In this post we cover another legal concept, the doctrine of stare decisis as applicable to India, a tradition of common law. Literally it implies to be bound by one’s own decision i.e. to stand by what has been decided earlier. The doctrine, thus allows summary repulsion of claims upon which the Court has already decided earlier. The concept generally applies to the highest court of a country like the House of Lords of U.K. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. This has been aptly pointed out by Chandrachud, C.J. Waman Rao v. Union of India, (1981) 2 SCC 362 at pg. In Manganese Ore (India) Ltd. In Ganga Sugar Corpn. “8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent.
“33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. In Union of India & Anr. Paras Laminates (P) Ltd, (1990) 4 SCC 453 at pg. “9. It is true that a bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice.
Persons affected by decisions of tribunals or courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters”. It has been opined that in the absence of a strict rule of precedent, litigants would take every case to the highest court, in spite of a ruling to the contrary, in the hope that the decision may be overruled. In Tiverton Estates Ltd. Wearwell Ltd., (1975) Ch 146 at page 371, Sorman L. J., while not agreeing with the view of Lord Denning, M.R. “I decline to accept his lead only because I think it damaging to the law to the long term—though it would undoubtedly do justice in the present case. To some it will appear that justice is being denied by a timid, conservative adherence to judicial precedent. They would be wrong. The second observation we wish to make is, the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions.
The properties that are not exempted are then sold by the court-appointed bankruptcy trustee and sale proceed is distributed among the creditors. However, not all debtors are allowed to file it under this Chapter. The law has an eligibility factor in determining the eligibility of debtors to to file Chapter 7. The law has designed a “Mean Test” to evaluate debtor’s eligibility to file under this chapter. Mean Test is based on measures of income, a number of persons in the family, and allowable expenses. The debtors, who are not allowed to file Chapter 7 bankruptcy, can file Chapter 13 bankruptcy. Under this chapter, the debtors are required to submit a repayment plan for paying creditors. The repayment extends for 3-5 years. The court allows the debtor to keep a valuable property, mostly a house for his financial fresh start. However, debtors must have a regular income to be able to pay the creditors. The court approves the plan after considering the regular predictable income of the debtor and his repayment plan. When a person plans to file Bankruptcy, he/she has two available options, either file on his own, without a lawyer, or file through a lawyer.
Filing it without a lawyer is known as a “pro se” debtor under the Bankruptcy Code. The only advantage of filing on your own is you can save some money because there will not be any attorney to charge you his fees. However, filing bankruptcy through an experienced lawyer is highly recommended to debtors for a satisfactory outcome of his court proceedings and bankruptcy case. We interviewed leading Bankruptcy lawyer, James Smith, and sought his opinion on the importance of seeking legal advice from an experienced attorney. He identified few reasons for hiring an experienced bankruptcy lawyer by a debtor. Bankruptcy is a complex and complicated process, and only an experienced lawyer understands the pros and con of the bankruptcy process. The experienced lawyer is well-versed with State, Federal, and Local bankruptcy laws. He also understands local court proceedings and changes in the bankruptcy law. The lawyer guides you through the entire filing processes and court proceedings.
You may be confused under which chapter to file, but a lawyer will assess your financial and debt status and advise you whether to file under Chapter 7 or Chapter 13 bankruptcy. He will also tell you if filing bankruptcy petition is in your best interest or not after getting necessary information from you. The court rejects or delays your Application or filling if there are any errors. You can avoid these risks if you hire an attorney. Bankruptcy filing process includes a collection of documents and a large amount of paperwork. The court may also demand supporting documents. A lawyer can gather necessary documents for your bankruptcy process. Bankruptcy lawyer will keep you update with the court proceedings and case status every step of the way. James Smith also says that for the best outcome of your bankruptcy case and debt relief, a debtor must not hide anything from his lawyer. He should tell correct information about his properties, assets, debts, and financial status. He further informs that hiring experienced bankruptcy lawyer is beneficial to a debtor in the long run because any mistakes can cost you your case.
The Court of Appeal found against the Secretary of State. “The Government thinks that it was right in principle for Sharon Shoesmith to be removed from her post as Director of Children’s Services. “There are questions of constitutional importance involved in this case, beyond the specific question about whether Ed Balls should have had a further meeting with Sharon Shoesmith before removing her. “Our initial application to appeal has been turned down by the Court of Appeal. The case does not, as such, raise questions which might be considered to be of constitutional importance so it is necessary to ask just what is in the mind of Ministers in the present government. They appear to see judicial review as the judiciary exercising too much power and they are seeking ways to stem such judicial activism. The setting up of the Committee to consider a UK Bill of Rights may also be seen as part of this governmental agenda. Those with whom Baby-P lived carry the direct responsibility for his death. Tracey Connelly (Baby-P’s mother) pleaded guilty to causing or allowing the death of a child – Domestic Violence, Crime and Victims Act 2004 s.5.
Her boy friend Steven Barker and a lodger (Jason Owen) were convicted on 11th November 2008 of the same offence. Connelly was given an indeterminate sentence of imprisonment with a minimum term of 5 years. An appeal was abandoned. Barker was sentenced to 12 years imprisonment – this sentence to run concurrently with life imprisonment (minimum 10 years) for the rape of a child aged 2. He later lost an appeal against the rape conviction. Owen was sentenced by the trial judge to an indeterminate sentence of imprisonment but this was altered on appeal to a determinate sentence of 6 years. The conduct of the Joint Area Review and the actions of Ofsted are addressed at paragraphs 14 to 38 of the Court of Appeal judgment. Once the report was issued, the Children’s Minister (Mr Balls) met with the inspection team on 1st December 2008 and things were said to him which were not included in the actual JAR report – (Court of Appeal paras.
Strictly, given that those things were critical of specific persons, they could not have been properly included in the official Ofsted report. Later the same day there was a Press Conference at which the Minister stated that he was using his statutory power to remove Sharon Shoesmith from her post. This suggests either an instant decision was taken without full consideration of the report or it indicates the announcement of a preconceived decision for which the report was merely the required ammunition. It also indicates that the Minister wished to appear tough and decisive before the media. One might think that this is a regrettable trait of many a modern Minister. The Press Conference was held before the Minister had taken what might be thought to be the proper constitutional step of informing Parliament – (Court of Appeal 44 refers). Representatives of Haringey Council met with Ofsted representatives on 1st December 2008 and managed to secure a change of wording to the report -(Court of Appeal 23). Shoesmith was excluded from this meeting.
The Court of Appeal’s judgment in relation to the Secretary of State is at paras. The details of Mr Balls’ Press Conference of 1st December 2008 are set out at paras. 44-47 of the Court of Appeal judgment. Shoesmith first heard of her removal by the Secretary of State when she saw the conference on TV – (Court of Appeal 48). Haringey suspended her the same day and confirmed in writing on 2nd December. Mr Balls had accorded her no procedural safeguards whatever before making the directions of 1 and 19 December which effectively ended her career. Foskett J was wrong to conclude that, even if there was procedural unfairness, the Secretary of State would have come to the same conclusion and made the same directions if procedural unfairness had been absent. Whilst I accept that there was a degree of urgency, I do not accept that it was such as to necessitate a truncation of the requirements of fairness to the extent that occurred here.
The question one has to ask is how much delay would have been occasioned by according Ms Shoesmith an opportunity to answer the charge. It seems to me that, as at 1 December, the delay need not have been more than modest and, in relation to 19 December, it may have been non-existent. This is not a case of a front-line social worker who may cause damage to individual children. It is one of a DCS, more than a year after the death of Peter, in circumstances where, one way or another, the position could have been safeguarded for sufficient time for fairness to be observed. The fact that the Secretary of State wrongly assumed that Ms Shoesmith had had the opportunity to put her case, including her case on personal responsibility, to the OFSTED team does not avail him. The question is whether the procedure, taken as a whole, was objectively fair, not whether the Secretary of State honestly believed that it was fairer than in fact it was. I have little to say about the Secretary of State’s regard to The Sun’s petition.
For my part, I do not consider that it was necessarily unlawful for the Secretary of State to have taken it into account. ] AC 407. He was legitimately concerned about public confidence and the petition may have had some modest value in that respect. However, it is unlikely that many of its signatories were aware of the complexities of employment law when they demanded dismissal without compensation. I now turn to the more important matter of the Judge’s “no difference ” finding. Thus, the extent to which media pressure influenced Mr Balls remains unanswered. It may be that such pressure had a greater influence than anyone is actually prepared to admit. To dismiss the Sun’s petition as having “modest value” may be questionable. Legally, the more difficult argument related to the judge’s finding of “no difference.” This is dealt with at paras. 69-74 but a reading of para 72 seems particularly important because it sets out the background in which Shoesmith worked. Could it be properly said that, if Shoesmith had been allowed to make representations, nothing she could have said would or could have made a difference?
The Court of Appeal concluded that it was not possible to reach that conclusion. The judgment in relation to Haringey is at paras. It was Haringey Council and not Mr Balls who had terminated Shoesmith’s employment. It was done summarily and without compensation or payment in lieu of notice. On 6th March 2009 Shoesmith issued judicial review and also commenced proceedings in the Employment Tribunal. The tribunal proceedings were stayed pending the outcome of the judicial review. Haringey’s case was that it had no alternative but to act as it did in the light of the OFSTED report and the Secretary of State’s statutory intervention. Two threshold issues had been raised before the Judge: (1) Was Haringey’s treatment of Ms Shoesmith amenable to judicial review? If so, ought the application to have been entertained in view of the alternative remedy available in the Employment Tribunal? Foskett J had held that they were amenable to review but that the alternative remedy was adequate. Held by Court of Appeal – (1) Haringey was amenable to judicial review (paras.
Next comes what is perhaps the most difficult legal question in the appeal relating to Haringey basing its decision to dismiss Shoesmith on the earlier decision of the Secretary of State. In January 2009, Shoesmith had an appeal against dismissal heard by a Panel of three Councillors. It was pointed out to them that the decision of Mr Balls was considered by Shoesmith to be unlawful. This is a question which has troubled administrative lawyers for many years and no clear answer can be stated with complete confidence. Plainly, this part of the Court of appeal’s judgment may probably require the Supreme Court’s attention so that the relevant legal principles can be clarified. However, one moral in the story is that decision-makers need to be careful in making decisions based on the decisions of others when it is known that the latter is open to question. From para 120 there is discussion as to whether Haringey had been entitled to base the dismissal on a “trust and confidence” basis.
The Court held that Haringey’s concern related to Shoesmith’s competence and capability rather that as to trust and confidence in the correct sense. Foskett J had decided that the decision to dismiss was judicially reviewable and he had decided this on the basis of 5 points set out at Court of Appeal para. 122. The very appearance of a predetermined dismissal without notice or payment in lieu seemed to the Court of Appeal to be sufficient to make good the charge of unfairness. In this section of the judgment, the Court of Appeal was careful not to tie the hands of the Employment Tribunal in relation to the stayed unfair dismissal proceedings. Against the Secretary of State a declaration that insofar as they purported to remove Ms Shoesmith from the position of DCS, the directions were unlawful. Against Haringey – a declaration that the dismissal was unlawful coupled with compensation. In 2010 a new version of Working Together to Safeguard Children was issued.
The tragic case of Baby-P raises serious questions as to how the State seeks to protect vulnerable children and how it responds when a tragedy occurs. The true responsibility for Peter’s death has to rest with those who were supposedly there to care for him and who managed to avoid social service and Police challenges to their conduct. After the dismissal of Shoesmith there was a second Serious Case Review carried out on the direction of Mr Balls. In the present financial climate, the government would do well to ensure that Child Protection Services are fully resourced and, if the turnover of social work staff still exists, to take whatever steps are practicable to prevent it. Continuity in case management is as important as objective oversight of the work of individual social workers. Both are essential ingredients. So, just what constitutional issues are raised here beyond the need for Ministers to announce decisions to Parliament and not the media? It seems that the present government is concerned to restrict judicial review. Here we are in dangerous territory. Surely, the most important constitutional point is that Ministers must act in accordance with law. Even at the time of the Baby-P case, the Secretary of State had far reaching statutory powers but the problem was the manner in which he exercised them. He failed to ensure that Shoesmith was given an adequate opportunity to make representations about his proposed courses of action. Here is the fundamental unfairness which it is the purpose of judicial review to rectify. Should this case reach the Supreme Court of the United Kingdom, it is to be hoped that the court asserts the necessity for judicial review to continue to play its crucial role.
2. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. 1. The two questions for consideration and discussion relate to the value of the testimony of alibi witnesses and the severability of a dying declaration. 3. Six relatives (by marriage) of deceased Asha Devi were accused of having murdered her and thereby having committed an offence punishable under Section 302 of the Indian Penal Code.
4. Asha Devi was married at the age of 16 to Jagdish who was employed in the army. According to her father, Asha Devi lived with Jagdish for about one year and thereafter she lived in village Bhojpur in district Jagadhari, Haryana, in a one room tenement along with her two children aged 5 years and 1½ years. Her in- laws were staying in an adjacent tenement. There is no allegation or evidence of any matrimonial disharmony between Jagdish and Asha Devi who had been married for about nine years nor is there any allegation of any demand or harassment for dowry from Asha Devi. 5. The case of the prosecution is entirely dependent on the dying declaration of Asha Devi. In her statement, Asha Devi stated that at about 12.00 noon on 4th April 1996 she was given a severe beating by all her in-laws. Thereafter, at about 3.00 p.m.
Rather, they suggested that she should be set ablaze. 6. On the morning of 5th April 1996, Asha Devi seems to have had a quarrel and in a fit of anger she broke her bangles. Upon this, Jumni said that she should be finished. Consequently, all her in-laws tied her up and poured kerosene on her and set her on fire. This was at about 7.30 a.m. 7. At about 10.30 a.m. Asha Devi was taken to the Civil Hospital at Jagadhari. Seeing her condition with 100% burns, the doctor on duty, Dr. M.R. Passi (PW-1) immediately informed the police who took urgent steps for having her statement recorded. Ms. Sarita Gupta, Judicial Magistrate, 1st Class (PW-9) was deputed for this purpose. According to Ms. Sarita Gupta, she recorded the statement of Asha Devi in the Civil Hospital between 11.22 a.m. “Stated that I was married at the age of 16 years. I am 25 years old.