise, it should not be published c) A petition was filed for the
release of children below 16 years who were detained in jail – The direction
was issued by the Supreme Court to all the High Court and the district judges to
submit to it all the information of children in jails, existence of juvenile Courts,
etc., before a certain date – There was non-compliance of the said direction by
some Courts – Hence, further directions were issued to the High Court to ensure
the compliance d) The detention of children below the age of 16 years in jail
would be deprecated under Article 39(f) of the Constitution of India e) It was
adjudged that trial of children should be taken place in the juvenile Courts and
not in the criminal Courts – Also, the special cadre of magistrates for the
juvenile Courts must be recommended as per Section 5 of the Children Act,
1960 f) The case discussed the need for speedy trial of the children below the
age of 16 years under Section 5 of the Children Act, 1960 – It was adjudged
that where a complaint is filed or first information report (FIR) is lodged against
a child for an offence that is punishable with the imprisonment of not more than
seven years, the investigation should be completed within a period of three
months from the date of filing of complaint or lodging of the FIR - If the
investigation is not completed within the stipulated time, the case against the
child must be considered as closed g) It case of a trial of children below the age
of 16 years, the Uniform Children Act is recommended throughout India
instead of Children Acts at the State level and its earnest implementation h) It
was adjudged that every State Government must take necessary measures for
setting up the adequate number of Courts, appointing requisite number of
judges and providing them the necessary facilities – It is also necessary to set
up an institute or academy for the training of the judicial officers
22. Durga Prasad V. Baldeo (1880, 3All 221)
The plaintiff constructed some shops at the request of the District Collector in a
town. The constructed shops were given for rent for doing business to the
defendant. The defendant, apart from the rent, promised to give 5% commission
to the plaintiff on all articles sold through the shop in consideration of the huge
amount spent by the plaintiff in the construction of the building. The defendant
failed to pay the commission and the plaintiff initiated action to recover the
commission. The Court rejected the action of the plaintiff on the ground that the
construction of shop was done at the desire of the District Collector and not on
the desire of the defendant and hence there was no consideration to give
commission. Accordingly, there is no valid contract to pay commission to the
plaintiff.
Lalman Shukla V/S Gauri Dutt
Ryland V/s Fletcher