Legal Circles dt. 01-10-2023

Dear Sir/s,

Please find attached hereto the weekly column, Legal Circles by Dr H C Upadhyay.

Regards,

Business Editor, NVS LEGAL CIRCLES DR. H.C UPADHYAY

* ARE PARTIES ' REALLY ' HONEST TO PEOPLE'S SENTIMENTS ?

Elections or no elections, most of the political parties and their 'front' or 'back' organisations are in the habit of 'fooling' their vote banks. Some in the name of ' minorities ' while others calling themselves as the 'saviours' of the majority are busy playing the shameless game, called politics!

Though such an inference may not be palatable to some ears, but unfortunately this is the reality. Considering the fact that most of the parties are either have a vote bank of a particular religion, caste or group, it is hard to find a party without such affiliation. Some would say that the leftist parties are truly 'secular' in their character, but a close look at their leadership composition would reveal their real face. Most of them have in fact, become the pocket burroughs of a high caste privileged few.

The Constitution of India, indeed, does not allow such parties to exist. Therefore, before registration of a political party, a solemn declaration to the effect that the proposed party will be truly 'secular' in character and shall not indulge or promote the hegemony of any vested interests. However, after the registration, all such solemn undertakings are given a convenient go by. Thus, the culture of hypocrisy has been in the sowing the seeds of political parties.

For a student of political science, it is not hard to find such examples of hypocrisy among parties since there are aplenty. Indeed, it is very difficult to find a party without nepotism and dominance of the corrupt or criminal elements. Obviously, such elements with the use of money and muscle power grab elective posts and subsequently, pay back the voters in most foul manner for having committed the Himalyan blunder of electing such unworthy elements!

Now as the general elections and many state assembly elections are round the corner, the claims and counter - claims of being the 'well- wishers ' of people or a section of people have become more pronounced. Some in the name of Hindus, some in the name of Muslims or Dalits while others in the name of farmers or Poor are busy trumpeting their 'commitment' to the targetted groups of people. These leaders wear convenient clothes to fool gullible voters. While some grow long beard and wear turban or a kind of clothes to befool Hindus, Muslims or Sikhs as the situation may demand, others undertake Yatras or pilgrimage to holy shrines, temples, mosques, gurudwara or graves of some saintly persons of the past. Clearly, these politicians quite often have no faith in the religion s they pretend. Unfortunately, people have developed a habit of being fooled again and again over the years since Independence by such 'actors' !

The solution to such a malice is not far to seek. Amendments to the Representation of People Act to the effect that all toll promises made in a party's manifesto shall become binding conditions between the respected party and its candidates on the one part; and electorate on the other. Any breach or anticipatory breach thereof will render the election of a party's candidates null and void.This would ensure the spirit of true democracy. Let the people have freedom of choice from the assortment of things offered by political parties and non-implementation of any such promise after getting elected to a House result into the unseating of an elected party candidate besides the imposition of hefty monetary fine. Such provisions become all the way more necessary when our Constitution does not provide for a mechanism to recall the elected persons after they get elected.

* SC APPLIES RES IPSA LOQUITUR IN A MEDICAL NEGLIGENCE CASE

In a significant judgment delivered on September 26, the Supreme Court affirmed the applicability of the principle of res ipsa loquitur in the context of medical negligence cases, emphasizing its applicability in cases where negligence is evident and shifts the burden of proof onto the hospital or medical practitioners. Res ipsa loquitur means "the thing speaks for itself”.

Applying this principle the court in a case titled, Ashish Kumar Chauhan (Retd) Vs. Commanding Officer and Others awarded Rs 1.5 crore compensation to an ex-Indian Air Force official who contracted HIV during a blood transfusion at a military hospital.

The court observed that “the condition in which the appellant found himself, was the direct consequence of the two hospital establishments and their breach of the standards of care, resulting in the transfusion of the HIV-positive infected blood into the appellant, which was the causative factor. The necessary foundational facts, to hold that the application of res ipsa loquitur was warranted, were proved in all detail. The respondents failed to discharge the onus that fell upon them, to establish that due care was in fact exercised and all necessary care standards, applicable at the time, were complied with.

The Court held both the Indian Army and the Indian Air Force jointly and severally liable for medical negligence.

The bench comprising Justice S .Ravindra Bhat and Justice Dipankar Datta delivered the judgement.

* ONUS ON TENANT TO PROVE THAT PREMISES ARE USED FOR MFG. ACTIVITIES.

Explaining the scope of Section 106 of Transfer Of Property Act the Supreme Court Bench comprising Justice Aniruddha Bose and Justice Vikram Nath, has held that in order to attract the application of Section 106 of the Transfer of Property Act, 1882, which requires 6 months’ notice for termination of lease, the burden is on the Tenant to prove that manufacturing activity was being carried on in the leased premises.

* KERALA HC NAMES A BABY OF WARRING COUPLE !

In an interesting case, the Kerala High Court invoked its parens patriae jurisdiction to select the name of a child, caught in a dispute between her estranged parents with respect to what her name should be.

The bench observed that attempting to resolve the dispute between the parents will cause inevitable delay and in the meanwhile, the absence of a name would not be conducive to the welfare or the best interests of the child.

"In the exercise of such a jurisdiction, the paramount consideration being the welfare of the child and not the rights of the parents, the Court has to perform the task of selecting a name for the child. While choosing a name, factors like the welfare of the child, cultural considerations, interests of parents and societal norms can be reckoned by the court. The ultimate objective being the well-being of the child, the court has to adopt a name, taking into consideration the overall circumstances. Thus, this Court is compelled to exercise its parens patriae jurisdiction to select a name for the child of the petitioner," the Court observed.

The child in this case,had no name on her birth certificate. Since the child was set to begin her education, the school authorities insisted on a name for her, and refused to accept the birth certificate which carried no name. When the petitioner mother attempted to register a name for the child - namely, 'Punya Nair', the Registrar insisted on the presence of both parents before him to register the name. However, the couple could not arrive at a consensus on the issue, since the father wanted to name the child 'Padma Nair '.

"In cases where a dispute exists between the parents of the child, it is necessary that one of them be entitled to appear before the Registrar of Births and Deaths to provide a name. Insisting on the appearance of both parents is not contemplated as mandatory by the statute. This interpretation is essential in the context of increased instances of ‘single parent’ and considering the interests of the child," the Court said.

After taking into account the factual averments of the case, the Court opined that the name suggested by the mother, with whom the child was residing at present, had to be given due importance, and added that the name of the father also had to be incorporated since the paternity was also undisputed.

The Court thus arrived at the name of 'Punya Balagangadharan Nair' or 'Punya B. Nair' for the child. The petitioner was thus granted liberty to approach the Registrar and file a fresh application showing the name of the child as 'Punya B.Nair', and the Registrar was also directed to register the name without insisting on the presence or consent of both parents.

* POST DEPT. FINED FOR DEFICIENCY IN SERVICE

The India Post has been ordered by a District Consumer Commission in Hyderabad to pay the compensation of Rs.20,000 and further Rs.5,OOO towards litigation cost to a customer for not delivering his two parcels in the intact condition to the addressee.

A retired IPS officer, V.K Singh had sent two consignments to Haridwar in June, 2022. When the addressee opened one of the parcels, he found that ten saris worth Rs. 20,000 were missing. A complaint to the postal authorities did not yield any positive response. Therefore, he approached the District Consumer Commission.

The department of post argued that the consumer ought to have insured the consignment instead of just sending by the registered post. However, the Commission rejected the defence and ordered compensation and the cost.

* N.KOREA NOW A NUCLEAR POWER, LEGALLY !

The dictator -ruled country, People Republic of North Korea has now legally become a nuclear power. An amendment to this effect has been recently approved by the parliament and okayed by the apex court of the country.

The development with a possibly far reaching consequences on the peace prospects comes in the aftermath of the meeting of the dictator , Kim Jong Un with Russian president, Vladimir Putin a few days ago. Hitherto, N.Korea has been conducting nuclear tests causing predictable anxiety globally. EOM