Month: February 2021

Development of Environmental Laws

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This article is written by Prachiti Shinde, a student of Thakur Ramanarayan College of law

Meaning of Environment

The complex of physical, chemical, and biotic factors that act upon an organism or an ecological community and ultimately determine its form and survival

Meaning of Environmental Legislation

Environmental legislation is the collection of law and regulations pertaining to air quality, water quality, the wilderness, endangered wildlife and other environmental factor.

Evolution of Policies and Lwas

Now we can see the timeline from emergence of environmental laws to the laws applicable till date.

Ancient India

It is assumed that environmental awareness existed even in the pre-Vedic Indian valley Civilization which augmented in northern India about 5,000 years ago. It is visible from the archaeological samples accumulated from Harappa and Mohenjo-Daro which were the eminent cities of the civilization. Their apprehension about hygiene and sanitation can be seen from their constructions of ventilated houses, numerous wells, bath rooms, public baths and covered underground drains. Protection and cleanliness of environment was the heart of Vedic (1500–500 BC) culture. In Arthashastra various punishments were designated for the crimes like cutting trees, detrition of forest and for slaughtering animals

Medieval India

For Mughals, Forest was a piece of land where they could hunt. Medieval history was reined by Muslim Rulers where there was inconsequential development of environmental legislation except during the rule of Mughal Emperor Akbar. No common man was allowed to hunt except for nobles or rulers. No prominent outcome was observed regarding environmental laws or policies as such as they were just engrossed in wars, religious proliferation and expanding empire. Apart from “royal trees” which was an exception unless upon a fee, there was no restriction on cutting of other trees, hunting animals, etc. Deforestation was the main issue 

British India

  1. Merchant Shipping Act of 1858 dealt with prevention of sea pollution by oil
  2. The Fisheries Act, 1897
  3. The Bengal Smoke Nuisance Act of 1905
  4. Bombay Smoke Nuisance Act of 1912
  5. Wild Birds and Animals Protection Act, 1912

After Independence

  1. In 1950, the Indian Constitution did not deal with the matters related to environment or prevention and control of pollution as such.
  2. It was the Stockholm Declaration of 1972 which enchanted the Indian Government to the boarder perspective of environmental protection.
  3. National Council for Environmental Policy and Planning was established in 1972 which was emerged as Ministry of Environment and Forests (MoEF) in 1985.
  4. The Wildlife (Protection) Act, 1972
  5. The Water (Prevention and Control of Pollution) Act, 1974
  6. The Forest (Conservation) Act, 1980
  7. The Air (Prevention and Control of Pollution) Act,1981
  8. The Environment (Protection) Act, 1986
  9. The Public Liability Insurance Act, 1991
  10. The Biological Diversity Act, 2002

The National Environment Policy of 2006

Objective:

  • Conserve and protect ecological resources.
  • Meticulous use of environmental resources.
  • Integration of concerns related to economic and social development.

Principle:

  • Empowerment of communities to care for their own environmental local communities, non-governmental organizations, community based organization the domain for people to express their concerns and take action to create sustainable societies
  • Co-management of resources with government
  • Economic efficiency

 MC Mehta & His Contribution

A lawyer and a committed environmentalist, he made an effort to protect India’s environment remarkably. He had set up legal activism as solid bedrock for environmental protection and evidently conveys that a single man can make a difference

Born on October 12, 1946 M C Mehta was from a trivial part of a village in district Rajouri in the State of Jammu & Kashmir (India). It was here that he engrafted his love for nature and commitment about protection of environment He is a post graduated in political science and law from Jammu University and started his practice in Jammu & Kashmir HC. He articulated his views against corruption and discrimination in Jammu region. In 1983, after migration from Delhi he became Supreme Court lawyer. In 1984, his interest developed in environmental litigation.

M.C. Mehta solo won numerous landmark judgments from India’s Supreme Court since 1984, including introducing lead-free gasoline to India and decreasing the industrial pollution polluting the Ganges and abrades of the Taj Mahal.

Mehta has accomplished ushering new environmental policies and Mehta has succeeded in getting new environmental policies initiated and has brought environmental protection into India’s constitutional structure. He has almost single-handedly obtained about 40 landmark judgments and plentiful orders from the Supreme Court against polluters, a record that is possibly imitable by any other environmental lawyer in the world. Mehta is at present associated with the M.C. Mehta Environmental Foundation, an NGO that offers training programs for would-be environmental attorneys and runs several environmental justice campaigns.

Some of the Remarkable Case Fought by MC Mehta

  1. M.C Mehta Vs Union of India (Taj Mahal Case)

Taj Mahal was greatly affected and was eroding by pollution caused by nearby industries 

Due to acid rains caused by highly toxic emission from these industries, treat was observed upon Taj Mahal as well as other historical testaments

M.C Mehta had filed a petition in Supreme Court in 1984 regarding this. In 1996, the Apex Court gave verdict in which the Court banned the use of coal and cake, and also encouraged the use of Compressed Natural Gas.

  1. M.C Mehta Vs Union of India (Ganga Pollution Case):

River Ganga is a very sacred one among the Hindus; it flows through India and Bangladesh but this holy river getting polluted due to leather factories and shop in the banks of the river in Kanpur. The river Ganga became so polluted that it could not be used for essential chores.

Writ petition was filled by M.C Mehta in SC to anticipate the nuisance caused which led to contamination of river. Kanpur Municipal Corporation received various directions from the apex court; and also this judgement would be valid for all other Municipalities which have dominion over areas in which River Ganga flows.

After this case, the Supreme Court directed the Central Government to schedule all the educational institutions to teach at least one hour in a week for the protection and improvement of our environment in the first ten classes.

  1. M.C Mehta Vs Union of India (Oleum Gas Leak Case):

Oleum Gas Leak case is also known as Shriram Gas Leak case. It was a notable case in the environmental field. Shriram Food and Fertilizers was a subordinate of a private company known as Delhi Cloth Mill Limited.

All the units are accumulated in a single complex, which is located near a dense populated area of Delhi. In short span of time, it created a nuisance for the surroundings of local people.

M.C Mehta filed a Public Interest Litigation for the speedy closure and relocation of the complex. On 4th December 1985 after a month of filing the petition, the Oleum had seeped in the complex & consequently several people were found to be injured.

In this case, the Supreme Court gave a landmark verdict and the rule of Absolute Liability lay down. The Court also introduced a new chapter to the Factories Act and made quite a few changes in environmental laws.

  1. M.C Mehta Vs Union of India (Vehicular Pollution Case):

Against vehicular effluence, the Supreme Court had delivered a landmark judgment in 1992.

Retired Judge of the Supreme Court was appointed along with three other members to recommend measures for the nationwide management of transport pollution.

Orders for providing Lead-free fuel within the country and for the use of gas and alternative mode of fuels to be used within the vehicles are passed and carried out. Lead-free fuel had been introduced within the four metropolitan cities from April 1995; all new cars registered from April 1995 forwards are fitted with chemical action convertors.

  1. M.C Mehta Vs Union of India (Ground Water Pollution case)

Five small chemical industries were operating at Rajasthan’s Bichhri without the adequate equipment. Toxic discharges from these industries found passageway in the groundwater and on wall which affected 14 nearby villages.

M.C Mehta filed a petition on Supreme Court, and finally after 5 long years fight in Court, a verdict was declared on March 1996. This resulted in closure of the factories.

Loopholes in Current Environment Laws

Prominently, the government has passed various legislations to restrain the detoriation caused to the environment such as the Environmental Protection Act, 1986, Forest Conservation Act, 1980, The Wildlife (Protection) Act, 1972, Water Prevention and Control of Pollution Act, 1974, Biological Diversity Act, 2002, Public Liability Insurance Act 1889 and National Green Tribunal Act, 2010.

According to Article 48 (A) of the Indian Constitution, the state shall try to protect and improve the environment. It should also endeavour to safeguard forests and wildlife of the country.

According to Article 51(A) (g) of the Indian Constitution, every citizen of India has a fundamental duty to protect and improve the natural environment including forest, lakes, rivers, and wildlife and should have compassion for living creatures.

  • Due to excessive governmental interference and also there is no regulatory body looking after it, there is poor implementation of laws.
  • There is ineffective pollution control mechanism.
  • PCB’s don’t have legal right and their decisions seems like overruled by the government.
  • There is also a lack of funds to the Pollution Control Boards and they don’t even have proper infrastructure or laboratories.
  • Environmental Litigation is more costly compared to other disputes as it involves expert authentication and technical evidences

Suggestion

  • There is a need of establishment of separate regulatory body. The MoEF in 2009 had anticipated for a “National Environmental Protection Authority’ in its discussion paper which plays role of ‘monitoring, regulation and enforcement’ of environmental governance.
  • It is important that laws give environmental values to the society, and Courts and Tribunals should cease to carrying out policy functions and emphasize on constructing a strong environmental legislation in India.
  • The National Environmental Policy 2006 abbreviates that there is a requirement to adopt a strong civil liability mechanism which is established on the polluter pay principle instead of a criminal penalty mechanism.

CONCLUSION

I would like to conclude my article by acknowledging the efforts of our green advocate M.C Mehta for bringing awareness and change about the environment. He has been awarded he Ramon Magsaysay Award for Public Service and the Goldman Award.  He has been cited for “claiming for India’s present and future citizens their constitutional right to a clean and healthy environment” by the Magsaysay award jury. Still are many loopholes in environmental laws and policies.

It is our fundamental duty to protect our surrounding and bring awareness by educating people and imparting knowledge about the same.

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Call for Paper: Burnished Law Journal Volume 2 Issue 1

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About the journal-

Burnished Law Journal aims to provide a number of legal journal articles& practical update of law. We actively invite people to share his/her research on contemporary issues of law, so as to enable the growth and understanding of the aspect of law to the individual in the society the main aim of Burnished Law Journal, includes topic in socio-legal, socio-economic, or any other law related topic or social issues.

Theme:

It focus on any issue related to law, economics, Polity, society. We welcome everyone those who want to publish there article.

How to submit?

Academicians, practitioners, researchers, students, and others interested in the field may send original, unpublished papersto burnishedlawjournal@gmail.com

Deadline

For submission of full paper(s): March 10, 2021.

Submission guidelines 

Any students, Academicians, Lawyers, students pursuing LL.M. or Ph.D., and Educators .

Mode of Payment-7254849058 (GooglePay, PhonePe, PayTm)

Publication Fee

For Single Authored Research Work (when only 1Author is submitting a single work) : Rs. 500 for any Authors  

For Co-Authored Research Work (when 2 Authors are submitting a single work) : Rs. 700 for any Authors 

For Co-Authored Research Work (when 3 Authors are submitting a single work) : Rs. 1000 for Any Authors

Requirements

1.The manuscript shall be original work and unpublished.

2.The manuscript should be in MS Word format.

3.The body of the manuscript shall be in Times New Roman, font size 12, 1.5 line spacing. Footnotes should be in Times New Roman, size 10 single line spacing.

4. A uniform style of the citation must be strictly adhered to while submitting the paper.  

5. Co-authorship is permitted to a maximum of two authors.

6. Copyright over the published shall vest with Burnished Law Journal .

7. Full names of all the author(s) must be given.

Word Limit

The Burnished Law Journal  invites original, unpublished content from all academicians, authors, legal professionals and from students across the globe under the following categories-

  • Short Articles: (1000-2500words, including footnotes)
  • Long Articles: (2500-4000 words, including footnotes)
  • Book Reviews: (2000-4000 words, including footnotes)
  • Case Comments: (2000-3500 words, including footnotes)
  • Research Papers: (2000-6500 words, including footnotes)

Note : Abstract should be upto 250 words only.

Plagiarism Policy

All the submission submitted for the publication to Burnished Law Journal  must be plagiarism free. We may use any software to find out the plagiarism. But it is the duty of the contributors toassure the originality before the submission. [Note : Burnished Law Journal shall not be liable for any plagiarism or copyright issue.]

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Interactive Session on How to Write Resume, Cover Letter & Professional E- Mail by MyLawman: Register by 5 March 2021

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About MyLawman:

MyLawman is one of the fastest growing, one stop solution, Legal Community in India for Legal Resource sharing and an e-learning platform for students, professionals and academia in the field of Law, run by Legal professionals. MyLawman is a growing family of thousands of law students as members, volunteers and interns along with hundreds of law faculties on board. 
We at MyLawman, cater to differential needs of Law students and professionals across diverse divisions viz. Legal Blogs, Journal, Judiciary Preparation and e-learning. Under its Research & Innovation Division (rID), MyLawman rolls out multiple International certificate courses, summer schools and winter schools which are a fine blend of both professional and
academic knowledge so as to impart both theoretical as well as practical knowledge to our members.
MyLawman partners with Law Schools, Law Firms, Domain Experts (resource persons) and NGOs working in the field of Law to build and disseminate legal knowledge to learners/legal fraternity.

About the Interactive Session:

MyLawman, with its aim to serve the legal community, especially the law students of our society along with the different services, we provide through our website i.e. opportunities, job posts, law notes, legal articles, law blogs, know your law & different events and courses organized by MyLawman, also organizes interactive sessions cum training program
for our law students on monthly basis so as to help them increase and improve their personal and professional skills, which would definitely help them in their future.

Topic of the Session:

How to Write Resume, Cover Letter & Professional E-Mail?

Date & Time:

6th March 2021: 6PM onwards

About the Speaker:

Adv. Ankita Gaur is an advocate at Delhi Court, having experience of more than 2.5 years. She has completed her LLM in International Trade & Economics Law from Amity Law School, Noida and has completed her BA-LLB from Lloyd Law College, Greater Noida. She has worked under several domains like document reviewing, patent analysis, trademark domain, litigation management, legal education awareness etc. She has even worked with reputed organizations like Unitedlex, Balts Global Pvt. Ltd, Advocates Pedia Foundation, etc and is presently working as an Advisor & Event Coordinator, MyLawman. Prior to this, she has also worked with us as the Head Judiciary Preparation Cell, CAP & CSM.

Registration Fees:

  • Entry is free
  • For Certificates, pay Rs 149/-

For MyLawman Campus Ambassadors, its totally free of cost ( To Know More about our Campus Ambassador Program or to Apply, https://www.mylawman.co.in/p/campus-ambassador.html )

Last Date to Register: 

5th March 2021

To Register: https://docs.google.com/forms/d/e/1FAIpQLSfnGybJvBY9esMXFRAaJip2VlesCUt0KLUEe03qS1JGPJww1w/viewform?gxids=7628
Note: You all shall be added to a whatsApp group where further details and link for the same would be shared

Payment Details:

Paytm/ PhonePe/ Gpay/ UPI at 9472434013
For further query, Contact
Mr. Harshit Kiran

Phone/ Whats App: 9472434013
E- Mail: harshitmylawman@gmail.com

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2nd NATIONAL JUDGMENT WRITING COMPETITION, 2021: SCHOOL OF LEGAL STUDIES AND GOVERNANCE CAREER POINT UNIVERSITY HAMIRPUR (H.P) : Register by 22/02/2021.

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ABOUT THE UNIVERSITY

Located in the lap of nature, the Career Point University was established by Government of Himachal Pradesh Act No 12 of 2012 under Sec 2(f) of UGC Act 1956. The University is recognized by UGC and is a member of AIU. The courses run by the university are approved by UGC, HPPERC, HP Government, BCI and PCI. There are Five Schools and thirteen departments imparting education from undergraduate level upto doctoral level.

Career Point University follows the world’s best IIT-Education system to support every student to realize their potential with the experiential approach in the academics. Thousands of young students have already made Career Point University as their first choice for their higher education to give thrust to their career. University offers personal approach to address every student’s need. The University works with a mission to provide quality education and help students excel in all walks of life.

ABOUT SCHOOL OF LEGAL STUDIES AND GOVERNANCE

The School of Legal Studies and Governance was set up in 2014 with BALLB program. Later the School took a leap by starting LLM and PhD programs. Presently the School has one department and one division. The School of Legal Studies and Governance in committed to provide career oriented quality legal education to students. In a short span of five years, the School of Legal Studies and Governance has become a preferred destination for the students who wish to make a mark in law filed. The regular classroom teaching is supplemented by case studies and simulation exercises. The School derives its strength from qualified and experienced faculty which is complimented by a well equipped departmental library. Located in the rural area, imparting free legal aid forms an important component of teaching.

ABOUT THE JUDGMENT WRITING COMPETITION

School of Legal Studies and Governance, Career Point University Hamirpur (H.P) Organizing the 2nd Online Judgment Writing Competition, 2021.

The Judgment writing competition entails to capture the art of decision making in budding lawyers aspiring to join the reputed judicial services and to unfold the dynamic role of the Judges in relation to society.

The judgment writing competition involves a comprehensive approach towards law in terms of theory and implication of law. The legal arguments on facts and situation with legal precedents and reasoning pave way for judgment writing. This shall be an online event.

RULES AND REGULATIONS FOR 2nd NATIONAL JUDGMENT WRITING COMPETITION- 2021

Guidelines and essential information for the Online Judgment Writing Competition- 2021 are as under:

IMPORTANT DATES:

Last Date of Registration22 Feb 2021
Last Date for Queries regarding Rules of the Competition22 Feb 2021
Releasing of Individual Codes23 Feb 2021
Last Date for Submission of the Soft Copies28 Feb 2021
Results2 March 2021

Note: Kindly note that the timeline is tentative and subject to change.

ELIGIBILITY:

  • The submission is open to all Law Students registered in Graduate/Post Graduate Course in any Institution/ College/ University.
  • The students can register themselves as a team of 2 or may also seek single registration.
  • There is no restriction on the number of entries from any college or university.
  • The participants shall write a single opinion. Multiple opinions/dissenting opinions are not allowed.

FORMAT GUIDELINE:

  • Language- The language for writing the judgment shall be in English only.
  • Word limit – Maximum of 5000 words (including foot notes).
  • Main Text – Times New Roman, font size 12, double spacing, justified, with a margin of an inch on all sides.
  • Footnotes – Times New Roman, font size 10. Substantive footnotes are accepted.
  • Citation Mode – Any uniform method of citation is allowed.
  • Page numbers must be at the bottom center.

SUBMISSION PROCEDURE:

  • A cover page stating the name of the competition, the name of participant’s institution and the names of student author, with the signature of student author.
  • The Judgment Writing shall begin on the next page. The first page of Judgment must contain Team Code, Name of the Court, Title, Number of the Case, Date of Delivery of Judgment, Nature of the Case (Civil/Criminal/Writ).
  • Do not state any matter in the judgment (except the cover page) that might reveal your identity or of your institution.
  • All the Judgments must be saved and sent as PDF file. The title of the file must be in the following format CPUH_JWC_ TEAM CODE.
  • The participants who register for the event shall be provided with a Unique Registration Code which shall be used for all further communication and submission of the write-up.
  • The write-ups shall have no plagiarism and should be the original work of the participants.
  • The write-up must be submitted in both Microsoft Word and PDF format.
  • The write-up must be sending on Google form link. (The link will be shared on 23 Feb 2021 by E-Mail)

MARKING CRITERIA:

CriteriaMarks
Arrangement of Facts5 marks
Issues Addressed10 Marks
Knowledge and Use of Legal Principles20 Marks
Precedents Used5 Marks
Format and Language5 Marks
Style of Writing5 Marks
Total50 Marks

REGISTRATION LINK: 

https://docs.google.com/forms/d/e/1FAIpQLSdZ0WYiLEWmoexIIy8YdKZTvGlugiebtGHkAT-ZHrSDr54HWA/viewform?usp=pp_url

REGISTRATION FEE: 

  • Registration Fee: Rs.500 /- For Single Author (Non-Refundable)
  • Registration Fee: Rs.850 /- For Two Authors (Non-Refundable)

MODE OF PAYMENT & DETAILS:

The participation fee is payable by the participants through Online Payment (NEFT/IMPS) (Kindly keep the copy of transaction safely and mentioned the same with registration form)

  • Name of the Bank: Punjab National Bank
  • Bank Branch: Kharwar
  • Name of the Account Holder/ Name of Payee: Chairman Conferences, Career Point University, Hamirpur (HP)
  • Bank Account Number: 2993000101041956
  • IFS CODE: PUNB0299300

 PRIZES:

1st Prize: Certificate of Excellence+ Cash Prize

2nd Prize: Certificate of Excellence+ Cash Prize

DECISION: Decision of the jury shall be final and binding. Decision of the Organizing Committee shall be binding in interpretation of any rules or for any query or otherwise.

For any further information/clarification, kindly send an email to sanjeev.law@cpuh.edu.in or contact Mr. Himanshu 8988758951 Ms Venika 7876187241

Kindly visit the official brochure:

2and-NATIONAL-JUDGMENT-WRITING-COMPETITION-2020Download

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GMU-CIArB (INDIA) INTERNATIONAL MARITIME ARBITRATION COMPETITION, 2021: Register by March 22,2021

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About Gujarat Maritime University:

The establishment of Gujarat Maritime University (GMU) is an endeavor by the Gujarat Maritime Board to provide a fillip to this growth by bridging the knowledge gap within the industry. The prime objective of Gujarat Maritime University is to be a global center of excellence in maritime education, research and development, professional training and it aims to enhance and increase the human capital and capacity of the maritime industry both in India and across the globe.

About the Competition

GIMAC Committee of School of Maritime Law, Policy and Administration, GMU is holding its annual flagship event, GMU-CIArb (India) International Maritime Arbitration Competition (GIMAC) 2021. GMU International Maritime Arbitration Competition is aimed at nurturing and creating opportunities for the development of the skills of Arbitration in Maritime Law.

Eligibility:

  • Students duly enrolled and pursuing full time 5 years or 3 years undergraduate law course from India or from a foreign university with the law as a major, may apply to participate.
  • Students enrolled and pursuing post-graduate diploma or short-term certificate course in law are not eligible to apply.

Last date of registration:

Register by: March, 22, 2021.

Registration fees:

INR. 3000 (Three Thousand Only)

Kindly Visit the attachments below for all other important information.

GIMAC-RULES2021Download
MOOT-PROBLEM-GIMAC-04Feb21-2Download

Prize:

The prize money for the winners of GIMAC 2021 are:

  • Winning Team: Rs. One Lakh
  • Runner Up: Rs. Fifty Thousand
  • Best Speaker: Rs. Twenty Thousand
  • Best Researcher: Rs. Twenty Thousand
  • Best Memorial: Rs. Twenty Thousand.

Contact Information:

Regarding the rules of the competition or any other queries, send your queries at gimac@gmu.edu.in with the subject line “Competition Problem-Queries”. You can also contact the faculty Convener between 10 AM to 5 PM (IST)

Faculty Convener:

Mr. Abhay Singh Thakur(assistant Professor)

Email: abhay-singh@gmu.ac.in

Phone: +91-7044070150

Email id: gimac@gmu.ac.in

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Doctrine of Repugnancy

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This article is written by Indra Priyadarshini, a 3rd Year student of Alliance University, Bangalore. This article gives a brief introduction to the Doctrine of Repugnancy under Article 254 of the Indian Constitution

INTRODUCTION

Article 245 of the Constitution of India empowers the parliament to make laws for the whole of India, or a part thereof. It also allows the State Legislatures to make laws for the whole of the State territory, or a part thereof. The Constitution, under Article 246, divides the legislative powers between the Centre and the States in three lists- Union List, Concurrent List and State List. In a system where the legislative powers are divided there are higher chances for inconsistencies to arise between the Central laws and the State laws. Thus, Article 254 of the Constitution is applied to resolve the repugnancy that arises between a Central law and a State law. According to Article 254(1), if any provision of the State law is inconsistent or repugnant with a law that the Parliament is competent to make or to an already existing law with respect to any matter listed under the Concurrent List, then the parliamentary law or the existing law will be given preference over the State law. This means that the State law becomes void to the extent of repugnancy.

When Does Repugnancy Arise?

Repugnancy between a Central law and a State law arises only if both the laws are contradictory to each other and there is absolutely no means to reconcile the provisions. In the case of Bharat Hydro Power Corporation Limited v. State of Assam[1], the Supreme Court stated that every effort has to be made to reconcile the conflicting provisions in order to avoid repugnancy. Repugnancy has to be there in fact, it cannot be based on a mere possibility. It must be shown clearly that the State law is repugnant to the Central law. There would be no repugnancy in cases where the two provisions are related to different subject matters and do not encroach upon each other.

Repeal by implication cannot be done unless there is a prima facie repugnancy in the provisions. If two provisions are related to the same field and there is a possibility for both of them to operate without encroaching upon each other, then this doctrine is not attracted. In Chief Secratary to the Government, Chennai Tamilnadu v. Animal Welfare Board[2], the court stated that for a law to be considered as void, the inferior legislation must not only be inconsistent, but also irreconcilable with the superior legislation. Furthermore, there should be no possibility of the two legislations to be able to operate together. In the case of State of Maharashtra v. Bharat Shanti Lal Shah, the court held that there was no repugnancy between Sections 13 to 16 of the Maharashtra Control of Organised Crime Act, 1999 (State laws) and the provisions of the Telegraph Act, 1885, section 5(2) read with Telegraph Rules, 1951 (Central laws).[3]

M. Karunanidhi v. Union of India[4] is a landmark judgement on the doctrine of repugnancy. The constitutional bench of the Supreme Court stated that the following conditions have to be fulfilled in order to apply this doctrine:

  1. There must be a direct inconsistency between the Central enactment and the State enactment.
  2. Such inconsistency must be irreconcilable.
  3. The inconsistency between the two enactments must be of such nature that one enactment cannot be obeyed without disobeying the other.

In the case of, Government of Andhra Pradesh v. J.B. Educational Society[5], the Court stated that there must be sufficient efforts made in interpreting the Central and the State legislations in such a way that the conflicts do not arise or can be circumvented. But in cases where such interpretation is not possible, then the Parliamentary law will prevail.

Article 254(2)

Article 254(2) is an exception to the general rule laid down in Article 254(1). It deals with situations where the President’s assent is obtained for a State legislation and so it prevails in that State. In Hoechst Pharma ltd. v. State of Bihar[6], The effect of Article 254(2) was discussed. The court observed that the President’s assent for a State legislation, which is inconsistent with the Central legislation on a matter enlisted under the Concurrent List, is important as it results in the State law to prevail in that particular State and thus having an overriding effect on the Central law in that State only. This article is applicable only if the following two conditions are satisfied:

  1. There must be a Central law on the same matter occupying the same field under the Concurrent List to which the State law relates.
  2. The State law must be inconsistent or repugnant to the Central law.

Therefore, Article 254(2) will not operate if there is no Central law with respect to the matter under the Concurrent List to which the State law relates. In such situations, the State laws prevail proprio vigore. But Article 254(2) is subject to the proviso which states that the Parliament is empowered to make a legislation which can override even such State legislations. When the State seeks the President’s assent under this article for a State legislation for the sole reason that it is repugnant to a Central legislation, then such State legislation will not be protected.

CONCLUSION

The doctrine of repugnancy renders the State law void to the extent of repugnancy. The State laws are eclipsed as long as there are Central laws on the same subject-matter. Only in cases where the Central law is repealed, the State law will revive. Article 254 shows the unitary and federal features of the Indian Constitution. Therefore, this doctrine is essential for the Centre-State relations in the country.

[1] (2004) 2 SCC 553 : AIR 2004 SC 3173.

[2] (2017) 2 SCC 144 : AIR 2016 SC 5522.

[3] (2008) 12 SCC 5 : (2008) 10 JT 77.

[4] 1979 AIR 898, 1979 SCR (3) 254.

[5] Civil Appeal Nos. 976-978 of 1999.

[6] 1983 AIR 1019, 1983 SCR (3) 130.

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JOB OPPORTUNITY: Legal Counsel at Tata Communications, Delhi: Apply Now!

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ABOUT TATA COMMUNICATIONS:

Tata Communications Limited telecommunications company is looing for legal counsel in Delhi and Mumbai.

JOB DESCRIPTION:

  • Selected Candidates will be a part of the Legal Team of Tata Communications
  • Work on commercial, procurement real estate matters.
  • Support business and user teams in review, drafting, and negotiating legal documentation.
  • Render contracts related support to the litigation, compliance, and regulatory teams.
  • Support general corporate and administrative activities.

QUALIFICATIONS:

  • Excellent Academic Background and Degree of Law from the University
  • Minimum Experience of 8 to 10 Years in Corporate Commercial Law.

REQUIRED SKILLS:

  • Experience in contract management in Telecom or IT sector
  • Good Negotiation and Communication Skills
  • Good Time Management Skills
  • Proficient in Ms office

LOCATIONS:

Mumbai or Delhi

Job Segment: Telecom, Telecommunications, Law, Compliance, Procurement, Technology, Legal, Operations

For more information visit:

https://jobs.tatacommunications.com/job/New-Delhi-Legal-Counsel-Legal-14001/710003700/

TO APPLY:

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IDIA UP Chapter 2nd National Essay Writing Competition: Register by 25/02/2021.

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ABOUT US

IDIA is a non-profit organization which was founded by the late Dr. Shamnad Basheer.

For more information visit the official website: https://www.idialaw.org/

REGISTRATION

Last Date 25th Feb 2021

Click on the link to register:

https://docs.google.com/forms/d/e/1FAIpQLSdPR7cqFfVv156Au_Zf65KDZXdIcuAZlepVh4lFphjOnXJS9g/viewform

THEME OF THE ESSAY WRITING COMPETITION:

Criminal Law, Criminology, International Criminal Law

INCENTIVES:

  • Winner- Cash Prize of 1000 Rupees
  • Top 10 Entries- Certificate of Merit
  • Top 3 Entries- Certificate of Excellence and Publication of Essay at CCJA Website.
  • Certificate of Participation to all Participants.

DEADLINE FOR SUBMISSION

28TH Feb 2021

FEES FOR REGISTRATION

  • 150 Rupees for Single Author
  • 200 Rupees for Co-Authorship

Contact Information:

MAIL ID idialucknowfr@gmail.com

Saurav Kumar: +91-9546150571
Akanksha: +91-6396476980

Official Brochure:

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Phoenix Arc Private Ltd. vs Spade Financial Services & Ors.

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The Supreme Court had recently delivered its judgment in the case of Phoenix Arc Private Limited v Spade Financial Services & Ors. This judgment was headed by Justice DY Chandrachud. Further, the judgment was also divided into sections in order to facilitate better analysis.

A. The Appeals

There were 2 sets of appeals that were made in this case. Initially, the NCLT had held that AAA Landmark Pvt. Ltd. and Spade have to be excluded from the CoC which was formed in relation to the CIRP initiated against AKME Projects Limited. It was primarily done because of the fact that NCLT had held that the following entities cannot be held as financial creditors as they were related parties of the Corporate debtor and hence must be excluded from the CoC. NCLAT had reversed the decision that they were not the related parties to the Corporate Debtor but held that they can be considered as financial creditors.

B. CIRP for the Corporate Debtor

On April 2018 a CIRP was initiated against the Corporate Debtor. In which Spade, along with its subsidiary AAA had filed their claims against the Corporate Debtor. In the CoC, the IRP rejected the claim of Spade stating that its claim cannot be considered within the scope of financial debt under section 5(8) of the IBC as there was an absence of consideration for the time value of money. Further, the claim of AAA was also rejected on the ground that its claim of being considered as the financial creditor was filed after the expiry of the period stipulated for the filing of such claim.

C. Whether Spade and AAA are Financial Creditors of the Corporate Debtor

Under section 5(7) of the IBC, a person can be held as a financial creditor if a financial debt is owed to it. Further, under section 5(8), a financial debt will be disbursed against consideration for the time value of money. The court in Swiss Ribbons Pvt. Ltd. v UoI has defined these terms in its judgment. Further, reliance was also made on the case Pioneer Urban Lands and Infrastructure Ltd. vs UoI which defined the terms “disbursed” and “time value for money”. The court also considered the Insolvency Law Committee’s interpretation of “time value” to mean as compensation or the price paid for the length of time for which the money has been disbursed.

D. Whether Spade and AAA are related parties

In order to understand the relation of Spade and AAA with the Corporate Debtor, it was crucial for the court to understand the relation between Anil Nanda and Arun Anand. After submissions by the counsels of both the parties and the evidences submitted before the tribunals as well, the court came to the conclusion that the transactions between AAA and the Corporate Debtor were collusive in nature and AAA along with Spade were related parties to the Corporate Debtor.

E. Whether Spade and AAA can be excluded from the CoC

The court held in the present case that AAA and Spade were related parties within the meaning of section 5(24) of the IBC. Further, there also existed a long-standing relationship between Mr. Arun Anand and Mr. Anil Nanda. Hence, the transactions between AAA and Spade with the Corporate Debtor could be considered to be collusive in nature. Which further means that allowing the entities in the CoC would definitely have an effect over the other financial creditors.

The court held in its decision that:
  1. The decision of the NCLAT, in as much as it referred to Spade and AAA as financial creditors, is set aside.
  2. The decision of the NCLAT, in as much as it referred to Spade and AAA as related parties of the Corporate Debtor under Section 5(24), is affirmed.
  3. The decision of the NCLAT, in as much as it excluded Spade and AAA from the CoC in accordance with the first proviso of Section 21(2), is affirmed

Reported By – Tanuj Sharma

Allahabad HC on Jeevit Deh Daan

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The Allahabad High Court on 21st January i.e last week dismissed a plea which talks about live body donation i.e (Jeevit Deh Daan). The petitioner plea to legally allow live body donation of the human body and all his living organs and tissues.

The Petition

The plea further requested to allow doctors/hospitals/institutions to lawfully carry out the necessary medical procedure for Live Body Donation i.e Jeevit Deh Daan. The plea further states that he wants to help the extremely needy people by donating his living organs and tissues.

He also stated his rights according to Article 21, of the Constitution of India, to walk into an operation theatre of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals.

In reply to which court stated,
Section 9 of the Transplantation of Human Organs and Tissues Act, 1994, the court observed that this provision stipulates restrictions on removal and transplantation of human organs and tissues or both.

The court lastly said, “Since ample provisions have been made in the Act of 1994 as regard to removal, storage and transplantation of human organs and tissues for therapeutic purposes, we are not inclined to grant the relief as sought for by the petitioner in this petition being misconceived.”

Consequently, the petition failed and was dismissed.

Case title – Ranjan Srivastava v. Union of India [Public Interest Litigation (PIL) No. – 49 of 2021]

Reported By – Aishwarya Daftari