JUDICIAL ACTIVISM

The judiciary being the strongest pillar of democracy is the sole interpreter of the Constitution and thus works at solving any ambiguity arising out of the provisions of the Constitution and legislature of the Country. The Judiciary acts as a guardian of fundamental rights also decides the disputes arising between the federal authorities and the state authorities. But sometimes in order to protect the constitutional values and Fundamental rights through curtailment by arbitrary laws and actions of the legislature and executive judiciary uses the power of ‘judicial activism’.

Judicial activism in layman terms refers to those judicial rulings that are based on the personal opinion of the judges and not on the strict interpretation of law. This phenomenon is neither defined in the constitution nor under any statue. In the early years of its existence the Supreme Court was conservative in its approach and relied on strict interpretation of the law. In the 1960s judiciary changed its approach and impounded the use of liberal interpretation in judicial rulings. The Supreme Court in Golakh Nath v. State of Punjab through judicial activism held that the fundamental rights could not be amended in any case under the article 368 of the Constitution of India and thus laid down an activist approach although this judgment was overruled by Keshvanada Bharti vs. Union of India and the concept of basic structure was introduced.

 Justice P.N Bhagwati the former Chief justice of India is considered as the pioneer of judicial activism in India and had introduced the concept of PIL in India in the case of Hussainara Khatoon vs. Union of India made a famous ruling that there is no need to prove locus standi in order to approach the court on the issue of fundamental rights. InA.K. Gopalan v. State of Madras held that Right to life cannot be taken away by any law without following the due process which was deliberately omitted at the time when the Indian Constitution was being framed. In Francis Coralie vs. Union Territory of Delhi the SC held that Right to life also includes the right to live with human dignity with all basic requirements to sustain life.

Can ‘limitation’ be decided as a preliminary issue in civil cases? Opinions of various courts in consonance with order 7 rule 11 of CPC &Sect. 5 of Limitation act

Framing of issues is one of the most essential and significant part of a Civil trial. If a correct and accurate issue is framed then the court will come to the correct decision in the shortest possible time and inaccurate issues will lead to gross injustice, delay and waste of the Court’s time in deciding the matter was held by Hon’ble —- Court in case of Siddhi Chunilal Vs. Suresh Gopkishan (2009(6) BCR 857.

On the basis of Plaint, written statementsAffidavits by parties or pleader Pleadings and interrogatories in the suit Documents produced by either party the court is tasked with the job of forming the preliminary issues, these issues are a primary question that needs to be settled before moving into the core of the case. These issues can either be a question of law or a question of fact or both. Under order, 14 Rule 2(2) question regarding the jurisdiction can be treated as a preliminary question because the court cannot try the suit without having a jurisdiction and bar to the suit due any law being in force.

Thus the interpretation of the term ‘preliminary issue’ has always been dependent on the content and cause of case. There has always been a dispute w.r.t to maintenance of a preliminary issue pertaining to the law of limitation and time barred suit. The issue of limitation is a mixed question of law and fact which varies from case to case. The Supreme Court in the landmark judgment of Kamalakar Eknath Salunkhe vs. Baburav Vishnu Javalkar and Ors reported in ————– has held that the plea of limitation can be decided as a preliminary issue Under Section 9A of the Code of Civil Procedure, the court stated that the expression “jurisdiction” in Section 9A is to be used in a wider sense if no restriction is imposed on it by law. The question of jurisdiction, sensu stricto, has to be considered with reference to the value, place and nature of the subject matter and thus limitation can be considered as a preliminary issue. In the case of Ramesh B. Desai and Others vs Bipin Vadilal Mehta & Others on 11 July, 2006stated that the limitation cannot be inducted as a preliminary issue if it is a question of fact.

RIGHT OF WIFE TO CLAIM MAINTENANCE FROM FAMILY MEMBERS OF THE HUSBAND IN EXCEPTIONAL CASES

The concept of maintenance under family law was introduced in order to support the spouse who is financially incapable to maintain himself or herself. The ultimate objective of providing maintenance is to enable the financially dependent spouse to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together than maintenance should be given in order to live a life as when they lived together.

As Indian society is patriarchal in nature, here wives are more dependent on husbands rather than husbands on their wives. Under section 24 of the Hindu Marriage act, 1955 the wife has right to claim maintenance from the husband and thus it is his legal duty to maintain his wife during his lifetime. The right ceases to exist only when the wife becomes unchaste or changes her religion. Thus the liability of husband to maintain his wife is a personal liability and thus cannot be shifted and transferred.

But under few exceptional circumstances the wife has a right to claim maintenance from her-in-laws. Under the section 19 of HAMA, 1956 a widow Hindu wife can claim maintenance from her father-in-law if she has no mean to maintain herself and if she’s not remarried.  She is also entitled to the share of her husband in the matrimonial house and thus can file the suit against father- in-Law and brother-in-Law for maintenance on the share of her husband’s property. In Balwant Kaur vs. Chanan Singh (2000) 6 SCC 310Ait was held that a widow who has no earnings of her own or other property if she has nothing to fall back upon for maintenance on the estate of her husband or father or mother or from the estate of her son or daughter, if any, then she can fall back upon the estate of her father-in-law.  Under the DV act a widow can also claim a right of residence and thus cannot be ousted by her in-laws.

But a woman cannot claim maintenance from her in-laws if her husband is alive as held in the case of Abdulrahim Abdulmiya Pirzada vs. The State of Gujarat. The court further stated that any right which the wife has is only during the subsistence of her marriage and during the lifetime of her husband is against the husband and thus can’t claim maintenance from her in-Law.

SEARCH AND SEIZURE UNDER INCOME TAX ACT, 1961

Search in layman terms refers to look, seek or to find something the presence of which is suspected. Seize means to take possession of goods, contrary to the wishes of the owner forcibly by the authorities. These activities are done through Income tax Department with an aim to find hidden, undisclosed income & wealth of taxpayers who have not disclosed their true financial status and through evasion. The power of search and seizure are also used to mitigate the generation of black money.

The Section 132 of the Income Taxact deals with the procedure of search and seizure.

Authorized Officer who can conduct search and SeizureWho can Authorize
Additional Director or Additional Commissioner or Joint Director, Joint Commissioner, Assistant Director, Deputy Director, Assistant Commissioner, Deputy Commissioner or Income tax officer.Assistant Director, Deputy Director, Assistant Commissioner, Deputy Commissioner or Income tax officerPrincipal Director General or Director General or Principal Director or Director or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or CommissionerAdditional Director or Additional Commissioner or Joint Director or Joint Commissioner (on the basis of authorization from above authority and being empowered by the Board)

Power of authorized officer while conduction search

  1. Enter and search any building, etc
  2. Break open the lock of any door, etc
  3. Authorized officer can require any person to facilitate them regarding search
  4. Seize any such books of account, other documents, money, bullion, jewellery or other valuable article
  5. Place marks of identification
  6. Make inventory or note on inventory of any such money, bullion, jewellery or other valuable article or thing.
  7. It can examine on oath any person in possession of such money, bullion, jewellery or any other item and can be used as evidence against him.

For the purpose of this act, Undisclosed Income or property refers to any money, bullion, jewellery or other valuable article or thing symbolizes either wholly or partly income or property which has not been disclosed or any sum found credited to the accounts of the taxpayers for which he offers no explanation will also be treated as an undisclosed income thus will be taxed accordingly.  Section 68-69D of the Income tax act talks about undisclosed credit, investments, expenditure received or incurred by the assesse and thus can be treated as income and hereby taxed. In  CIT vs. R.S. Rathore [1995] 212 ITR 390(Raj.)  It was held that the burden to explain the genuineness of the transaction lies on the assesse but he’s not required to prove the whole investment The Assessing Officer has to apply his mind in each and every individual entry when an explanation is offered by the assesse.

The authorized officer can’t seize bullion, jewellery or any other valuable item which is stock in trade of business and can only make note of it and it is also authorize to extend its jurisdiction if it has reason to believe it that it may be prejudicial to the revenue.

PROVISIONS UNDER CONSUMER PROTECTION ACT, 1986 TO CALL FOR EXPERT EVIDENCE

The Consumer Protection act, 1986 is a welfare legislation aimed at safeguaring the interest of the consumers. The act applies to all goods and services, excluding goods for resale or for commercial purpose and services rendered free of charge and under a contract for personal service. This act deals provides and protect right to safety, right to be informed, right to be heard, and right to choose, right to seek redressed and right to consumer education. The Consumer Redressal agencies or the Consumer Courts are the chief adjudication and dispute resolution bodies pertaining to consumer matters in India.

As per section 13 of the Consumer protection act, the district consumer forum although have the same power of the civil court under CPC, 1908 w.r.t summoning and attendance of witness, production of documents and calling of evidence of witness but the provisions related to Indian Evidence act are not applicable on this act, as held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & Ors (2009) 9 SCC 221 as the commission only has to comply with the with the principles of natural justice, and except under Section 13(4) of the 1986 Act.  The section 45 of Indian Evidence act is also not applicable but the Honorable SC inV Kishan Rao vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513held that the appointment of expert witness in consumer matters can be only on the discretion of the Fora (retired Judges of Supreme Court and High Courts heading the National Commission and State Commissions) only if they came to a conclusion that the case is intricate and complicated enough to require the expert opinion then only an expert can be called. The calling of the expert has to be made on the facts and circumstances and should not be based on straight jacket formulae. The duty of the Expert is to made understand the court the technical issues pertaining to the matter as understood by a common man.

Thus no application can be made by the parties to the case for the appointment of expert, it will be solely based on the discretion of the forum of judges for the appointment based on the facts and circumstances of the case in order to reach a conclusion is intricate and complicated enough.

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