UPSC 2020/2021 : Law Optional Current Affairs : November 2019 Update : Part I


TRIO-UPDATES :

UPDATE 1 : AYODHYA VERDICT :




EVERYONE IS EQUAL: “The Constitution does not make a distinction between the faith and belief of one religion and another. All forms of belief, worship and prayer are equal,” Chief Justice Gogoi said, reading excerpts from the judgment for the Bench, also comprising Justices S.A. Bobde, D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer.


The Supreme Court, in its Ayodhya judgment, cautions the state and the citizen not to take law into their hands and forcibly convert the religious character of places of worship across the country.


The Constitution Bench, led by Chief Justice of India Ranjan Gogoi, delves deep into Parliament’s objective in enacting the Places of Worship (Special Provisions) Act, 1991. The Act prohibits the conversion of religious places of worship as it existed at the time of Independence.


UNANIMOUS DECISION : What is most welcome about the 1,045-page verdict of a Bench of five judges is its unanimity. For, it sends out a message that the judiciary has, with a single mind, ventured to give legal burial to a prolonged dispute that began as a minor litigation, expanded into a divisive political cause, and became a festering wound on the body-politic for years.


RESPONSE : The Hindu populace celebrated the order but it triggered a sense of dejection among the Muslim community of Faizabad-Ayodhya.


KEY TAKEAWAYS OF AYODHYA VERDICT : The court permitted the construction of a temple at the site where the Babri Masjid once stood, and asked the government to allot a “prominent and suitable” five-acre plot for Muslims to construct a mosque in Ayodhya

  • Within 3 months, centre should formulate a scheme and set up a trust to manage the property and construct a temple.

  • The Sunni Central Waqf Board should be given a five-acre plot, either by the Centre from within its acquired area, or by the Uttar Pradesh government “at a suitable, prominent place in Ayodhya”.


MUSLIMS WERE WRONGLY DEPRIVED : The Supreme Court has condemned the desecration and demolition of the Babri Masjid. A temple has now been allowed to be built where the 16th century mosque once stood.

  • The demolition of the 16th century Babri Masjid on December 6, 1992, was “an egregious violation of the rule of law” and “a calculated act of destroying a place of public worship”.

  • The court concluded that the Muslims were ousted from the 1,500 square yards of the mosque through acts of damage during communal riots in 1934, desecration in the intervening night of December 22-23 of 1949 when idols were place inside the mosque, and finally, the demolition of the mosque in 1992.

VERDICT BY SUPREME COURT ON AYODHYA DISPUTE : In allowing a temple to come up through a government-appointed trust at the disputed site in Ayodhya, the Supreme Court has apparently chosen a path most conducive to social harmony. That this is more of moral consolation by way of a political compromise and less of adjudication in recognition of their religious rights is obvious.

Can a secular state be ordered to facilitate the construction of a temple, which is an essential part of the Hindu belief? Does this not amount to a secular state fostering a particular religion?

BOMMAI JUDGMENT : Justice K. Chandru, former Madras High Court judge, referred to the nine-judge Bench judgment in the S.R. Bommai case of 1994 in this regard. “The Bommai decision clearly said the state should be divorced from religion,” he said.


The Bommai judgment said the concept of a secular state was essential in a democracy. “State is neither pro-particular religion nor anti-particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions,” it observed.


OPINION OF THE JURIST :


  • Eminent jurist Upendra Baxi, however, said there was no breach of constitutional secularism involved in the Centre being given the responsibility.

  • Agreeing with him, R. Venkata Rao, eminent constitutional expert and former Vice-Chancellor of National Law School India University, Bengaluru, said, “The inscription of the Supreme Court is yato dharma tato jaya [where there is dharma there is victory]. It is taken from the Bhagavad Gita. Now, it defies logic to say the Supreme Court is a religious institution.”



UPDATE 2 : KANTARU RAJEEVARU V INDIAN YOUNG LAWYERS ASSOCIATION : REOPENING RELIGION DEBATE





CONTENTION : In the case of kantaru rajeevaru, it was the contention of the petitioner that the individual right to worship in a temple cannot outweigh the rights of the section of the religious group to which one may belong, to manage its own affairs of religion.


MAJORITY HINTS TO RE-CONSIDER AS WHOLE : CJI Ranjan Gogoi, Justice A.M. Khanwilkar & Indu Malhotra held that in view of the conflict between the earlier pronouncements on the subject, it was "possible" that a larger bench would have to be constituted to adjudicate on these issues. The majority anticipates that similar basic questions on the conflict between individual freedom and constitutionally-protected religious beliefs may arise in other situations too. These related to:

1. Entry of Muslim Women into Dargahs/Mosques

2. Entry into Agyaris (fire temples) by Parsi women who are married to non-Parsis

3. Practice of female genital mutilation in the Dawoodi Bohra community


GENITAL MUTILATION CANNOT BE PART OF THIS QUESTION : It is shocking that the Bench includes the abhorrent practice of female genital mutilation in this genre. It is well-established that freedom of religion, under Article 25, is subject to public order, morality and health, and it may not be difficult for any court to test the validity of the practice against the restriction on grounds of a woman’s health, and this may not require an exalted panel of seven judges.


MINORITY( Justices Fali Nariman and D.Y. Chandrachud) WANTS TO RE-CONSIDER ONLY WITHIN THE GROUNDS FOR REVIEW PETITION: View of dissenting justices is that this petition under kantaru rajeevaru is to find out whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala. In keeping the petitions on Sabarimala pending further, the court has displayed a disquieting inability to stand by its previous transformative judgment. Further, it may lead to a repeat of the unsavoury incidents of last year when religious groups and political activists blocked and attacked women devotees.


POWER OF REVIEW UNDER ARTICLE 137 :

1. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845 : (1965) 1 SCR 933, 948 : (1965) 1 SCJ 377]


2. Article 137 of the Constitution confers an express power on the Supreme Court to review its own decisions. It can be exercised when the earlier judgment is likely to result in a miscarriage of justice on account of any manifest error that is clear on the face of its record. In other words, the court’s capacity to review its own orders is confined within narrow boundaries: it can neither rehear formerly concluded arguments nor can it reappreciate the evidence on record.


3. But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”: Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR 933]


CONCLUSION : Justices Fali Nariman and D.Y. Chandrachud, in their dissent, rightly call out such transgressions against the rule of law and, while rejecting the need for review, want all authorities to remember their constitutional duty to work in aid of the Supreme Court and the law laid down by it. An omnibus reconsideration of all issues related to religious freedom was not the way out of the serious issues posed by the Sabarimala judgment.



UPDATE 3 : CONCEPT OF BAILMENT AND VALET PARKING




INTRODUCTION : High-end hotels which offer valet parking cannot escape responsibility if a guest’s vehicle is stolen or damaged even if the parking slip contains a non-liability clause, the Supreme Court has held.


BAILMENT : In an arrangement of valet parking, once the customer hands over the keys of his car to the valet, the possession of the car is transferred from the customer to the hotel and thus, a 'relationship of bailment' is established.


  • Bailment refers to the transfer of personal property from one person to another either for safekeeping or for the other person to control or use temporarily.

  • “In a situation where the hotel actively undertakes to park the vehicle for the owner, keep it in safe custody and return it upon presentation of a parking slip in a manner such that the parking of the vehicle is beyond the control of the owner, a contract of bailment exists. Thus, the hotel would be liable as a bailee for returning the vehicle in the condition in which it was delivered,” a Bench of Justices Mohan M. Shantanagoudar and Ajay Rastogi observed in a recent judgment.

  • Once possession of the vehicle is handed to the hotel staff, there is an implied contractual obligation to return it in a safe condition upon the direction of the owner.


EXEMPTION CLAUSE DOES NOT MATTER : Under Indian law, the general rule has been that in a contract of bailment, if goods are lost or damaged while in the possession of the bailee (person who gets possession of goods), he will be liable. The burden of proof will be on the bailee to show that he took a reasonable degree of care in respect of the bailed goods.

“Even where there is a general or specific exemption clause, there remains a prima facie burden of proof on the hotel to explain that any loss or damage caused to the vehicles parked was not on account of its negligence or want of care per Sections 151 and 152 of the Contract Act. It is only after this burden of proof is discharged that the exemption clause can come into force. The burden of proving that such loss or damage was covered by the exemption clause will also be on the hotel,” the Supreme Court held.

Justice Shantanagoudar, who wrote the judgment, said the guest had handed over his car to the valet; so the management was bound to indemnify the loss under Sections 148 and 149 of the Contract Act, 1872.


“Thus, the Appellant-hotel cannot refute the existence of bailment by contending that its valet parking service was purely complimentary in nature and that the consumer had not paid for the same. In other words, the existence of a bailment relationship is clear.


“Given the existence of a bailment relationship, the failure of the Appellant to deliver the car to Respondent No. 2 (the car owner), raises a prima facie case of negligence against it,” the judge said, dismissing the appeal.


TO WHICH SCENARIO – IT DOES NOT APPLY :


  • The bench dealt with two scenarios where the custody or possession of the vehicle is purposefully handed over to the hotel (valet parking) and where a person is merely allowed to park his car in a parking space.

  • It said that the laws of bailment apply in the valet parking case while the parking facility case is only a licensor-licensee relationship where laws of bailment or the prima facie liability rule cannot be applied.


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