List of top Questions asked in CLAT PG

Sections 31 to 35 of Chapter III of the Indian Contract Act, 1872 deals with contingent contracts and Section 36 deals with contingent agreements. A contingent contract is one where the liability to perform the promise depends upon some collateral event which may or may not happen. A contract of insurance is an example of a contingent contract, where the liability of the insurer depends upon the occurrence of the event, viz. damage or destruction arising out of fire. Life insurance in a broader sense comprises any contract in which one party agrees to pay a given sum upon happening of a particular event contingent upon duration of human life, in consideration of the immediate payment of a smaller sum or certain equivalent periodical payments by another. The event may be certain but it’s happening in a specific manner or within a particular time would be uncertain. A contract of indemnity to make good the loss arising out of the conduct of the promisor is a contract contingent upon the act of a party. Such condition may be express or may also be implied into a contract. A contract for storage of potatoes in a cold storage cooling system was held subject to an implied condition that it could be performed only when there was continuous electric supply. But where there is a document embodying the terms of a contract, it is not permissible to imply therein a condition if that will be inconsistent with its express terms.

To every State whose land territory is at any place washed by the sea, international law attaches a corresponding portion of maritime territory... International law does not say to a State: “You are entitled to claim territorial waters if you want them”. No maritime State can refuse them. International law imposes upon a maritime State, certain obligations and confers upon it certain rights arising out of the sovereignty which it exercises over its maritime territory. The possession of this territory is not optional, not dependent upon the will of the State, but compulsory. In the ninth edition of Oppenheim’s International Law, the nationality of ships in the high seas has been referred to in paragraph 287, wherein it has been observed that the legal order on the high seas is based primarily on the rule of International Law which requires every vessel sailing the high seas to possess the nationality of, and to fly the flag of, one State, whereby a vessel and persons on board the vessel are subjected to the law of the State of the flag and in general subject to its exclusive jurisdiction. In paragraph 291 of the aforesaid discourse, the learned author has defined the scope of flag jurisdiction to mean that jurisdiction in the high seas is dependent upon the Maritime Flag under which vessels sail, because no State can extend its territorial jurisdiction to the high seas. Of course, the aforesaid principle is subject to the right of ‘hot pursuit’, which is an exception to the exclusiveness of the flag jurisdiction over ships on the high seas in certain special cases.

Section 304-B (1) of the Indian Penal Code, 1860 (IPC) defines ‘dowry death’ of a woman. It provides that ‘dowry death’ is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry. Further, Section 304-B (2) of IPC provides punishment for the aforesaid offence. The Supreme Court of India summarized the law under Section 304-B of IPC and Section 113B of the Indian Evidence Act, 1872 (IEA) as under:
(i) Section 304-B of IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand;
(ii) The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B of IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B of IEA operates against the accused;
(iii) The phrase ‘soon before’ as appearing in Section 304-B of IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of ‘proximate and live link’ between the cruelty or harassment for dowry demand by the husband or his relatives and the consequential death of the victim

In Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, the court analysed the ambit of Article 22 of the Constitution of India and also the scope of the expression ‘arrest’ contained therein and also under the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC). ‘Arrest’ may be classified into two categories, namely, the arrest under a warrant issued by a court and arrest without warrant. Section 57 of the Code of Criminal Procedure clearly directs that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought before a Magistrate as provided under Section 167 of the Code of Criminal Procedure. Turning now to Article 22(1) and (2), we must ascertain whether its protection extends to both categories of arrests mentioned above, and, if not, then which one of them comes within its protection. There can be no matter of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants. The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right. The matter of ‘House Arrest’ was deliberated by the court as: “There can be no quarrel with the proposition that a court cannot remand a person unless the court is authorised to do so by law. We are of the view, that in the facts of this case, the house arrest was not ordered purporting to be under Section 167. We observe that under Section 167 in appropriate cases it will be open to courts to order house arrest.”

The constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA) was challenged on the basis that both WB-HIRA and a Parliamentary enactment, namely, the Real Estate (Regulation and Development) Act, 2016 (RERA) are relatable to the legislative subjects contained in Entries 6 and 7 of List III (Concurrent List) of the Seventh Schedule of the Constitution of India. WB-HIRA has neither been reserved for nor has it received Presidential assent under Article 254(2) of the Constitution of India, which was necessary since it was going to occupy the same field as the RERA, a law which had been enacted by the Parliament. The State enactment contains certain provisions which are either: directly inconsistent with the corresponding provisions of the Central enactment; or a virtual replica of the Central enactment; and Parliament having legislated on a field covered by the Concurrent List, it is constitutionally impermissible for the State Legislature to enact a law over the same subject matter by setting up a parallel legislation. The analysis indicates repugnancy between WB-HIRA and RERA. Undoubtedly, as Article 254(1) postulates, the legislation enacted by the State legislature is void ‘to the extent of the repugnancy’. There is, not only a direct conflict of certain provisions between the RERA and WB-HIRA, but there is also a failure of the State legislature to incorporate statutory safeguards in WB-HIRA, which have been introduced in the RERA for protecting the interest of the purchasers of real estate. For repugnancy under Article 254 of the Constitution, there is a twin requirement to be fulfilled: firstly, there has to be a ‘repugnancy’ between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of both the legislations and whether such dominant intentions of both the legislations are alike or different. A provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject. Hence, WB-HIRA is repugnant to the RERA, and is hence unconstitutional.

The Supreme Court of India, in South East Asia Marine Engineering & Constructions Ltd. (SEAMEC LTD.) v. Oil India Ltd.,(2020) 5 SCC 164, noted that, under the Indian contract law, the consequences of a force majeure event are provided for under Section 56 of the Indian Contract Act, 1872 which deals with a contract to do an Act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the Act becomes impossible or unlawful. When the parties have not provided for what would take place when an event which renders the performance of the contract impossible, then Section 56 applies. When the Act contracted for becomes impossible, then under Section 56, the parties are exempted from further performance and the contract becomes void. The Court has further held that in Section 56, the word ‘impossible’ is to be taken in its practical and not literal sense. It must be borne in mind, however, that Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. However, there is no doubt that the parties may instead choose the consequences that would flow on the happening of an uncertain future event, under Section 32 of the Indian Contract Act, 1872.

The Supreme Court of India has held that the nature of inquiry before the Family Court is, indeed, adjudicatory. It is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statute in that regard and also the foundational principle of fairness of procedure and natural justice. These provisions plainly reveal that the Family Court is expected to follow procedure known to law, which means insist for a formal pleading to be filed by both sides, then frame the issues for determination, record the evidence of the parties to prove the facts asserted by the concerned party and only thereafter, to enter upon determination and render decision thereon by recording the reasons for such decision. For doing this, the Family Court is expected to give notice to the respective parties and provide them sufficient time and opportunity to present their claim in the form of pleadings and evidence before determination of the dispute.

The Supreme Court of India has held that the rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hamper their capacity to be effectively represented before the Court. Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law.

The Supreme Court of India observed that, while appreciating the existence of the right to peaceful protest against a legislation ……., we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent must be in designated places alone. The present case was not even one of protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.

The present system of appointments as envisaged by the Constitution and as elucidated in the Collegium system makes it clear that the first step is a recommendation from Collegium of four senior-most judges and presided over by the Chief Justice. This process in turn requires wide consultation by the Chief Justice of the High Court to identify the requisite talent, so as to make the recommendations. Contrary to some portrayed beliefs as if this is an extremely subjective system, every Chief Justice is actually required to solicit names from different sources whether it be sitting judges, retired judges, or prominent members of the Bar. It is from this pool of talent that he selects, after a discussion in the collegium, the most suitable candidates. It is thus of utmost importance that the flow of recommendations continues for the appointment process to work successfully. The current situation of vacancies, especially in some of the larger courts with very few recommendations in the pipeline seems to be the genesis of this problem. The data placed before us, as drawn from the National Judicial Data Grid (NJDG) shows that five (5) High Courts alone are responsible for 54% of the pendency of over 57,51,312 cases i.e., the High Courts of Allahabad, Punjab & Haryana, Madras, Bombay, and Rajasthan. The Madras High Court has among the highest arrears in the country of 5.8 lakh cases despite having fewer vacancies than most other High Courts (i.e., 7%). This does not take away from the requirement of appointing ad hoc Judges but supports the view that even if the existing vacancies are few, a situation may arise requiring the expertise of experienced Judges to be appointed as ad hoc Judges.

A thought-provoking book titled ‘The Morality of Law’ by Lon L. Fuller on moral philosophy insists on a distinction between ‘morality of aspiration’ and ‘morality of duty’. From the view of the morality of aspiration, the human conduct does not bear on mandatory rules but on conceptions of the ‘Good Life’, of ‘what beseems a human being functioning at his best to human capacities’. Because no law can compel a man to live up to the excellence of which he is capable. But for workable standards of judgment, the morality of duty lays down the basic rules without which an ordered society directed towards certain specific goals must fail of its mark. Because the duty ties it very closely to what is ‘rationally discoverable’ and ‘objective’, as contrasted with the morality of aspiration based on subjectivism. However, moralists may differ as to what range of conduct should fall within the respective spheres of duty and the morality of aspirations. “When we are passing a judgment of moral duty, it seems absurd to say that such a duty can in some way flow directly from knowledge of a situation of fact.” As due to the fact that before we conclude ‘that a duty ought to exist’, however well we may understand the facts, by the close connection between understanding a person’s ideals, approval and disapproval. Does this mean that duties are rationally discoverable, and a matter of choice, even if not of ‘ineffable preference’? Presumably not, since when we pass a moral judgment of duty ‘ought’ to exist. It is necessary to distinguish between the accepted morality of a social group and the personal morality of individuals. ‘Duty’ may appear in all of these, but the satisfaction is very often a matter of degree varying from situation to situation. The rule of a morality of duty is necessary for social living. The morality of aspiration provides a general idea of the perfection we ought to acquire it. If we consider the whole range of moral issues, we may imagine a yardstick which begins at the bottom with the most obvious demands of social living and extends upward to the highest reaches of human aspirations. Somewhere along this scale an invisible pointer marks the dividing line where the pressure of duty leaves off and the challenge of excellence begins. The whole field of moral argument is an undeclared war over the location of this pointer. Whom we regard as being moralistic are always trying to inch the pointer upward so as to expand the area of duty and they bludgeon us into a belief that we are duty bound to embrace this pattern of human conduct, instead of making us realize a pattern of life they consider worthy of human nature

Both lawmen and laymen often ask, ‘What is the law applicable to a given set of facts?’ The answers to this question differ depending upon the specific jurisdiction to which the given set of facts is linked. Contrary to this, scholars and students of jurisprudence are likely to ask the general question, viz ‘What is Law?’. This question on the philosophy and nature of law supposes that law is a distinctive social-political phenomenon with universal characteristics that can be perceived through philosophical analysis. In such a study, the assumption is that law possesses some universal characteristics.
An analysis of the philosophy of law can be done for different reasons. Apart from a purely intellectual interest in understanding this complex phenomenon known as law, scholars also study the same as a normative social practice that purports to guide human behaviour, giving rise to reasons for action. The primary challenge of the branch of scholarship known as jurisprudence is based on this ‘normative, reason-giving aspect of law’. At the same time, we must understand that law is not the only normative realm in any given society. It is one of the many normative standards such as morality, religion, customs and usages, etiquette, self-regulatory standards within a family or corporation etc. So, it is also essential that we study law on the differences and similarities of the same with these normative standards.
While discerning these connections and contradictions, legal theories often study the content of the norm apart from giving importance to the source. Generally, theoretical studies on the content such as natural lawyers emphasize values such as fairness, justice, liberty etc., as qualifications for the norms to be called laws. They have argued that laws must be in tune with certain principles of inner morality, such as that laws be general, public, prospective, coherent, clear, stable, and practicable are indispensable to law-making. Whereas theories that give prominence to the sources of the norm, such as enactment/command by political institution/authority, do not always emphasize on the content.
Such philosophical analysis of law comprises both explanatory and justificatory aspects. While the explanatory aspect consists of explaining how laws can give rise to reasons and what kinds of reasons are involved. One example of this would be Dworkin’s classification of law as concepts, principles and rules. The aspect of justification concerns whether people ought to comply with the law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it.

Humans as well as the wildlife are completely dependent upon environment for their survival. Humans are completely dependent on the environment. Like humans, the wildlife is also dependent on the environment for its survival and also gets affected by the environment. The relationship between humans and animals can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanisation, high number of industries, chemical effluents, unplanned land-use policies, and reckless use of natural resources, etc.
The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., the Wildlife (Protection) Act, 1972 and the Environment Protection Act, 1986 etc. which have been enforced by the court in various decisions. The inaction of the State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate. Article 51-A of the Constitution of India provides fundamental duty to protect and preserve environment, wildlife, etc.

It is a cardinal principle of the law of contract that acceptance of an offer must be absolute and it can give no room for doubt. The offer and acceptance must be founded on three components, viz., ‘certainty’, ‘commitment’ and ‘communication’. However, when the acceptor puts any new condition while accepting the proposal already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by the Court in Haridwar Singh v. Bagun Sumbrui,[(1973) 3 SCC 889]. An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter-proposal which must be accepted fully by the original proposer, before a contract is made.

There is a difference between grant of bail under Section 439 of the Code of Criminal Procedure in case of pre-trial arrest and suspension of sentence under Section 389 of the Code of Criminal Procedure and grant of bail, post-conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by the Court in Dataram Singh v. State of UP, [(2018) 3 SCC 22]. However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Code of Criminal Procedure.

The Supreme Court has observed that in international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. Disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. For this they want the proper environment to grow. It is the thinking of Disability Rights Movement, USA that it is not so much the disabled individual who needs to change, but the society

The Supreme Court judgment in B. Singh v. Union of India, [(2004) 3 SCC 363] held, when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the said petition is to be thrown out. Public interest litigation (PIL) which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘paise income litigation’. If not properly regulated and abuse averted, it may become a tool in unscrupulous hands to release vendetta and wreak vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of a knight errant borne out of wishful thinking. It cannot be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. The expression ‘PIL’ means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking

A question regarding the scope of Section 212 of the Companies Act, 2013 was considered in Serious Fraud Investigation Office v. Rahul Modi, [2019 SCC OnLine SC 423]. The court observed that the Central Government is empowered under Section 212(1)(c) of the Companies Act, 2013 to order investigation into the affairs of a company in public interest by the Serious Fraud Investigation Office (SFIO). Section 212(3) of the Companies Act provides that the investigation orders are required to be completed within the specified time. If it not so done, what should be the consequences and whether further proceedings or investigations shall be unlawful. The provision has to be seen in the context in which it occurs in the statute. Therefore, the stipulation of Section 212(3) regarding submission of the report ‘within such period as may be specified in the order’ is not to be taken as mandatory, but as purely directory. On the objective interpretation of the statutory provision, it cannot be said that on the expiry of that period the mandate in favour of SFIO must come to an end. If it was to come to an end, the legislation would have contemplated certain results thereof. In the absence of any clear stipulation, an interpretation that with the expiry of the period, the investigation must come to an end, will cause great violence to the scheme of legislation and with the expiry of mandate SFIO would also be powerless which would lead to an incongruous situation that serious frauds would remain beyond investigation.

It is well settled that while taking a decision regarding custody or other issues pertaining to a child, welfare of the child is of paramount consideration, not rights of the parents under a statute for the time being in force. In Rosy Jacob v. Jacob A. Chakramakkal, [(1973) 1 SCC 840], the Court held that object and purpose of the Guardians and Wards Act 1890 is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. In considering the question of welfare of minor, due regard has to be given to the right of the father as natural guardian, but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. The word “welfare” has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. Every child has right to proper health and education and it is the primary duty of the parents to ensure that child gets proper education. The courts in exercise of parens patriae jurisdiction have to decide such delicate questions. It has to consider the welfare of the child as of paramount importance taking into consideration other aspects of the matter including the rights of parents also

Conceptually, extradition is a rather complex jurisprudential zone as it has encompassed within itself various trajectories of apparently conflicting ideas. Generally, a State’s criminal jurisdiction extends over offences committed within its geographical boundaries but it is the common experience of all the countries that often a criminal committing an offence in one country flees to another country and thus seeks to avoid conviction and the consequential punishment. This poses a threat in all civilised countries to a fair adjudication of crime and sustaining the constitutional norms of rule of law. To remedy such anomalous and unjust situation, extradition has been evolved by way of international treaty obligation which ensures a mode of formal surrender of an accused by one country to another based on reciprocal arrangements. In India, extradition has not been defined under the Extradition Act, 1962. However, extradition has been defined as: ‘… the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender.’ But extradition is different from deportation by which competent State authorities order a person to leave a country and prevent him from returning to the same territory. Extradition is also different from exclusion, by which an individual is prohibited from staying in one part of a sovereign State. Both deportation and exclusion basically are nonconsensual exercise whereas extradition is based on a consensual treaty obligation between the requesting State and the requested State.

Torture is a form of crudity and a barbarity which appals modern civilisation. The right to freedom from torture is enshrined in number of human rights instruments which provide for protection of all individuals from being intentionally subjected to severe physical or psychological distress by, or with the approval or acquiescence of government agents acting for a specific purpose, such as to obtain information. The issues of fake encounters; illegal, unjustified and unwarranted arrests without any valid ground; eliciting confession from innocent persons for offences which they have never committed, by way of custodial violence; etc., have always been subject-matters of consideration by the Indian courts. Police atrocities in India had always been a subject-matter of controversy and debate. In view of the provisions of Article 21 of the Constitution of India, any form of torture or cruel, inhuman or degrading treatment is inhibited. Torture is not permissible whether it occurs during investigation, interrogation or otherwise. The State must protect victims of torture and ill-treatment. Therefore, the State must ensure prohibition of torture, cruel, inhuman and degrading treatment to any person, particularly at the hands of any State agency/police force. Tolerance of police atrocities amounts to acceptance of systematic subversion and erosion of the rule of law

Section 311 of the Code of Criminal Procedure, 1973 (CrPC) provides that any Court may, at any stage of any inquiry, trial or other proceedings under the CrPC, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person ‘if his evidence appears to it to be essential to the just decision of the case’. The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. The power conferred under Section 311 of the CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.

Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. The Supreme Court of India observed that recently, the Courts across the country, have started imposing irrelevant conditions while granting bail. The conditions that can be imposed under the law are clearly laid down in the Code of Criminal Procedure, 1973 and by the Supreme Court through its various decisions. Accordingly, it is clear that imposing conditions like rendering community service in COVID hospitals or in any other institution, plantation of trees, contributing to any particular charity relief fund, etc. is impermissible in law. While deciding a bail application, accused cannot assume the role of a social reformer or fund raiser for charities and imposed with conditions which have no nexus with the offence or relevance with the object of the bail provisions. During pendency of the trial accused is presumed innocent and his guilt is yet to be adjudicated by the Court. Imposing irrelevant conditions is violative of the right to equality and personal liberty, including procedure established by law. Such wide prevalence necessitates the urgent intervention of the court to declare that such remarks are unacceptable and have the potential to cause grave harm to the prosecutrix and the society at large; and to issue directions on gender sensitization of the bar and the bench, particularly with regard to judicial empathy for the prosecutrix…judicial stereotyping is a common and pernicious barrier to justice, particularly for women victims and survivors of violence. Such stereotyping causes judges to reach a view about cases based on preconceived beliefs, rather than relevant facts and actual enquiry. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice.

Courts must be open both in the physical and metaphorical sense. Save and except for in - camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. However, there are certain exceptions to the rule of open courts in India. While emphasising the importance of public trial, it cannot be overlooked that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? If the primary function of the court is to do justice in causes brought before it, then on principle, it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court. The exceptions must be exercised with great caution and it is only if the court is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can pass an order to hold the trial in camera.

The right to self-determination and bodily integrity has been recognised by the Supreme Court of India. The right to execute an Advance Medical Directive is nothing but a step towards protection of the aforesaid right by an individual, in event he becomes incompetent to take an informed decision, in particular stage of life. It has to be recognised by all including the States that a person has right to execute an Advance Medical Directive to be utilised to know his decision regarding manner and extent of medical treatment given to his body, in case he is incapacitated to take an informed decision. Such right by an individual does not depend on any recognition or legislation by a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self-determination which are duly protected under Article 21 of the Constitution. The procedure and manner of such expression of such right is a question which needs to be addressed to protect the vulnerable, infirm and old from any misuse. It is the duty of the State to protect its subjects specially those who are infirm, old and need medical care. The duty of doctor to extend medical care to the patients, who come to them in no manner diminishes in any manner by recognition of concept that an individual is entitled to execute an Advance Medical Directive. The physicians and medical practitioners treating a person, who is incompetent to express an informed decision have to act in a manner so as to give effect to the express wishes of an individual.