सुप्रीम कोर्ट का ED पर बड़ा फैसला | ED प्रमुख का एक्सटेंशन गैरकानूनी

CASE NOTES: - 

• Dr. Jaya Thakur v. Union of India, 2023 INSC 616
• Reportable Judgment dated 11.07.2023 authored by Hon’ble Justice B.R. Gavai, Bench of Hon’ble Justices B.R. Gavai, Vikram Nath and Sanjay Karol.
• 103 Pages Judgment with 122 Paragraphs.

·        Facts (Paras 1 to 14): -

o   Order dated 19.11.2018 – Respondent No. 2, Mr. Sanjay Mishra, working as Principal Special Director of ED was appointed as a director for 2 years.

o   Order dated 13.11.2020 – Period of appointment extended from 2 years to 3 years.

o   Judgment dated 08.09.2021 – Common Cause v. Union of India & Ors., 2021 SCC OnLine SC 687 – The Court directed that no further extension shall be granted to the Respondent No. 2, ED Director.

o   14.11.2021 – The President of India promulgated Central Vigilance Commission (CVC) (Amendment) Ordinance, 2021 and Delhi Special Police Establishment (DSPE) (Amendment) Ordinance, 2021, inserting certain new provisions in it. These ordinances later on become Acts on 18.12.2021 when Parliament was in session.

o   15.11.2021 - Fundamental (Amendment) Rules, 2021 was passed. On the same date, a Meeting of the Committee headed by Central Vigilance Commissioner was held and the tenure of Respondent No. 2, ED Director was extended up to 18.11.2022 in public interest.

o   17.11.2022 – Further extension was granted to Respondent No. 2 till 18.11.2023 by the Union of India.

o   These Amendment Acts and extension of tenure of Respondent No. 2 were challenged in a batch of Writ Petitions.

·       Issue No. 1 –

o   Three laws in challenge, 2 amendments to CVC and DSPE Act and 1 amendment in the Fundamental Rules.

o   These amendments provide for the period for which CBI or ED Director hold office can be extended for one year at a time in public interest and the maximum period of appointment will be five years (Para 64).

o   Any amendment or law can be struck on three grounds only (Paras 71 to 75): -

§  The legislature does not have the competence to make the law; or

§  It takes away any of the fundamental rights in the Constitution; or

§  It violates a Constitutional Provision being manifestly arbitrary.

o   However, in the present case, the Court said that the CVC Act and DPSE Act provide for a stringent mechanism of appointment and there is no scope for the government to do the same in an arbitrary manner (Paras 91 to 98).

o   Therefore, it cannot be said that Amendments in question grant arbitrary power to the Government to extend the tenure of director of ED/CBI.

·    Issue No. 2 – Regarding extension of tenure of ED Director, the Court said that in the earlier case of Common Cause (2021), a specific direction was given by the Court that no further extension will be granted to Sanjay Kumar Mishra, Respondent No. 2.

o   Even if the Parliament changes or amends a law on the basis of which a decision was given by the Court, still the Parliament cannot change the decision of the Court that is binding on the parties to the case. Parliament can exercise legislative power and not judicial power. (S.R. Bhagwat v. State of Mysore and In Re Cauvery Water Disputes Tribunal cited, Para 108).

o   If a law has been struck down by the Court, the Parliament is free to make a new law on that very issue. There is permissibility of Legislative Override. However, any such new law must not be arbitrary or violative of Fundamental Rights (Madras Bar Association v. Union of India & Another, 2022 12 SCC 455 cited, Para 113 & 114).

o   But where a Mandamus or a specific direction has been given by a court without striking down any law, the Parliament cannot nullify such direction by legislative exercise.

o   Therefore, the Common Cause (2021) Judgment would continue to operate even after passing of the Amendments as no law was struck down in that judgment and only direction was given to the parties to the case. Hence, extension of tenure of ED Director was held as invalid in law.

o   The Court said that in order to ensure the transition to be smooth in the larger public interest, the Respondent No. 2 was allowed to continue in office till 31.07.2023.

·      Thus, the Writ Petitions were dismissed to extent of their challenge to the validity of the Amendments in CVC and DPSE Act, but were partly allowed to the extent that the grant of extension to Respondent No. 2, Sanjay Kumar Mishra, is illegal.

Ejusdem Generis Explained in Hindi | Law of Interpretation |

This Episode discusses the meaning of Ejusdem Generis and Noscitur a Sociis in Hindi.

Casus Omissus Explained | Latin Maxims and Principles in Law

Show Script: 

Ladies and Gentlemen!

 

Imagine you are playing the game of chess in a big Championship. All the rules that are to be followed are mentioned in its Rulebook.

 

Now, while playing a game, your opponent accidentally touches a piece on the board but does not move it, instead he moves some other piece.

 

You immediately object to this and tell the Organizers that when a player has touched a piece, he must move that piece only and no other piece.

 

The organizers start looking for such a rule in the Rulebook, but to their surprise, they discover that no such rule exists.

 

So, in absence of such a rule, the Organizers will dismiss your objection and will allow your opponent to touch pieces without moving them.

 

 

My dear friends, this is what Casus Omissus is.

 

It is a Latin term that literally means “case omitted” or in legal sense, “a matter which should have been but has not been provided for in a statute”.

 

It is used by the judges as a tool of statutory interpretation.

 

To explain further, there is another example for you.

 

Imagine the law of your country prohibits smoking in public places like parks, roads and restaurants.

 

But the law doesn't mention whether electronic cigarette or e-cigarettes could be smoked in public places or not.

 

Again, such an omission in the law is a Casus Omissus and to clarify such a confusing situation, the lawmakers should amend or change the law to explicitly include e-cigarettes in it in order to protect public health.

 

However, due to some unforeseen reason, the lawmakers do not amend or change the law.

 

So, if you are caught by the Police tomorrow smoking an e-cigarette in a public place and if the matter goes to the court, what should the courts do?

 

Can the Courts fill in the gap that has been left consciously by the lawmakers or the legislature?

 

The answer is No.

 

But it is not as straightforward as it seems to be.

 

There are certain exceptions to the Principle of Casus Omissus that I will tell you in the next few minutes.

 

Generally speaking, such omissions or defects in a law cannot be filled in by the courts.

 

But what you need to understand is that the courts may interfere in some situations where the words were accidentally omitted, or the omission of the words is making the law useless or without purpose.

 

And in such situations, the Court should supply some words to that law to the extent of achieving the purpose for which the law has been framed.

 

Now, let’s come back to the example of e-cigarettes.

 

If you are caught by the Police smoking an e-cigarette, the Court may say that the purpose of the law prohibiting smoking was to protect public health and by smoking e-cigarettes in public places, the intent and the spirit of such law is being blatantly violated.

 

Therefore, by applying the Principle of Casus Omissus, the Court may hold that even if e-cigarettes are not explicitly mentioned in the law, but if someone is found smoking an e-cigarette in a public place, such conduct would be squarely covered or punishable under the law that prohibits smoking in general.

 

Thus, if a defect appears in a law, the judge cannot simply fold his hands and blame the lawmakers.

 

He must find the intention of the Lawmakers in making of that law and thereafter he must provide additional or supplementing words to the law so as to give meaning, force and life to that law and its purpose.

 

I will give one last example to explain some related aspects.

 

Suppose there is a law that prohibits sale of certain products in shops without a license, but that law is silent on online sale of such a product.

 

In such a situation of Casus Omissus, the Court cannot and should not say that online sale of products is exempted from the ambit of licensing law because that law does not mention anything about it.

 

Basically, the courts should avoid creating a Casus Omissus where there is none as it would lead to unregulated e-commerce that was never the intention of the law makers.

 

Therefore, what you need to know is that while adding or supplementing the words in a statute, the court should not change the nature of that law and the original purpose or intent of that law must be kept intact.

 

That is all about Casus Omissus. Let me know your thoughts in the comments section.

 

See you next time. 

Terra Nullius in International Law Explained | Terra Nullius and Res Communis

Show Script: 

Ladies and gentlemen!

Imagine there's a magical garden in the middle of your city, hidden and forgotten by everyone. No body looks after that garden or claims it as their own. One day, you and your friends find it and amazed by its beauty, you make it your secret place to hang out or your secret playground about which nobody else knows.

So, what do you call such a garden or a piece of land that nobody occupies or claims as their own?

It is called Terra Nullius, a Latin term that literally means “the land of no one.”

Terra Nullius is an old concept that has been used to describe places like Australia. You would be surprised to know that when Captain James Cook came to the Australian shores in the year 1770, he declared a part of the Australian continent to be British Territory as according to him, he and his crew were the first ones to occupy the Australian Continent and before them there was no kingdom or ruler or state that occupied Australia.

They called it as the legal concept of Terra Nullius and on the basis of this legal principle, Britian continued its colonization in Australia more than a century.

Accordingly, International law recognizes territory over which there is no sovereign or ruler as Terra Nullius.

The method of acquiring this Terra Nullius is called as ‘Occupation.’ There are four important points that you need to know in this regard.

First, the occupation of terra nullius must be by a state and not by private individuals.

Second, the control of the territory or terra nullius must be effective and permanent. It should not just be on paper, or it should not just be a photo-op.

Third, the occupied territory should not be res communis. Res communis is the opposite of terra nullius and it means something that belongs to everyone. In International Law, it is an area or territory that is not subject to any legal title or ownership. High Seas, Antarctica and Outer Space are some of the examples of Res Communis. Basically, anything that is the common heritage of the mankind is considered as res communis.

Fourth, the Terra Nullius that is occupied should be uninhabited, that is to say, it should not be occupied by any indigenous communities or tribes. This was also held in the famous Western Sahara Case.

Now, imagine there is a country, Country A. It was occupying an Island till the year 1950. However, after 1950, Country A abandoned its control over that Island. 73 years later, Country B, goes to that Island and occupies it on the ground that Country A abandoned it a long time ago. Can Country B occupy that territory now? Yes. It is settled in International Law that abandonment of territory might render an otherwise occupied territory as terra nullius.

Lastly, you need to know that if any country wants to establish its occupation or sovereignty or control over a territory, it does need to prove its occupation in absolute terms, that is to say, there are no watertight rules that govern the concept of terra nullius. That country simply needs to establish a better title or a better case before the courts against its opponents to prove its occupation.

While deciding such cases, the International Courts generally look into the history, geography and the response or claims of the International Community with respect to the territory.

So, that is all about Terra Nullius. Let me know in the comments section whether you liked this episode or not.

See you next time.

Difference between Municipal Law and International Law | Monism and Dualism

Show Script: 

Ladies and Gentlemen! 

Today, you will witness an epic clash between two legal heavyweights: municipal law and international law. 

So, buckle up, hit that subscribe button and prepare to witness this ultimate legal battle that will shine the spotlight on the diverse principles, and perspectives that shape our global legal framework. 

I guarantee it will keep you hooked until the very end.

The story of Municipal Law and International Law began a long time ago when two contrasting philosophies emerged: Monism and Dualism. 

Think of a rainbow with its beautiful colors. Monism is like understanding that all these colors are actually different shades of light. They may look separate, but they all come from the same source—white light. 

These Monists believe that there is fundamental unity in the world, and everything could be reduced to a single underlying principle like ‘Sabka Maalik Ek’. Monism rejects duality and promotes oneness or singularity. 

Now, let's think about Day and Night. When the sun shines, it's bright and warm, but when the sun sets, darkness falls, and we experience night. Day and Night represent separate entities, showing the contrast between light and darkness. 

This is where Dualism comes into play. 

It opposes Monism and believes in the existence of two separate realities, such as heaven and hell, swarg and nark, good and evil or mind and matter. Dualists give emphasis to the distinct and independent nature of these twofold aspects. 

I will tell you more about it, later in the episode.

The next thing you should know about is the meaning of Municipal Law. 

But before I dive deeper into this topic, let's clear one thing.

In the world of international law, we come across terms like Municipal Law, National Law, Local Law, State Law, Domestic Law, and Regional Law. These terms differ from place to place, but they mean one and the same thing and refer to the laws that govern a specific country or region. 

Essentially, they are the rules and laws made specifically for your country and by your country. 

In Indian context, the Constitution of India, laws passed by the Parliament and State Legislatures like IPC and Traffic Rules are some of the examples of Municipal Law. 

Municipal Law governs individuals and organizations created under it, such as companies, partnership firms, and trusts. 

Basically, the source of Municipal Law is the will of the State itself as these laws are usually formulated by elected representatives in Parliament or State Legislatures. 

Hence, Municipal Law is the backbone of any country’s legal framework. 

On the other hand, International Law is the set of rules that countries agree to follow when they interact with each other. 

It is like a code of conduct for the entire world. 

It includes treaties, human rights and international organizations like the United Nations. 

What you need to know is that it is applicable solely to the countries or nation-states and it is not directly applicable to individuals or local organizations. 

Further, treaties, customs, decisions of international courts are some of the sources of International Law. 

To know more about sources of international law, please watch my earlier episode. 

Now, Monism believes that International Law and State Law are two related aspects of a single system, namely, the General Law and any classification of this General Law is useless, whereas the dualists believe that International Law and Municipal Law represent two entirely distinct systems that have no relationship with each other. 

I will give an example. 

You and your best friend want to play your favorite game, Teen Patti. 

Monism would say that there is only one way of playing Teen Patti and there is only one set of rules to be followed. The variations of Teen Patti like Mufliss or Joker variation are simply part of the same game. Whereas Dualists would argue that the different versions of Teen Patti like Mufliss are actually separate games in themselves since they have completely different rules that have no relationship with the original game of Teen Patti. 

How is this relevant in International Law? 

Basically, because of the constant tussle between Monism and Dualism, people get confused as to what is more important, Municipal Law or International Law. 

But don’t worry. I will remove this confusion in the next few minutes. 

You know that in the field of law, every country is considered as sovereign and equal. And today the world is so interconnected that actions of one country can have far-reaching consequences on other countries. 

Imagine the Cricket World Cup is going on. 

Many countries participate in it and follow all the rules. 

If one country starts breaking the rules or starts to indulge in match-fixing or cheating, then all the other countries will be affected by it since it would affect the outcome of the games and the overall standing of the nations in the tournament. 

The country breaking the rules might say that Match-Fixing is legal in our country and that is why we are doing it. But would such an approach solve the problem or remove the confusion? No. 

To solve this problem, the Theory of Harmonization Theory has been developed.

Let’s say, there is a country, Country A. It signs a treaty to protect the environment with other countries. If country A wants proper implementation of that International Treaty, then it should frame a corresponding Domestic or Municipal Law that furthers the goals of the Treaty. If Domestic Law is not protecting the environment and if the International Law is claiming such protection of environment, then there would be utter chaos and eventually, the countries would lose their trust in International Law. This is where the Theory of Harmonization comes into picture. 

Theory of Harmonization says that internally, countries can have their own laws, but international cooperation is equally important and cannot be ignored. 

Thus, both domestic law and international law should be aligned with each other to avoid clashes and conflicts. 

I find Harmonization THe

Just hold on a moment! Do not close this video. 

There is one last and very important thing that you need to know i.e., the case laws. 

These cases will help you understand the current position in the battle between Municipal Law and International Law. 

The first case is the Applicability of the Obligation to Arbitrate case where it was said that the fundamental principle of international law is that international law prevails over domestic law. 

This is also provided in Article 27 of the Vienna Convention of Law of Treaties, 1969 (VCLT) that provides that a treaty cannot be broken by a country because its domestic law is different from the treaty law. 

The second case is the Lockerbie case where the Court said that expressing inability under domestic law to follow International Law is no defence to non-compliance with an international obligation.

Basically, the supremacy of International Law has been maintained by the International Courts. 

There are numerous other case laws as well. But I will not overburden your mind any further. 

That is all about it. The outcome of the battle is also clear. In the sphere of International Law, the International Law prevails, and in the domestic sphere, the Municipal Law prevails. There are grey areas where theories like Harmonization Theory are helpful. 

Let me know your views in the comments section. 

See you next time. 

Law of Treaties Simplified

Show Script: 

Ladies and Gentlemen! 

My name is Suyash, and I am the Internet’s new Law Teacher. 

Today, I will tell you what a Treaty is. 

Now, you might be thinking, 'Treaties? I already know what they are.' 

But hold on a moment! 

I am here to take your understanding to a whole new level.

In this show, I will be going beyond the basics and will help you unlock the secrets of the world of treaties and tell you the power they hold in shaping our world. 

So, friends, get ready for this enlightening journey, subscribe to my channel, hit that notification bell and be a part of our community of curious minds. 

By the way, have you ever wondered how two countries on the brink of war suddenly find a path to peace. How is such a monumental shift possible? The answer lies in the fascinating world of treaties. 

Think of treaties as the building blocks of international relations. They serve as the glue that brings nations together, enabling cooperation, resolving disputes, and addressing a wide range of issues that transcend borders. From matters of trade and commerce to human rights, environmental protection, and even disarmament, treaties provide a framework for collaboration and collective action.

So, what exactly is a treaty? 

At its core, a treaty is a formal agreement between two or more parties, typically countries, that establishes rights, obligations, and expectations among them. These agreements are binding and carry legal weight, playing a crucial role in international relations and shaping the world we live in. 

And names are mere formalities! 

Whether called an Agreement, Pact, Convention, Protocol, or Charter, the essence of treaties remains the same. 

So, never judge a treaty by its title and it is the substance of a treaty that matters. 

Did you know? When two nations engage, it's a Bilateral Treaty but when the party gets bigger, it's called a Multilateral treaty. 

Now, before moving further, you should know that there is an entire treaty that deals with the law of treaties. Amazing! Isn’t it? 

Well, Law of Treaties! 

What the heck is that? 

It is called the Vienna Convention of Law of Treaties (VCLT). 

Adopted in the year 1969, the VCLT has a rich historical significance and has emerged as a result of lengthy international legal discussions that took place for many years. It is divided into 8 parts and contains 85 articles. 

It is undoubtedly one of the most important treaties in the realm of International Law as: 

1. It codifies the various principles relating to treaties;
2. Helps in interpretation of new and existing treaties;
3. Facilitates peaceful resolution of disputes arising from breach of treaties;
4. It also promotes international cooperation among states by providing for principles for implementation of treaties; and
5. While doing all this, it also safeguards the sovereignty of states. It makes sure that the states have control over their treaty commitments. 

Thus, everything that is to know about the treaties is contained in VCLT.

 
Though the study of VCLT is a vast subject in itself, yet to dive a little bit deeper, I will tell you five key provisions of VCLT. 

First, Article 2 (1) (a) that defines treaties as an international agreement concluded between States in written form and governed by international law. 

Second, Article 26 that states that all the treaties must be observed and performed in good faith. This is called the principle of ‘Pacta Sunt Servanda’. To know more about Pacta Sunt Servanda, please watch my earlier episode on it. 

Third, Article 53 that talks about the principle of Jus Cogens which simply means a crucial rule that no country can ignore or break. It has been defined as a mandatory and non-derogable rule of International Law that is accepted and recognized by the international community. To know more about Jus Cogens, please watch my earlier episode on it. 

The fourth legal provision that you should know is Article 62 that talks about fundamental change in circumstances. Basically, if something occurs after signing a treaty that was not foreseen by the parties and that has to change the nature of responsibilities to be performed by the members in the treaty, then it is a fundamental change in circumstances and the parties can take it as a ground for withdrawing from or terminating the treaty. 

The last relevant provision of VCLT for you is Article 11 that talks about consent and its modes. Free will and free consent are considered very important in VCLT and countries cannot become party to a treaty without their express consent, that is to say, a treaty cannot be forced upon a state. 

Those were the five key provisions of VCLT and there is one more important provision Article 38(1)(a) of the Statute of the International Court of Justice that you should know. This provision has uplifted the status of treaties and it is now considered as one of the sources of International Law. So, if you want to create a new rule in international law, draft a treaty and get it signed by the countries. 

Now, you must be thinking that okay, once a country has entered into a treaty, that is it. That country has to live with that treaty for the rest of its life. Is such an understanding correct? No. 

When a country enters into a treaty, it should not be a suffocating relationship and generally speaking, there are four options, depending on the situation. They are:  
1. Reservations
2. Amendment or Modification
3. Invalidation
4. Termination

Let’s understand the meaning of these terms with examples. 

Imagine the Cricket World Cup is happening with teams from different countries. All countries agree to follow the rules of the tournament, one of which says that all players must wear red jerseys. There is one country A that does not agree to it. It makes a special request that since the national color of their country is Green, their players should be allowed to wear green jerseys. This is what is meant by ‘Reservation’. It is a special request or a unilateral statement at the time of signing of a treaty whereby a member-state may modify a treaty provision as a special case.
Imagine two countries, A and B, enter into a treaty to protect Elephants and Tigers. The treaty works out fine; however, later on, the countries realize that it is also important to protect rhinoceros. So, they sit together and change the terms of the treaty to include protection of Rhinoceros in it. This is what is meant by amendment or modification in a treaty. 

Now again imagine that two countries A and B enter into another treaty to share water from a river that flows between their borders. They agree to use the water responsibly and not pollute it. However, if Country A starts dumping harmful chemicals into the river, it would violate the terms of the treaty and make it invalid. 
Now, again Imagine "Country A" and "Country B" sign a treaty to promote free trade and eliminate tariffs/taxes on imported goods. However, if Country B imposes high tariffs or taxes on Country A's products, it could lead to the termination of the treaty. In this case, Country A may choose to terminate the treaty to protect its economic interests and explore new trade agreements with countries that prioritize fair and open trade practices.

That was all about reservation, amendment, invalidation and termination of treaties. Lastly, you should know that there are many case-laws that discuss about the law of treaties such as Qatar v. Baharin (2001), Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro), Anglo-French Continental Shelf case, Belilos v. Switzerland (1980) and the Rainbow Warrior case. 

Well, the Law of Treaties is a vast subject in itself and if I started going into its details, it would take hours and hours. What I have told you is Treaty 101 i.e., the basics of treaties. Let me know in the comments section if you want me to record more episodes on treaties. 

Stay curious and see you next time.