Setalvad, Bar Exams, Disability

1. Gautam Patel’s moving obituary on Atul Setalvad is worth reading.

2. On Bar Exams – If the Bar Council is going to regulate entry into the profession using a separate bar exam, shouldn’t it get out of the business of regulating legal education? Does any one know if law schools are demanding autonomy as their fair share in the bargain?

Update: A reader says ‘KN Chandrashekharan Pillai and NS Soman of CUSAT School of Legal Studies have argued for precisely this in a recent article in the “Kerala High Court Cases”. I am sorry I cannot provide the citation as I don’t have access to this journal right now.’ Does anyone else have a scan/soft copy they can share?

3. Disability – In an apparently regressive judgment in Dalco Engineering v Padhye (March 2010), Justice Raveendran of the Supreme Court has held that the non-discrimination obligations under the Persons with Disabilities Act apply only to the State, and not to the private sector. The judgment fails to appreciate global trends where most democracies prohibit discrimination on the ground of disability in public as well as private sector. The case turned on the interpretation of section 2(k), which reads thus:
“establishment” means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;”
Interpreting this clause, the SC held that a company registered under the Companies Act is not ‘a corporation established by or under a Central … Act’. In light of precedents cited in the case, this appears to be an inescapable conclusion. Was it time to revisit those precedents? Or is it best to leave this for Parliament to clarify?

Subscribe
Notify of
guest

This site uses Akismet to reduce spam. Learn how your comment data is processed.

5 Comments
Inline Feedbacks
View all comments
work_in_progress
work_in_progress
11 years ago

Re: Atul Setalvad, Dilip D'Souza has written about how Setalvad valiantly fought the case for prosecution of Bal Thackeray here

http://dcubed.blogspot.com/2010/07/atul-setalvad.html

Re: point 2 – KN Chandrashekharan Pillai and NS Soman of CUSAT School of Legal Studies have argued for precisely this in a recent article in the "Kerala High Court Cases". I am sorry I cannot provide the citation as I don't have access to this journal right now.

Lawyer
Lawyer
11 years ago

I don't believe it is fair to describe the judgment as "apparently regressive". While most democracies may prohibit discrimination across the board, it is difficult to see how the Supreme Court can mirror that result. As for "revisiting precedent", the post has in mind presumably the decision in Dhanoa's case. But even assuming the court should have doubted that line of cases (which is not certain), the result would not have changed. S. 2(k), which is quoted in the post, mentions a corporation created by or under statute, and separately mentions a Government company under s. 617 of the Companies Act – indicating that a company created under the Companies Act cannot possibly qualify under the first part of the definition. In fact, I believe that the judgment is a good example of careful analysis of statute – since the words "under an Act" suggest at first sight that companies created "under" the Companies Act are covered as well.

Lawyer
Lawyer
11 years ago

@ Mr. Khaitan, I hate to belabor the first point, for I agree with your second. But I believe that careful analysis of statute is particularly important for "definition" sections of legislations, and I am not sure the statute admits of more than one plausible or reasonable reading. Since it is a settled principle that words in a statute are presumed not to have been used superfluously, each word must be given meaning. If the meaning the petitioners canvassed for is assigned to s. 2(k), it implies that not a word but an entire sentence – Government companies under s. 617 of the Companies Act – is unnecessary and serves no purpose. A similar interpretive approach is available (in another context) in Calcutta Gas Co. v. State of West Bengal and Tika Ramji v. State of UP.