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Month: December 2023

Doctrine of Legitimate expectations under administrative law

The principle of legitimate expectations means that expectations raised by administrative conduct have to be respected and fulfilled, at least for the public interest, unless betterment demands otherwise.  And non-fulfillment can have some serious legal consequences.  The main role played by the courts in the entire transaction of this doctrine is to safeguard individuals’ expectations in the face of changes in policy.

Legitimate expectation is a concept in administrative law that refers to the reasonable expectation of a person or a group of people to be treated in a certain way by a public authority, such as a government agency or a court. Legitimate expectations can arise from:

  • An express promise or assurance made by the authority.
  • A regular practice or policy of the authority.
  • A legal provision or a general principle of law.

Legitimate expectations can be classified into two types:

  • Procedural legitimate expectation: This is the expectation of a fair and transparent process before a decision affecting one’s rights or interests is made by the authority. For example, a person may have a legitimate expectation to be given a hearing or a notice before their license is revoked.
  • Substantive legitimate expectation: This is the expectation of a favorable outcome or a benefit from the authority based on its promise, practice, or policy. For example, a person may have a legitimate expectation to receive a grant or a subsidy if they meet the eligibility criteria.

Legitimate expectation is not an absolute right but a ground for judicial review of administrative actions. If the authority breaches the legitimate expectation of a person or a group of people, the court may intervene and order the authority to:

  • Fulfill the legitimate expectation.
  • Provide a valid justification for departing from the legitimate expectation.
  • Compensate the affected person or group for the loss or damage caused by the breach.

Legitimate expectation is a dynamic and evolving concept that aims to protect the interests of the people and promote good governance, accountability, and fairness in public administration.

Legitimate expectation under administrative law in India is similar to the concept in the UK, but with some differences. According to the Supreme Court of India, a legitimate expectation is:

  • A right that arises from the principles of natural justice, equity, and good conscience
  • A reasonable and rational expectation of a person or a group of people from a public authority based on its past actions, representations, or promises
  • A flexible and pragmatic tool to ensure fairness and justice in administrative actions
  • A ground for judicial review of administrative actions, but not a source of substantive rights

Some of the case laws that illustrate the concept of legitimate expectation in India are:

The doctrine of legitimate expectation is a principle of administrative law that grants a person the right to a fair hearing or a fair procedure when a public authority makes a decision affecting their interests. The doctrine is based on the idea that a person who has a reasonable expectation of a certain outcome from a public authority should not be disappointed by a sudden change of policy or action by the authority.

In India, the doctrine of legitimate expectation was first recognized by the Supreme Court in the case of Navjyoti Coop. Group Housing Society vs. Union of India (1992), where the court held that the allottees of flats under a housing scheme had a legitimate expectation of getting possession of the flats as per the terms and conditions of the scheme, and any arbitrary cancellation of the allotment by the authority would violate their right to a fair hearing.

Some other cases where the doctrine of legitimate expectation was applied in India are:

  • Union of India vs. Hindustan Development Corporation (1993): The court held that the respondent company had a legitimate expectation of getting a renewal of its mining lease as per the previous practice of the government, and the government’s refusal to renew the lease without giving any reasons or hearing the company was arbitrary and unjust.
  • Food Corporation of India vs. Kamdhenu Cattle Feed Industries (1993): The court held that the appellant corporation had a legitimate expectation of getting a supply of rice bran from the respondent industry as per the agreement between them, and the industry’s unilateral termination of the agreement without any notice or opportunity to the corporation was illegal and unfair.
  • Rajasthan State Industrial Development and Investment Corporation vs. Subhash Sindhi Cooperative Housing Society (2013): The court held that the respondent society had a legitimate expectation of getting a lease of land from the appellant corporation as per the allotment letter issued by the corporation, and the corporation’s cancellation of the allotment on the ground of non-payment of dues without giving any notice or hearing to the society was violative of the doctrine of legitimate expectation.

Limitations or Restrictions of Doctrine of Legitimate Expectation

The restriction of legitimate expectation is a concept that limits the scope and application of the doctrine of legitimate expectation in administrative law. The doctrine of legitimate expectation grants a person the right to a fair hearing or a fair procedure when a public authority makes a decision affecting their interests based on a reasonable expectation of a certain outcome from the authority.

However, the doctrine of legitimate expectation is not an absolute or inflexible rule of law but a flexible and pragmatic tool of justice. It is subject to certain restrictions, such as:

  • The doctrine cannot override or contradict the statutory provisions or the public interest.
  • The doctrine cannot create a substantive right or entitlement that does not exist in law.
  • The doctrine cannot be invoked to challenge a policy decision or a legislative act of the government.
  • The doctrine cannot be based on an illegal, irrational, or unreasonable expectation.
  • The doctrine cannot be applied retrospectively to nullify a valid decision or action of the authority.

These restrictions are meant to balance the interests of the individual and the authority and to prevent the abuse or misuse of the doctrine of legitimate expectation.

Some of the cases where the restriction of legitimate expectation was applied are:

  • Rajasthan State Road Transport Corporation vs. Krishna Kant (1995): The Supreme Court held that the doctrine of legitimate expectation cannot be invoked to challenge the policy decision of the government to abolish the post of General Manager in the corporation, as it was a matter of public interest and administrative efficiency, and the petitioner had no legal right or entitlement to the post.
  • Reliance Energy Ltd. vs. Maharashtra State Road Development Corporation Ltd. (2007): The Supreme Court held that the doctrine of legitimate expectation cannot create a substantive right or entitlement in favour of the respondent company to get the contract for the construction of a bridge, as it was subject to the statutory provisions and the competitive bidding process, and the appellant corporation had the discretion to award the contract to the best bidder.
  • State of Bihar vs. Bihar Distillery Ltd. (1997): The Supreme Court held that the doctrine of legitimate expectation cannot be based on an illegal or irrational expectation, and the respondent company had no legitimate expectation of getting a renewal of its license to manufacture liquor, as it was contrary to the prohibition policy of the state government and the public interest.

I hope this helps you understand the restriction of legitimate expectation better. 😊

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Conclusion:

The doctrine of legitimate expectation is a principle of administrative law that grants a person the right to a fair hearing or a fair procedure when a public authority makes a decision affecting their interests. The doctrine is based on the idea that a person who has a reasonable expectation of a certain outcome from a public authority should not be disappointed by a sudden change of policy or action by the authority.

Doctrine of Proportionality

The doctrine of proportionality is applicable in cases where rights are violated by administrative action and the courts scrutinize administrative conduct specifically and go to court. Issue about the accuracy of the authority’s choices.

The ordinary sense of proportionality is that it should not be more extreme than it should be to achieve the desired results. It means you cannot use a canon to fire a sparrow. This philosophy, in other words, seeks to balance means with ends.

Irrationality as a ground and legitimate expectation to challenge any decision was developed by the Court in Associated Provincial Picture House v. Wednesbury, later to be known as the “Wednesbury test” to determine ‘irrationality’ of an administrative action decision of the administrative authority shall be deemed to be irrational.

  • if it is beyond the authority of law,
  • if it is not based on evidence,
  • if it is based on irrelevant consideration,
  • if it is so absurd in its violation of logic or established moral standards that no reasonable person may make such a decision on the facts and circumstances in question.

In other words, it is so ridiculous that no reasonable person would ever believe that it is beyond the jurisdiction of the government. In a practical sense, it is the use of the doctrine.

The doctrine of proportionality is a legal principle that states that the actions or measures taken by a public authority must be proportionate to the objective pursued. In other words, the authority should not use more force or impose more restrictions than necessary to achieve a legitimate goal.

The doctrine of proportionality is often applied in the fields of human rights, constitutional law, international law, and criminal law. For example, the European Court of Human Rights uses the doctrine of proportionality to assess whether the interference of a state with the rights and freedoms of individuals is justified and reasonable.

The doctrine of proportionality has four main components:

  • Suitability: The measure must be suitable or appropriate for achieving the objective.
  • Necessity: The measure must be necessary or indispensable for achieving the objective. There must be no less restrictive alternative available.
  • Proportionality in the strict sense: The measure must be proportional or balanced in relation to the objective. The benefits of the measure must outweigh the costs or harm to the rights and interests of the affected parties.
  • Fair balance: The measure must strike a fair balance between the general interest of the community and the individual rights of the persons concerned. The measure must not impose an excessive or disproportionate burden on individuals.

The theory of proportionality is applicable in cases where human freedoms are violated by administrative action. In such a case, the courts scrutinize administrative conduct specifically and go to court about the accuracy of the authority’s choices. Adverse effects on the right would therefore be weighed by the courts and the purpose sought to be accomplished, where the issue of the quantity of penalty levied by the regulatory authority is concerned, would not be subject to strict scrutiny. Courts follow the idea that while the quantity of punishment is beyond the regulatory authority’s control, it is important to prevent arbitrariness.

This concept can be called the’ deference concept, where the court shows consideration for the regulatory authority’s option except when the option is manifestly excessive.

When evaluating an administrative action on the grounds of proportionality Courts typically consider two issues, namely:

1. Whether the relative merits of specific objectives or interests have been properly weighed and equally balanced?

2. Whether the action under review was, in the circumstances, excessively restrictive or inflicted an unnecessary burden?

In Union of India v. G. Ganayutham  (1997) 7 SCC 463, the Supreme Court held that rule of proportionality is fully applicable in constitutional adjudication where the court has to decide on the reasonableness of a restriction on the exercise of fundamental rights. However, its application in the field of administrative law is still in an evolving stage. At the present, the doctrine is not available in administrative law in the sense that the court cannot go into the question of choice made and priority fixed by the administrator.

Om Kumar v Union of India (2001): This case concerned the fundamental right to equality and the power of judicial review. Om Kumar and other employees of the public sector undertakings challenged the government’s decision to reduce their salaries and allowances as part of a financial restructuring plan. The Supreme Court of India held that the government’s decision violated the right to equality, as it was not proportionate to the objective of reviving the public sector undertakings. The court applied the doctrine of proportionality and found that the government’s decision was not suitable or appropriate for achieving the objective, as it did not take into account the performance and efficiency of the employees. The court also found that the government’s decision was not necessary or indispensable for achieving the objective, as there were other less drastic measures available, such as reducing the managerial staff, improving the productivity, and enhancing the competitiveness. The court also found that the government’s decision was not proportional or balanced in relation to the objective, as it imposed an unreasonable and disproportionate burden on the employees, who were already underpaid and overworked.

State of Maharashtra v Bharat Shanti Lal Shah (2008): This case concerned the fundamental right to freedom of speech and expression and the power of preventive detention. Bharat Shanti Lal Shah and other film producers and distributors challenged the government’s decision to detain them under the Prevention of Terrorism Act (POTA), alleging that they had links with the underworld and were involved in financing terrorist activities. The Supreme Court of India held that the government’s decision violated the right to freedom of speech and expression, as it was not proportionate to the objective of preventing terrorism. The court applied the doctrine of proportionality and found that the government’s decision was not rationally connected to the objective, as it did not have any credible evidence or material to support the allegations against the detainees. The court also found that the government’s decision was not minimally impairing, as it used the most drastic and draconian measure of preventive detention, without exhausting the other legal remedies available, such as investigation, prosecution, and trial. The court also found that the government’s decision was not proportionate in its effects, as it caused severe and irreparable harm to the detainees’ reputation, livelihood, and liberty.

  • Anuradha Bhasin v Union of India (2020): This case concerned the fundamental right to freedom of speech and expression and the right to access the internet. Anuradha Bhasin, the executive editor of Kashmir Times, and other petitioners challenged the government’s decision to impose a complete shutdown of internet services in Jammu and Kashmir, following the abrogation of Article 370 of the Constitution, which granted special status to the state. The Supreme Court of India held that the government’s decision violated the right to freedom of speech and expression and the right to access the internet, as it was not proportionate to the objective of maintaining public order and national security. The court applied the doctrine of proportionality and found that the government’s decision was not suitable or appropriate for achieving the objective, as it was not based on any specific threat or exigency, but on a general apprehension of violence. The court also found that the government’s decision was not necessary or indispensable for achieving the objective, as there were other less restrictive measures available, such as blocking specific websites, imposing reasonable restrictions on the duration and area of the shutdown, and providing periodic review and oversight. The court also found that the government’s decision was not proportional or balanced in relation to the objective, as it caused immense and indiscriminate hardship to the people of Jammu and Kashmir, who were deprived of their fundamental rights, essential services, and economic opportunities.

Muslim law allows polygyny with equal treatment of wives.

Madras High Court held in Mukmuthu Sha v. Mohammed Afrin Ba

This is a complex and controversial topic that may have different opinions and interpretations. According to some sources, Muslim law, or Sharia law, allows a man to have up to four wives at a time, but only if he can treat them all equally and fairly. This practice is known as polygyny, which is a form of polygamy (having more than one spouse).

However, some Muslim scholars and activists argue that polygyny is not a religious obligation but a social custom that was prevalent in pre-Islamic Arabia and other regions. They claim that the Quran does not explicitly endorse polygyny but rather regulates and restricts it in certain circumstances. They also point out that the Prophet Muhammad’s first and most beloved wife, Khadija, was his only wife for 25 years until she died, and that he married multiple wives later in life for political and humanitarian reasons, not for lust or pleasure.

Some Muslim women’s rights advocates also challenge the notion that polygyny is fair and equal to women, as it often leads to jealousy, rivalry, neglect, and abuse among co-wives. They cite examples of how polygyny has been misused and abused by men who exploit women for their own selfish interests without fulfilling their responsibilities and obligations. They also argue that polygyny is incompatible with the modern values of democracy, human rights, and gender equality.

Therefore, the statement that Muslim law entitles husbands to polygamy, but he has to treat all wives equally, is not a simple or universal fact but a contested and nuanced issue that depends on the interpretation and application of the sources of Islamic law, the historical and cultural context, and the personal views and experiences of the individuals involved.

A Bench of Justices RMT Teeka Raman and PB Balaji upheld the decision of a family court in Tirunelveli which had passed an order of dissolution of marriage on the ground of cruelty.

The Bench noted that the husband and his family members initially tortured and harassed his first wife. He later performed a second marriage with another woman and has been living with her since.

“…he (husband) has not treated the first wife and the second wife equally as required under the provisions of the Islamic law. Under the Islamic law the husband is entitled to polygamous marriage however, he has to treat all the wives equally,” the judgment stated.

As per the first wife’s version, she was harassed by her husband and his mother and his sister. She stated that while she was pregnant, her husband and in-laws didn’t take proper care of her and even subjected her to cruelty by giving her food she was allergic to. She claimed that the mother-in-law scolded her for not properly draping a saree while she was pregnant. She further stated that after she had a miscarriage, her sister-in-law harassed her for not being able to bear a child.

Further, the wife claimed that her husband kept comparing her with some relatives and even disliked the food she prepared for him. When the torture and harassment became intolerable, the wife left the matrimonial house. The husband demanded her return, failing which he would marry a second time. The first wife claimed that her husband has been living happily with the second wife.  

The husband denied all the allegations. 

However, after going through the material on record, the Court noted that the wife successfully demonstrated that her husband had treated her unequally with his second wife and did not take her proper care of her. The Bench held that the husband even failed to perform his marital obligations towards the first wife.

“As a husband, he is duty bound to maintain the wife even while she was with her parents. If at all he is aggrieved by her separation, then he should have taken measures for reunion and if it failed then on reasonable grounds he could pronounce Talaq. But in the instant case, no such act was done by the husband and in fact he did not maintain the first wife and failed in his duty and has married another woman.”  

All these circumstances, the Bench said, prove that the husband meted out several cruelties to his first wife, as a result of which she returned to her parental home.

“Hence, we are of the view that the husband having not treated the first wife and the second wife equally, and the first wife clearly demonstrated the cruelties met out to her by the husband and that he failed to maintain her for two years. We therefore, are of the view that the findings of the Family Court that the husband treated the wife with cruelty and has not treated her on par and equally with the second wife and accordingly granted dissolution of marriage, is well merited and does not warrant interference,” the judgment stated.

With these observations, the Bench dismissed the husband’s appeal. 

X v. Union of India and Others

A bench of Justices Hima Kohli and BV Nagarathna delivered a split verdict in a case concerning the medical termination of pregnancy of a married woman who was in the 26th week of pregnancy.

The matter involved a married couple who had conceived a third time. The pregnancy had crossed the legally permissible limit of 24 weeks for abortions under the Medical Termination of Pregnancy Act, 1971 (MTP Act).

The Bench passed a split verdict, with Justice Kohli not being in favour of termination of the pregnancy. Justice Nagarathna opined that the view of the mother should be respected over claims of the viability of the foetus.

where a 27-year-old pregnant woman has filed a writ petition seeking abortion at 26 weeks of pregnancy due to various reasons. The case has progressed to the Supreme Court, and a Division Bench passed an order (referred to as ‘Order 1’) to constitute a Medical Bench for their opinion.

The Medical Bench, in its opinion, noted that the 26-week-old fetus was viable and had a reasonable chance of survival. However, it also identified potential risks to the petitioner’s mental and physical health, including the risk of post-partum psychosis and complications due to her previous two C-section deliveries.

In light of these findings, the Medical Board recommended that the petitioner allowed to terminate her pregnancy. This recommendation likely takes into account the balance between the viability of the fetus and the potential risks to the mother’s health.

In legal contexts, such cases often involve a careful consideration of the rights and interests of both the pregnant woman and the unborn child. The decision to allow or deny an abortion might be influenced by factors such as the health of the mother, the viability of the fetus, and any applicable laws or regulations in the jurisdiction.

In their Order dated October 9 October (‘Order 2’), the Bench took cognizance of several factors that favoured permitting abortion of the foetus:

Firstly, the petitioner expressed reluctance to continue the pregnancy due to some worries about the petitioner’s mental, physical and psychological health. The petitioner had categorically expressed her unwillingness to continue with the pregnancy, contrary to the claims of her counsel and the Additional Solicitor General, who claimed to have persuaded her to continue with the pregnancy.

Secondly, the petitioner suffered from post-partum depression, and had been undergoing treatment for it for over a year. There was an anxiety that the strong medicines prescribed to her would have an adverse impact on the foetus’ health.

Thirdly, the petitioner had conceived despite adopting the Lactational amenorrhea contraceptive method, which provides its users over 95% protection from pregnancy. In other words, there was a contraceptive failure, which is recognised as a ground for abortion by Explanation 1 of S. 3(2), MTPA.

Based on these factors, the Court allowed for the termination of pregnancy. The Court also acknowledged the importance of reproductive autonomy and cited X v Delhi, holding that the MTPA was to be interpreted in an “overarching and all-encompassing sense”.

The next day, UOI filed for a recall application, based on an e-mail sent by one of the members of the Medical Board, which requested a directive from the Supreme Court on whether the viable foetus’ heart was to be stopped before conducting the termination. As per the e-mail, not doing so would result in a preterm delivery, as opposed to a termination, and the preterm baby would be subject to a long stay in the intensive care unit and a high possibility of immediate and long-term disabilities.

Therefore, the question before the court was whether the fetus could be separated. Accordingly, the same court renders another judgment in its order dated October11, 2023 (“Order3”). In light of this email, Kohli J refused to authorize the abortion on the grounds that judicial conscience would not permit it, but provided no further explanation as to why the abortion was not authorized. Nagarathna, J., noted a new affidavit by the plaintiff, in which she acknowledged the factors mentioned in the email and stated that, of her own free will and without any outside pressure, she intentionally took a conscious decision. Ms. Nagaratna J. opined and found that, keeping in mind her delicate mental and socio-economic situation, the Supreme Court must respect the plaintiff’s decision. order 2

A three-judge bench was asked to consider the case after the split verdict, and in their final ruling on October 16, 2023 (the “Final Judgement”), they rejected allowing the termination. Given that the upper gestational statutory limit of 24 weeks had been reached, Chandrachud, CJ, held in final judgment that an abortion could not be performed. S. 5 could not be used because there was no urgent need to end the petitioner’s life, according to the Medical Board’s reports. Moreover, the Court expressed reluctance to order the cessation of the foetus’ heartbeat, citing its authority to administer “complete justice.” It was noted that the Petitioner shared this opposition.

Mustak Hussain Mehndi Hussain Kadri vs Jagdeep Narayan Singh, IPS

Cows are worshiped. This is why we said that God will not forgive us if a cow is killed: Gujarat High Court. Cows are revered in India, so much so that God would never forgive if they were killed and left to rot, the Gujarat High Court confirmed on Friday. The court made this observation while hearing the stray cattle intimidation case. While hearing the matter earlier this month, a bench of Justices Ashutosh Shastri and Hemant Pratyak took strong objections to the fact that a rotting cow carcass was found in a vacant land in Nadia area of ​​Kheda district. was chanting.

The judge then said orally that “not even God would condone such an act” and that animals should not be sacrificed solely for “public welfare” or to control the menace of stray cattle. He said no.
At today’s hearing, lawyers for some livestock farmers accused authorities of forcibly removing cows even though they were not roaming the streets. He also sought to highlight the poor conditions in the cowsheds where the livestock confiscated by authorities were kept.

“The conditions there (in the pound) are really bad, it’s overcrowded. “The animals are kept in cruel conditions,” the lawyer explained.

However, this claim was rejected by the authorities.
“We worship all cows before we take them (to stables). Claims such as overcrowding in stables are not true,” the government lawyer said.

“Yes, cows are worshiped and I had taken that view in the previous hearing,” Justice Shastri replied. The court was hearing a series of petitions seeking contempt of court against the state government and its officials for failing to curb the stray cow menace across Gujarat following reports of several people losing their lives in cattle attacks. The petition also highlighted that it does not regulate traffic laws in the state.

The court had last month directed the Ahmedabad Police Commissioner to ensure that adequate police protection is provided to city officials implementing court orders to combat the stray cow menace.
In previous hearings, the court criticized the state government for being slow to develop comprehensive policies to address the issue. the bank was watching

“When will the country understand that the safety and protection of its citizens comes first? Why not give it some serious thought? What is the responsibility of civil servants? I would like each region to appoint a person in charge of preventing cows from roaming on the roads. But you didn’t do anything. Are you waiting for someone to die?

At a previous hearing, the court had held that innocent animals should not be killed and left to rot due to the “menace of stray animals”.

“This is very shocking. You can’t do that in the name of compliance. This is a very worrying incident. Innocent animals cannot be sacrificed in the name of carrying out orders. For the sake of human life, this cannot be allowed. Even God cannot save us or forgive us when something like this happens. This must be ensured. Not a single animal should be sacrificed for the sake of public welfare. “We will not tolerate this,” the bank said at the time. After hearing concerns raised about the stables, the court today granted the cattle farmer’s attorney freedom to personally visit and inspect the stables.
The court today also heard Solicitor General Kamal Trivedi’s remarks on the state’s policy on proper implementation of traffic rules. AG Trivedi told the court that a number of steps have been taken to control illegal parking, wrong-way driving, drivers not wearing helmets, etc.

“We have also identified five accident-prone locations (in Ahmedabad). We have increased vigilance there and this will help ensure that no fatal accidents occur there,” Trivedi said. said. Considering the submissions and the affidavits on record, the court concluded that the government had taken progressive steps to address the traffic problem.
“But now everything depends on the people and their civic spirit. It is now up to them to abide by the rules and cooperate with the authorities in implementing the norms,” ​​Justice Shastri said.

The Court proceeded to ask the authorities to strictly implement the measures in place until January 5 and file a report.

“Let there be a strict vigil for the next 15 days or so. We will then again consider this matter,” the bench said while posting the matter for hearing on January 5.

Jaspreet Singh v. Roopali Dhillon

Man or woman may be bad for each other in a relationship but may be good parents for a child.

Even if competing parents make extreme claims, the court must consider the minor child’s best interests, not the legal rights of the parents, the court said. The Punjab and Haryana High Court recently held that a man and a woman can be bad parents in a relationship, but that does not necessarily mean they will be bad parents to their children. Justice Archana Puri ruled that the welfare of the minor child, not the legal rights of the parents, is paramount in custody cases.

“A man or a woman can be a bad person to someone in a situational relationship, but that doesn’t necessarily mean that person is a bad person to the child. A mother or father is a social A parent may be morally bad in some sense, but that parent may be good for the child. So-called morality is formed by society based on its own spirit and norms, and it does not necessarily mean that parents and children should not be reflected in a situational relationship,” the order states.

The court was hearing a father’s case challenging a court order denying him and his parents temporary custody of their minor daughter. The plaintiff’s father married the defendant’s mother in 2008 and their child was born in 2012. After a marital quarrel arose between the two, the two separated, and the child was left in the care of his mother. The father applied for custody of his minor daughter under Article 25 of the Guardianship Act. In deciding the application for temporary custody, the court concluded that there was no reason to transfer custody of the minor daughter to her father. However, the plaintiff’s father was granted visitation rights.

Before the High Court, the parties alleged bad behaviour on the part of the other.

After hearing the contentions, the Court observed that the matter is to be decided not on the consideration of the legal rights of the parties but on the criterion of what would be in the best interests of the child.

“When a couple is at odds and wants to separate, they may use extreme accusations against each other to make the other party feel unfit to have custody of the child. Unless and until there is evidence of bad behavior on the part of the parents that renders them unworthy of claiming custody of the child in question, the matter may be decided solely on the basis of questions such as And so it should be.” “If so, what happens to the welfare of the children involved?” “The court acknowledged that.”

Given that the child is now between 10 and 11 years old, the court acknowledged that the mother could be a best friend, guide, and mentor to her growing daughter. It has also been noted that at this stage, the child is more dependent on the help of the mother than the father.

The court ordered that the child be placed in the custody of the mother, while increasing the number of days the father could see the child from once a month to twice a month.

“During the course of such meetings, the parties are expected and desired to increase their mutual cooperation and create a comfortable atmosphere in which the child can have healthy interactions with the complainant,” the court said. clarified.

Parvej Khan v. State of Maharashtra & Ors.

The Aurangabad bench of Bombay High Court on December 19 directed the Maharashtra government to frame guidelines for conducting test identification parades (TI parades) in cases under the Protection of Children from Sexual Offenses (POCSO) Act. A test identification parade is to test the witness’s capability to identify, from among several persons, an unknown person whom the witness has seen in the context of an offence. The state government was instructed to create a standard operating procedure (SOP) to protect the victim’s information while taking part in the TI parade by a division bench of Justices Vibha Kankanwadi and Abhay Waghwase.

“We direct the state to develop appropriate guidelines to be followed when organizing TI parades in cases falling under the purview of the Protection of Children from Sexual Offences Act, 2012, and to further recommend Standard Operating Procedure to be adopted, considering the victim’s confidentiality; additionally, we recommend that appropriate precautions be taken when forcing victims to participate in TI parades in order to identify perpetrators, along with the necessary infrastructure set up for the same,” the judge ruled. The person who was found guilty in 2018 of raping a young girl and given a life sentence in 2019 was appealing to the court.

The Court was astonished to note from the evidence that a minor victim of 6 years was made to appear in jail premises in order to identify the culprit amongst a line of dummies and she was asked to touch the perpetrator. The Court expressed serious concern at the disregard shown by the special executive magistrate for not complying with the procedure stipulated under the POCSO Act to take precautions to avoid confrontation between the accused and victim.

The Court also noted that medical experts and investigators had failed to take due care to follow guidelines for collection, preservation and documentation of evidence, including the doctor who failed to distinctly seal the biological evidence samples.

“We have noticed that in spite of directions issued by the Apex Court time and again regarding meticulous compliance of Standard Operating Procedure to be adopted during the collection of biological and non-biological evidence and its preservation to avoid its degradation and further maintain its integrity, the stakeholders, like medical experts, who conducted physical examinations of both the victim and accused and retrieved samples, as well as the police machinery and the forensic experts, have shown utter disregard for the procedure contemplated and spelled out in the form of guidelines,” the Court observed.

It directed the District Legal Services Authority to inquire into the current status of the victim and check whether she has received adequate compensation. It also directed the government to organise periodic sensitization programmes for all the stakeholders including the police, medical experts, forensic experts, and prosecutors.

“We take this opportunity to bring it to the notice of the State as well as prosecution that, all stakeholders like police, medical experts, forensic experts and even prosecutors to be sensitive to the need of proper collection, sampling, preservation and safe custody to rule out possibility of diminishing and/or degrading the quality of evidence. Such authorities need to keep themselves well informed and updated on the guidelines issued by Health Ministry/Home Ministry,” the bench ordered.

The Bombay High Court directs the state to frame guidelines for test identification parades in POCSO cases.

TRANSITION TO CAPABILITY FRAMEWORK

The term legal capability was derived from the very broad concept of “party capability”, which is the different strategic advantages and disadvantages a person or another party to a legal dispute can have Garth and Cappelletti used this concept as a starting point for analyzing the advantages of such a party in the context of debates about access to justice. Access to justice is a trending topic for legal scholars and practitioners. It refers to the recourses and remedies that are available to citizens to gain protection from the law and obtain redress in legal disputes within the areas of private and tort law (and, in rarer cases, public law) (e.g., if one has a conflict or dispute with a family member, neighbour, employee, employer, tenant, etc.). Garth and Cappelletti identified (1) financial resources, (2) one’s competence to recognize and pursue a claim or defense, and (3) repeated contact with (and therefore more in-depth knowledge of) the legal system as important when it comes to understanding what legal capability exactly entails. From the conceptual standpoint of the capability approach, none of these three items is a capability. The first is a resource; the second is a skill; and the third is an experience that one has, and hence also points to a skill rather than to a real opportunity.

The transition to a capability framework in ICT (Information and Communication Technology) in legal education is a significant shift that reflects the changing nature of legal practice in the digital age. As technology continues to transform the way legal services are delivered, it is becoming increasingly important for law students to develop the skills and knowledge needed to navigate this new landscape. A capability framework is a structured approach to learning that focuses on developing specific skills and competencies, rather than simply acquiring knowledge. In the context of ICT, this means that law students should be
encouraged to develop a range of digital literacy skills, including:

  1. Digital research: Law students should be taught how to effectively use online resources, such as legal databases and case law websites, to conduct legal research. This includes learning how to use advanced search techniques, how to evaluate the reliability and relevance of online sources, and how to properly cite online sources in legal documents.
  2. Digital communication: Law students should be taught how to effectively communicate using digital tools, such as email, instant messaging, and video conferencing. This includes learning how to write clear and concise emails, how to use digital tools for remote collaboration, and how to effectively present legal arguments using digital media.
  3. Digital collaboration: Law students should be encouraged to develop collaborative skills using digital tools, such as cloud-based document sharing and project management software. This includes learning how to effectively manage digital projects, how to collaborate with team members located in different parts of the world, and how to manage conflicts that
    arise during digital collaboration.
  4. Digital security: Law students should be taught how to effectively manage digital security risks, such as cyber threats, data breaches, and intellectual property theft. This includes learning how to use digital tools for secure communication and data storage, how to effectively manage digital security risks in remote work environments, and how to respond to digital security incidents.
  5. Digital innovation: Law students should be encouraged to develop innovative thinking skills using digital tools such as artificial intelligence (AI) and machine learning (ML). This includes learning how to effectively use AI and ML tools for legal research and analysis, how to develop innovative legal solutions using digital tools, and how to effectively manage the risks associated with emerging digital technologies.
    By developing these skills through a capability framework approach, law students will be better prepared for the challenges of practicing law in the digital age. They will also be better equipped to take advantage of the opportunities presented by emerging digital technologies, such as AI and ML tools for legal research and analysis. Ultimately, this will help to ensure
    that legal education remains relevant and effective in an increasingly digital world.

Traditional Content-Based Curriculum (Legal Education)

Traditional or content-based education mainly focuses on a predetermined curriculum. Students and teachers follow the textbook content and assess the students based on the exam results. On the other hand, the outcome-based education model focuses on the outcome the students will achieve after the course.

The traditional content-based curriculum, both globally and in India, is a teaching method that focuses on delivering predetermined content to students through lectures, textbooks, and other instructional materials. This approach emphasizes the acquisition of knowledge and skills through the memorization and recall of facts, concepts, and principles. In India, the content-based curriculum has been a part of the education system for several decades. It is followed in both primary and secondary schools, with a strong emphasis on subjects such as mathematics, science, and social sciences. The curriculum is designed to cover a wide range of topics in each subject area, with an emphasis on theoretical concepts and
problem-solving skills.


Globally, the content-based curriculum is also widely followed in many countries, particularly in developed economies where it has been associated with high academic achievement. The approach is particularly popular in subjects such as mathematics, science, and engineering, where a strong foundation in fundamental concepts is essential for success in higher education and professional careers. However, the content-based curriculum has also been criticized for its limitations. Some educators argue that it can be too rigid and inflexible, failing to account for individual differences in learning styles and abilities. It can also be too focused on rote learning and memorization, at the expense of critical thinking, creativity, and problem-solving skills. In response to these criticisms, some educators have advocated for a shift towards more student-centered approaches to learning. These approaches emphasize active learning, collaboration, and real-world applications of knowledge. They aim to foster critical thinking, creativity, and problem-solving skills that are essential for success in the 21st century workforce.


In India, there have been some efforts to incorporate more student-centered approaches into the curriculum. For example, the National Curriculum Framework (NCF), which was adopted by the National Council of Educational Research and Training, (NCERT) in 2005, emphasizes a holistic approach to learning that integrates various disciplines and encourages students to engage in active learning and collaborative activities. However, there are still challenges to implementing these approaches in
practice. Many teachers are not trained in student-centered teaching methods, and there are limited resources available to support these approaches. There is also a need for greater collaboration between educators, policymakers, and industry stakeholders to ensure that the curriculum remains relevant and responsive to the needs of students and society as a whole.

Conclusion:

Outcome-oriented learning aims to prepare students for the modern workplace. It encourages them to solve real-life problems and make real-world applications by offering value-added courses and technical training. The focus is on the clarity of concepts rather than memorizing content, concepts, or formulas within a prescribed time frame. The teachers are more like facilitators and are free to adopt creative ways while keeping the unique needs of the students in mind. Teachers are meant to probe, guide, and mentor and help the students engage in meaningful activities to build skills, understand perspectives, and inculcate attitudes like motivation and responsibilities.

The rapidly changing educational dynamics and plethora of employment opportunities with the push of digitalization demand a revised rule book for students to adapt to and acquire the necessary skillset to avail themselves of future opportunities.  To empower students with this skill set, it is essential to shift the dependency for evaluation from summative assessments to regular competency-based, learning- and development-oriented formative assessments.  The higher-order skills, such as analysis, critical thinking, and conceptual clarity, are informative assessments.

EFFORTS TO REVIEW LEGAL EDUCATION

Legal education is a mainstream education involving the study of law. It inculcates the ability to make use of law, to analyze it and to criticize it as a member of the legal community. It focuses on the individual freedom as also on the
development of society, solidarity and strengthening of rule of law. The progress of high-quality legal education is a prerequisite to high quality legal practitioners. Law is the guardian and vindicator of justice and liberty. Legal education involves the education of laws generally to lawyers before entry into law profession. Law of a society is the standard of its social values The need to assess and revise the curricula and methodologies of law courses with an objective to upgrade them for meeting the
new challenges and the needs of the society is felt worldwide.


Legal education may serve society by imparting to law students general and cultural education, making them good law-abiding citizens. The aim of legal education is to bring out among students the aptitude, interest, commitment, skills, and knowledge necessary to perform variety of roles in society including works for socially excluded people and the poor at the local level, to espouse the cause of justice. The rapidly growing Indian economy needs to update its legal education.
mechanism to suit the requirements of the competitive world.

Reviewing legal education is essential to ensure that it remains relevant, effective, and responsive to the evolving needs of the legal profession and society. There are several efforts that can be undertaken to review legal education. Engage with key stakeholders, including legal practitioners, judges, law students, alumni, and legal employers, to gather diverse perspectives on the strengths and weaknesses of the current legal education system. Regularly review and update the law school curriculum to incorporate emerging legal issues, technological advancements, and changes in societal needs. Ensure a balance between theoretical knowledge and practical skills. Implement assessment mechanisms to evaluate the effectiveness of legal
education in achieving its intended outcomes.

This includes assessing students’ legal knowledge, critical thinking skills, ethical awareness, and practical abilities.
Evaluate the incorporation of legal technology into the curriculum to prepare students for the changing landscape of legal practice. This may include training in legal research databases, e-discovery tools, and practice management software.
Assess the effectiveness of clinical programs, externships, and other experiential learning opportunities in providing students with real-world legal experience. Explore ways to enhance and expand these programs. Consider the integration of interdisciplinary courses that connect law with other fields such as business, technology, public policy, or healthcare. This
can provide a more holistic understanding of legal issues. Evaluate efforts to promote diversity and inclusion within law schools, ensuring that legal education reflects the broader societal makeup. Assess the inclusivity of the curriculum, faculty, and support services.


Review the emphasis on practical skill development, including legal writing, oral advocacy, negotiation, mediation, and client counseling. Ensure that graduates are well-prepared for the demands of legal practice. Assess faculty qualifications, teaching methodologies, and research contributions. Encourage professional development opportunities for faculty to stay current in their respective fields. Monitor the performance of graduates on bar exams and use the data to identify areas for improvement in the curriculum. Collaborate with bar examiners to align legal education with bar exam expectations. Consider incorporating international and comparative law perspectives into the curriculum to prepare students for a globalized legal environment. Regularly seek feedback from students regarding their learning experiences. Provide academic and career support services to address, students’ needs and concerns. Develop programs for continuous learning and professional development beyond graduation. Encourage a culture of lifelong learning among legal professionals.


Collaborate with accreditation bodies to ensure that legal education programs meet established standards and make necessary adjustments based on feedback and evolving expectations. Promote a culture of research and scholarship within law schools. Support faculty in producing high-quality legal research that contributes to the development of legal knowledge. By regularly engaging in these efforts, legal education can adapt to the changing legal landscape and better prepare graduates for successful and impactful careers in law. Ongoing collaboration between academia, legal practitioners, and regulatory bodies is crucial for the continuous improvement of legal education.