LLM Notes: Legislative approaches during late colonial era in dealing with juveniles

 The legislative approaches during the late colonial era in India to deal with juveniles reflected a gradual shift from punitive to reformative methods, influenced by global reform movements and British colonial policies. Key features and legislations of this period include:

• Indian Penal Code 1860: Recognized children under 7 as incapable of crime (doli incapax), and children aged 7 to 12 as having conditional immunity based on maturity, establishing age-based differentiation in criminal liability.

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On Which grounds the personal law of a party can be ignored or superseded in India?

 In India, personal laws, including Mohammedan law (Islamic law), are applicable to individuals based on their religious or community affiliations. These personal laws govern various aspects of a person's life, such as marriage, divorce, inheritance, and other religious and family matters. However, there are instances when personal laws may be set aside or not applicable in favor of general laws or statutory provisions. Here are some examples of when personal laws may be ignored or superseded in India:

• Public Policy and Fundamental Rights: Personal laws in India, including Mohammedan law, must conform to the broader principles of public policy and fundamental rights enshrined in the Indian Constitution. If a personal law provision is found to be in violation of constitutional principles, it can be set aside or overridden.

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Whether the government can by a legislative enactment nullify a writ of mandamus issued by the court?

 It could, thus, clearly be seen that this Court has held that the effect of the judgments of this Court can be nullified by a legislative act removing the basis of the judgment. It has further been held that such law can be retrospective. It has, however, been held that retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. It has been held that the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. This Court has, however, clearly held that nullification of mandamus by an enactment would be impermissible legislative exercise. This Court has further held that transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the Rule of law and of Article 14 of the Constitution of India.

{Para 114}

118. As such, the said judgment cannot be said to be an authority to hold that by a legislative enactment, a writ of mandamus issued by this Court could be defused.

 IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) Nos. 456 of 2022, 

Decided On: 11.07.2023

Jaya Thakur  Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

B.R. Gavai, Vikram Nath and Sanjay Karol, JJ.

Author: B.R. Gavai, J.

Citation: MANU/SC/0756/2023.

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Can legislators use the saving clause to infuse life into legislation which is declared unconstitutional by court?

 Further, there can be no doubt that the Legislature has the power to include a saving provision while repealing a statute. However, we have been called upon to assess whether, in the peculiar facts of the present case, the Manipur Legislature had the competence to introduce a saving clause in the Repealing Act, 2018. The undisputed facts are that the 2012 Act and the Assam Act, 2004 are in pari materia. The Assam Act, 2004 was declared as unconstitutional in Bimolangshu Roy (supra). Public interest litigations were filed in the Manipur High Court challenging the vires of the 2012 Act. The Manipur Legislature decided to repeal the 2012 Act “in light of the judgment of this Court in” Bimolangshu Roy (supra) and “in the process of being a responsible Government which upholds the Rule of Law”, as have been categorically stated in the preamble of the Repealing Act, 2018. In the normal course of events, the public interest litigations challenging the vires of the 2012 Act would have been allowed and the 2012 Act would have been declared as unconstitutional, relying on Bimolangshu Roy (supra). However, before these matters were taken up by the High Court, the Manipur Legislature, taking cognizance of the ramifications of Bimolangshu Roy (supra) and acknowledging the inferable unconstitutionality of the 2012 Act, has enacted the Repealing Act, 2018. As is evident from the preamble of the Repealing Act, 2018, the repeal of the 2012 Act is a procedural formality by the Manipur Legislature to give the statute a logical conclusion, in light of the pending public interest litigations challenging its constitutional validity before the High Court. Bearing in mind these exceptional facts and circumstances, we are of the considered view that by means of the saving clause in the Repealing Act, 2018, the Manipur Legislature could not have infused life into a legislation, which was recognised by the Legislature itself as unconstitutional and thereby, a nullity, prompting its repeal. In light of the above, the Manipur Legislature cannot be said to have the competence to enact the saving clause in the Repealing Act, 2018.

                                 Supreme Court

JUSTICE L. NAGESWARA RAO JUSTICE B.R. GAVAI JUSTICE B.V. NAGARATHNA

The State of Manipur & Ors. Vs. Surjakumar Okram & Ors.

Civil Appeal Nos. 823-827 of 2022

1st February 2022

Author: L. NAGESWARA RAO, J.

Citation:  2022 ALL SCR (ONLINE) 109

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Leading judgment on law of pre-emption

The issue to be decided is a legal issue which stands in a narrow compass. Before dealing with the issue itself, it would be pertinent to refer to the Constitution Bench judgment of this Court in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., MANU/SC/0405/2001 : (2001) 8 SCC 24 wherein this Court considered the effect of the amendment made to the 1913 Act. This Court held that if Section 15 of the 1913 Act was amended during the pendency of the appeal before the Supreme Court, the decree of pre-emption would not be affected by such amendment. After discussing the entire law, the Constitution Bench culled out the following legal principles:

10. On an analysis of the aforesaid decisions referred to in the first category of decisions, the legal principles that emerge are these:

1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the court of the first instance only.

2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.

3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre-emption.

4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2062 of 2009

Decided On: 08.09.2017

Vijay Singh Vs. Shanti Devi and Ors.

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When doctrine of legitimate expectation is not applicable?

  Madras City Wine Merchants' Association and another  Vs.  State of
T. N. and another (1994) 5 Supreme Court Cases 509:
“Legitimate expectation may arise­
(a) if there is an express promise given by a public
authority; or 
(b)   because   of   the   existence   of   a   regular   practice
which the claimant can reasonably expect to continue;
(c) Such   an   expectation   must   be   reasonable.
However, if there is a change in policy or in public
interest the position is altered by a rule or legislation,
no question of legitimate expectation would arise.”
                                                    (emphasis supplied)
10] In the light of aforesaid legal position, it is crystal clear that the
petitioners have no legal right whatsoever to insist for consideration of their
applications for regularization on the basis of Government Resolution dated
28­11­1991. Though it is a fact that the applications moved by the petitioners
were pursuant to the said Government Resolution, these applications were
pending when the State Government came up with a fresh policy by issuing
Government Resolution dated 12­7­2011. The mere fact that the petitioners
had applied for regularization in terms of the earlier policy and the said
applications were pending when the new policy came into force cannot be a
ground to hold that the said applications ought to have been considered as

per the earlier policy. The said applications, therefore, have been rightly
decided in the light of Government  resolution dated 12­7­2011 which is
holding the field. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT   PETITION    NO.   6466     OF     2015
Bhagwan Kisan Wagh

V
 State of Maharashtra,


CORAM: A.S. CHANDURKAR, J.

 DATED: 21­-07-­2016.
Citation: 2017(2) MHLJ 425

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