This article is a roundup of all the landmark constitutional law judgments delivered and reported in the first half of 2025 inclusive of all the judgments that showcased consideration, interpretation and evolution of important constitutional law principles. The judgments in Part I of the four part series are as follows:
Abbreviations for various common terminologies in the judgments
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2007 Act — Kerala Anti-Social Activities (Prevention) Act, 2007 |
Advocates Act — Advocates Act, 1961 |
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A&C Act — Arbitration and Conciliation Act, 1996 |
ACR — annual confidential reports |
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AG — Advocate General |
Art. — article |
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Assn. — association |
AYUSH — Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy |
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BC — Backward Classes |
BLC — Bihar Legislative Council |
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CAD — Constitutional Assembly Debate |
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CB — Constitution Bench |
CG — Central Government |
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Co. — company |
COI — Constitution of India |
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Commr. — Commissioner |
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CPDR — Committee for Protection of Democratic Rights |
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DB — Division Bench |
DDG — Deputy Director General |
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DO — departmental order |
DSP — Deputy Superintendent of Police |
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EC — Ethics Committee |
ECI — Election Commission of India |
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ESP — Electrostatic Precipitators |
FIR — first information report |
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FR — fundamental rights |
GOI — Government of India |
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GOK — Government of Karnataka |
HC — High Court |
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HOD — Head of Department |
IO — investigating officer |
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IPC — Penal Code, 1860 |
JB — Judge Bench |
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JR — judicial review |
KCCA Act — Karnataka Contract Carriages Acquisition Act, 1976 |
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KMV Rules — Karnataka Motor Vehicle Rules , 1989 |
KSRTC — Karnataka State Road Transport Corporation |
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LC — lower courts |
LDCE — Limited Departmental Competitive Examination |
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LPA — letters patent appeal |
Ltd. — limited |
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ME — Micro Enterprise |
MLC — Member of Legislative Assembly |
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MMT — mandatory minimum turnover |
MoM — minutes of the meeting |
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MSEFC — Micro & Small Enterprises Facilitation Council |
MSEs — micro and small enterprises |
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MSMED Act — Micro, Small and Medium Enterprises Development Act, 2006 |
MV Act — Motor Vehicles Act, 1988 |
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NCH — National Commission of Homeopathy |
NCHA — National Commission of Homeopathy Act, 2020 |
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NITs — notice inviting tender |
PG — postgraduate |
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PNJ — principles of natural justice |
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PO — Presiding Officer |
PP — procurement policy |
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PSUs — public sector undertakings |
r/w — read with |
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SB — Single Bench |
SC — Supreme Court |
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S. — Section |
SL — State Legislature |
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The 1949 Act — Chartered Accountants Act, 1949 |
u/s — under Section |
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UOI — Union of India |
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UT — Union Territory |
w.e.f. — with effect from |
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WP — writ petition |
The judgments are as follows:
(1) Bernard Francis Joseph Vaz v. State of Karnataka1
(Delivered on 2 January 2025)
Coram: two-Judge Bench of Justices B.R. Gavai and K.V. Viswanathan
Authored by: Justice B.R. Gavai
The batch of appeals arose out of the judgment of the Division Bench of the Karnataka High Court passed in a batch of writ appeals filed by the landowners as well as the Karnataka Industrial Area Development Board (for short, “KIADB”) along with other private project proponents.
Factual matrix of the case
The land belonging to appellant landowners was acquired towards the development of an infrastructure corridor project connecting Bengaluru-Mysuru by a joint venture arrangement executed between the Government of Karnataka (for short, “GOK”) and Nandi Infrastructure Corridor Enterprise Limited (for short, “NICE”). Accordingly, the KIADB initiated a process of land acquisition, when in January 2003 a preliminary notification under the provisions of Section 28(1), Karnataka Industrial Areas Development Act, 1966 (KIADB Act, 1966) was issued. Thereafter in July 2003 upon consideration of the objections to the preliminary notification, final notification also came to be issued by the KIADB. However, no award was passed immediately for such acquisitions, when in November 2005 the physical possession of the lands of the appellants was taken over by the KIADB. The landowners preferred writ petitions challenging the acquisition proceedings, as also allotment of alternative residential sites of equal dimension, which all writ petitions were dismissed. However, liberty was granted to the landowner concerned for the framing of any rehabilitation program. Subsequently the High Court in another set of writ petitions directed the Government of Karnataka and KIADB to consider the representation of the landowners and pass appropriate orders as expeditiously as possible for framing the rehabilitation scheme.
Thereafter, on the basis of the legal opinion given by the Advocate General (for short, “AG”), the Special Land Acquisition Officer (for short, “SLAO”) decided to postpone the date of the preliminary notification from January 2003 to 2011 by way of deeming fiction, and accordingly, was an awarded for 11 acres of land. The award in the compensation therefore came to be determined based on guideline rates as prevailing in the year 2011. This was challenged by the project proponents, the private entities developing the NICE corridor, contending primarily that compensation ought to have been determined only on the basis of the market value of the land as on the date of the original preliminary notification of 2003, and that postponement by deeming fiction to 2011 by shifting the dates was clearly impermissible. Simultaneously the landowners also filed independent writ petitions and claimed that compensation must be computed and paid based on the date of current market value of the lands, applicable on the date of payment (i.e., year 2019). The Single and the Division Bench both, of the High Court, allowed the writ petitions of the project proponents, the private companies, holding that compensation ought to have been determined and paid as applicable on the date of issuance of the preliminary notification in 2003. It was further held that the SLAO had no power, authority or jurisdiction to shift the dates by postponing them from 2003 to 2011, which power was vested only with the Constitutional Courts to be exercised under Articles 226/32 of the Constitution of India.
Consideration and analysis by the Supreme Court
The Supreme Court, after scanning all the pleadings, observed that all the parties had challenged the legality, validity, and correctness of the award passed in April 2019, with the landowners claiming that they must be paid compensation on the market rates prevailing as in 2019. The said award was passed on the basis of a legal opinion given by the learned Advocate General, who stated that the enormous delay in passing of the awards must lead to recalculation of the market value as on the date of passing of the award be taken into consideration. The Supreme Court concurred with the view taken by the learned Single Bench that the SLAO could not have on his own shifted/postponed the date of preliminary notification for the purposes of recomputation of the compensation amount. It held that only Constitutional Courts exercising inherent powers under Article 226 or Article 32 can pass such orders. Relying on the judgments of Ram Chand v. Union of India2, Haji Saeed Khan v. State of U.P.3 and Competent Authority v. Barangore Jute Factory4, the Supreme Court reiterated that instead of quashing the entire land acquisition proceedings and causing prejudice to projects implemented in public interest, the appropriate course available for Constitutional Courts is to enhance the compensation amount by getting it recalculated by shifting/postponing the date of preliminary notification. The Constitutional Courts can shift the dates through a deeming fiction either to any particular year or the date on which physical possession was taken. This is because after the land acquisition proceedings have culminated and the public project has been implemented, no useful purpose would be served by quashing the initial preliminary notification. Even when the acquisition notification failed to meet the statutory mandate, being vague in nature, instead of quashing the acquisition exercise holistically the better course is to compensate the landowners for what they have been deprived of, which is the most appropriate course of action to be adopted by the court. Shifting of the date of notification for the purposes of enhancing compensation whenever there is enormous delay in its actual reimbursement is a routine course followed generally by the Constitutional Courts.
Right to property as a constitutional and a human right
Relying on the judgment of Tukaram Kana Joshi v. MIDC5, the Supreme Court held that the right to property is not only a constitutional, but also a “human right”. Further referring in this regard to Vidya Devi v. State of H.P.6 and Ultra-Tech Cement Ltd. v. Mast Ram7, the Supreme Court reiterated that obligation to pay a reasonable compensation in a time-bound manner flows out of Article 300-A, even though not expressly included thereunder. Forcibly dispossessing any person of his private property without following the due process of law is violative of both a human right as well as Article 300-A of the Constitution of India. Some amount of property right is an indispensable safeguard against tyranny and economic oppression of the government. Liberty cannot subsist without the support of property, which must be secured. Property itself is the seedbed, which must be conserved if other constitutional values are to flourish, a common consensus amongst all the political thinkers and jurists. In the Ultra-Tech Cement case, the Supreme Court even delineated seven sub-rights of the larger right to property under Article 300-A, which includes the duty of the State to sufficiently restitute and rehabilitate with the awarding of fair compensation to the landowner concerned.
Time is of the essence in determination and payment of compensation and once the compensation has been determined, the same is due to be payable immediately without any requirement of representation or request by the landowners. It is the duty cast on the State to pay such compensation to the land losers, otherwise there is an express breach of Article 300-A of the Constitution of India. The State cannot abdicate its constitutional and statutory responsibility of payment of compensation, even when the project is being executed by a private entity by arguing that its role was limited to initiating acquisition proceedings under the memorandum of understanding (MoU) signed with the private entities. The acquisition of any private land by use of the power of eminent domain by the State is coupled with the bounden duty and obligation on its part to ensure that landowners are paid compensation/awarded amount at the earliest. Such a conduct by the State after taking away the ownership of the land through acquisition is otherwise in contravention to the spirit of Article 300-A.
Applying the aforesaid principles to the facts of the instant case, the court held that the appellants herein had been deprived of their legitimate dues and payment of compensation for almost 22 years. Mentioning the off-quoted phrase, “money is what money buys”, the Supreme Court held therefore the compensation amount they could have got in 2003 will not carry any value in the year 2025. The delay in the present case is attributable completely to the officers of the Government of Karnataka and KIADB. Thus, the court found it a fit case to invoke Article 142 of the Constitution of India for directing shifting of the date for determination of the market value of the land in question. The court held that compensation cannot be awarded at the market value as prevalent in the year 2003, as the same would amount to permitting a travesty of justice and making the constitutional provision of Article 300-A a mockery. Ordinarily the court would have quashed the entire acquisition proceedings for the inordinate delay in awarding of compensation and issue a fresh acquisition notification under the newly enacted Land Acquisition, Rehabilitation, and Resettlement Act, 2013. However, the same would not only entail huge expenditure to the public exchequer, but also be prejudicial to the project, which already stands implemented completely.
Accordingly, the Supreme Court directed the SLAO to determine and award the compensation based on market value as prevailing on April 2019. The judgment of both the Division as well as the Single Bench was accordingly set aside, and the SLAO was directed to pass a fresh award within a period of two months from the date of judgment. The special leave petitions (SLPs) preferred by the landowners were allowed.
***
(2) Jyostnamayee Mishra v. State of Odisha8
(Delivered on 20 January 2025)
Coram: two-Judge Bench of Justices, J.K. Maheshwari and Rajesh Bindal
Authored by: Justice Rajesh Bindal
The challenge was laid to the order passed by the High Court, whereby the High Court set aside the order passed by the Tribunal in an application filed by the petitioner. The Supreme Court in the present appeal examined “whether an employee working as a peon could claim promotion to the post of tracer when the governing statutory rules prescribed that the post of tracer must be filled exclusively through direct recruitment”.
Factual matrix of the case
The petitioner was appointed on the post of peon with the State Government in 1978, where after serving for around 22 years, she sought appointment to the post of tracer. She claimed this appointment on the ground that she possessed necessary qualifications and had undergone the necessary training in the said regard. She also claimed parity with other identically situated officers who were granted the said benefit of promotion. The Odisha Administrative Tribunal (for short, “OAT”) directed the State Government to appoint/promote her as tracer or revert other persons without qualifications to the respective posts. In appeal preferred against this order of the Tribunal, the High Court set aside the Tribunal’s judgment on the ground that there was no provision in the applicable rules for the promotion of a peon to the post of tracer. The petitioner laid challenge to this judgment of the High Court before the Supreme Court contending essentially that she possessed the required qualifications and had been discriminated, when similarly situated employees had earlier been promoted as tracers already.
Issues before the court
The court framed the following issues for consideration:
1. Whether an employee working as a peon could claim promotion to the post of tracer when the governing statutory rules prescribed that the post of tracer must be filled exclusively through direct recruitment.
2. Whether appointment to such post could be made through internal departmental circulars, rather than through public advertisements.
Resolution of issues by the court
The court examined the Odisha Sub-ordinate Architectural Service Rules, 1979 (for short, “1979 Rules”) and found that Rule 5(1)(e) expressly provided that all posts of tracer in Categories I, II and III shall be filled exclusively through direct recruitment only, and not through promotion.
The court observed that the post of tracer did not appear in the promotional hierarchy under Rule 6. Therefore, a peon had no statutory right to seek promotion to the post of tracer. Accordingly, the court held that the Tribunal’s directions for promotion were contrary to the statutory scheme. The court further noted that Rule 7, 1979 Rules prescribed detailed procedure for direct recruitment including, publication of advertisements in newspapers and Odisha Gazette, thereafter the eligible candidates are then required to be called for a written test and an interview on the basis of which a merit list is to be prepared. Although the parties extensively argued that whether the petitioner possessed the prescribed qualifications for the post of tracer, the court held that it was unnecessary to decide that issue since the post itself could not be filled through promotion, so the question of the petitioner’s eligibility became irrelevant.
The petitioner relied on instances where two other similarly situated employees had allegedly been promoted from the post of peon to the post of tracer. Answering this aspect, the court relied on the judgment in R. Muthukumar v. TANGEDCO9 and held that Article 14 does not require the State to repeat an illegality merely because similar illegal benefits were granted to others in the past. A person cannot demand equal treatment in illegality. Wrongful promotions granted earlier cannot create a legal right in favour of another employee. Therefore, the petitioner could not claim parity based on earlier irregular appointments.
A major portion of the judgment is the court’s criticism of the manner in which the litigation was conducted. The court found that the statutory 1979 Rules were repeatedly described as mere departmental orders. Incorrect and poorly typed copies of the rules were placed before the court, and the State failed to bring the relevant statutory provisions to the notice of the Tribunal despite several rounds of litigation. This negligence led to unnecessary and prolonged litigation. The court by referring to the judgment of Saumya Chaurasia v. Enforcement Directorate10 observed that the advocates and State authorities owe a duty to assist the courts by placing accurate facts and documents on record.
Conclusion
The court accordingly dismissed the petition holding that the petitioner had no enforceable right to seek promotion to that post. The court further ruled that previous illegal promotions could not be relied upon to claim equal treatment under Article 14. In strong observations against the State, the court criticised the failure of government authorities to produce the relevant statutory rules and noted that such negligence resulted in decades of avoidable litigation.
***
(3) T.N. Cements Corpn. Ltd. v. Unicon Engineers11
(Delivered on 22 January 2025)
Coram: three-Judge Bench of Justices Sanjiv Khanna, Sanjay Kumar and Manmohan
Authored by: HM Justice Sanjiv Khanna
The court, while granting the leave in the present petition, addresses an important question concerning the writ jurisdiction of the High Courts under Article 226 to entertain writ petitions against statutory dispute resolution mechanism established under the provisions of the Micro, Small & Medium Enterprises Development Act, 2006 (for short, “MSMED Act”). The controversy arose from the proceedings before the Micro and Small Enterprises Facilitation Council (for short, “MSEFC”), where an award had been passed in favour of a supplier. The principal question before the court was whether a party can directly invoke writ jurisdiction against the orders or awards made under Section 18, MSMED Act despite the availability of statutory remedy under the Arbitration and Conciliation Act, 1996.
Factual matrix of the case
Tamil Nadu Cements Corporation Limited (for short, “TANCEM”), a government owned undertaking, invited tenders for the supply, installation and commissioning of Electrostatic Precipitators (for short, “ESP”) for its cement manufacturing units. Unicorn Engineers was awarded the contract and undertook the execution of the project.
Subsequently, disputes emerged between the parties regarding various aspects of the performance of the contract, outstanding payments and alleged financial losses. Invoking the provisions of the MSMED Act, Unicorn Engineers approached the MSEFC seeking recovery of its dues together with statutory interest. Conciliation proceedings were initiated, however the dispute remained unresolved. The Council thereafter proceeded to determine the matter and directed Tamil Nadu Cements Corporation Limited to pay a certain amount along with interest. Aggrieved by the decision, Tamil Nadu Cements Corporation Limited pursued multiple legal remedies. It challenged the award through proceedings under the Arbitration and Conciliation Act, 1996; questioned the constitutional validity of certain provisions of the MSMED Act and also approached the High Court by filling the writ petition. The High Court declined to grant relief, primarily on the grounds that adequate statutory remedies were available. This led to the appeal before the Supreme Court.
Issue before the court
The singular issue for resolution was whether a writ petition under Article 226 of the Constitution of India was maintainable against an order passed by the MSEFC in exercise of Section 18, MSMED Act, and if yes, under what circumstances.
Consideration by the court
The court emphasised the jurisdiction conferred upon High Courts by Article 226 is constitutional in character and cannot be curtailed by any ordinary parliamentary legislation. While courts generally insist that litigants exhaust available statutory remedies before invoking the jurisdiction, such a requirement, however, is based on judicial prudence rather than a complete absence of jurisdiction. The court reiterated that the doctrine of alternate remedy is intended to promote orderly administration of justice and not to extinguish constitutional remedies. Relying upon established precedents, the court observed that High Courts may still entertain writ petitions where exceptional circumstances exist, viz. when violation of principles of natural justice; action taken without jurisdiction; challenges to the constitutional validity of statutory provisions and cases where statutory remedy is ineffective or inadequate. The court therefore rejected the proposition that the availability of a statutory appeal or challenge mechanism creates an absolute prohibition against invoking Article 226.
The judgment examined the framework of Section 18, MSMED Act, which provides for conciliation followed by arbitration where settlement efforts fail. The court noted that disputes before the MSEFC are integrated with the arbitration regime created by the Arbitration and Conciliation Act, 1996. However, the court recognised that questions had arisen regarding the legality of certain actions undertaken by Facilitation Councils, including situations where the same body conducts conciliation and subsequently acts as an Arbitral Tribunal. These concerns had generated conflicting judicial opinions. A significant aspect of the judgment is its discussion of earlier rulings, particularly the decision in India Glycols Ltd. v. MSEFC, Telangana12. The court noted that the legal principles emerging from previous cases were not entirely harmonious and that uncertainty persisted regarding the maintainability of the writ petitions against the MSEFC awards. Because of these inconsistencies; the recurring nature of the controversy, and its impact on commercial litigation under the MSMED Act, the court referred the matter to a larger Bench of five Judges. The reference was intended to obtain authoritative answers regarding whether writ petitions against MSMEC awards are maintainable despite statutory remedies; the circumstances in which writ jurisdiction may be exercised notwithstanding alternative remedies and the legal consequences arising from the dual role played by the MSEFC in conciliation and arbitration proceedings.
Conclusion
The court did not finally determine the maintainability of the writ petitions against awards passed under Section 18, MSMED Act. Instead, while reiterating that the rule of alternative remedy ordinarily discourages direct recourse to writ jurisdiction, the matter was referred to a larger Bench for a definitive pronouncement on the scope of judicial review in disputes arising under the MSMED Act and the Arbitration and Conciliation Act, 1996.
***
(4) Tanvi Behl v. Shrey Goel13
(Delivered on 29 January 2025)
Coram: 3-Judge Bench of Justices Hrishikesh Roy, Sudhanshu Dhulia and S.V.N. Bhatti
Authored by: HM Justice Sudhanshu Dhulia
The issue before the larger Bench of the Supreme Court was whether residence-based reservation in PG medical courses created by the State is constitutionally valid. The reference was constituted to answer further as to what extent the institutional preference seats can be filled if residence based/domicile-based quota is unconstitutional.
The case arose out of reservation made for the PG medical courses to the extent of 50 per cent in the various government medical colleges in Chandigarh (Union Territory). The candidate to be eligible for this domicile-based reservation must have submitted a certificate obtained from the principal of any school/college that he is a resident of Union Territory Chandigarh or his parents have been residing or have resided in Chandigarh for at least five years. Candidates who had done their MBBS from any medical college in Chandigarh were also eligible. The High Court on a challenge laid to these provisions, declared the said reservation of PG medical seats on the basis of requirement of residence as unconstitutional and cancelled the admissions of all such students admitted against these seats. The Supreme Court appeal initially referred the matter for consideration by the larger Bench after granting an interim order to the students. The Supreme Court thus considered whether such a reservation is permissible or not within the constitutional scheme of Articles 15 and 16 of the Constitution of India.
The Supreme Court tracing the history of constitutionality of various reservations made in medical courses then referred first to the judgment of Pradeep Jain v. Union of India14, followed subsequently in the Constitution Bench judgment of Saurabh Chaudri v. Union of India15, which categorically held that residence-based reservation is not permissible in PG medical courses. The Constitution Bench of Supreme Court in Saurabh Chaudri case further held that, apart from institutional preferences, no other preferences, including residence is envisaged under the Constitution of India. A reasonable degree of residence-based reservation in any State was made permissible only in the MBBS undergraduate (UG) courses in the judgment of Pradeep Jain case, but however, it was proscribed in PG courses.
Concepts of “domicile”, ”residence” and ”permanent residence”
Whilst determining the validity on the grounds of “domicile” or “residence” or “permanent residence”, the court held that all the three terms, despite being different from each other, are used loosely/casually as interchangeable to each other. Referring to the Halsbury’s Laws of England16, the court explained domicile as “the legal system which invokes that system as his personal law”. It is primarily a legal concept for the purposes of determining what is the personal law applicable to an individual. The concept of “domicile” acquires importance only when within a country there are different laws or more precisely different systems of laws operating. However, that is not the case in India, where each citizen of this country carries a “Single Domicile”, viz. “Domicile of India”. The concept of regional or “provincial domicile” is completely alien to the Indian legal system which is governed by a singular unified constitution and the laws. Therefore “domicile” cannot be loosely or casually used in place of “residence” or “permanent residence”, since the import of both is entirely different and the court condemned the said approach. Referring to the judgment of the Bombay High Court in State v. Narayandas Mangilal Dayame17, the court held that under Article 5 of the Constitution of India Indians have only one “domicile”, which remains the same throughout its territory, and the very concept of a provincial or State “domicile” is a misconception.
Thereafter explaining the concept of “permanent residence” or “residence”, the court held that the subtle difference between Articles 15 and 16 of the Constitution of India is that whereas Article 15 uses the word “place of birth”, Article 16 employs the term “residence”. Only Parliament under Article 16 is authorised to enact a law prescribing requirement of “residence” for State employment. The reason behind this was explained ably by Dr Ambedkar during the Constituent Assembly Debates (for short, “CAD”), who stated that the Constitution of India cannot allow people who are flying from one province to another, from one State to another as mere birds of passage without any roots, without any connection with that particular province, just to come, apply for posts, take the plums and walk away. Therefore, “residence” may not be a ground for discrimination in matters relating to employment, but in situations which necessarily demand prescription of “residence” within any State or Union Territory as an essential qualification, Parliament (and not the State Legislatures) is empowered to make a law for that purpose, so as to ensure uniformity throughout India on this.
Article 15 does not bar the State from making “residence” as a requirement for admission in medical colleges or like matters. Relying on the judgment of D.P. Joshi v. State of Madhya Bharat18, Article 14 does not speak of “residence”; it only speaks of place of birth and both the concepts are different. The “residence” requirement therefore has to pass muster under Article 14 of the Constitution of India, even if the Parliament or the State enacts legislation for any special purpose enshrined thereunder providing “residence” as a criterion.
The court then held that certain reservation at the MBBS level is always permissible for the residents of that State, since it has to take into consideration local needs, backwardness of the area, the expenses borne by the State in creating the necessary infrastructure, etc. However, when we talk about the PG level of medical education, the higher the level of specialty, the lesser the role of reservation. Considering the importance of specialist doctors in PG medical courses, reservation at the higher level on the basis of “residence” would be violative of Article 14.
The court also referred to host of other judgments, viz. Magan Mehrotra v. Union of India19, Nikhil Himthani v. State of Uttarakhand20, Vishal Goyal v. State of Karnataka21 and Neil Aurelio Nunes (OBC Reservation) v. Union of India22, which all had followed the judgment of Pradeep Jain case23. All the judgments held in one voice that “residence” based reservations are not permissible in PG medical courses.
Accordingly, holding the reservation of seats on the basis of “residence” requirement to be unsustainable and unconstitutional, the court held that the 32 seats could not have been filled on the basis of “residence”. The court had, at the same time further held that “institutional preference” to a limited extent, say up to 50 per cent of the seats, is permissible in PG medical courses.
Accordingly, the various clauses in the brochure issued by the Government Medical College, Chandigarh, imposing the “residence” requirement for reserving the seats therein were struck down as unconstitutional. However, since the admissions that were already effected and students had been studying in pursuance of the earlier interim orders of the court, their admissions were not disturbed. The reference made to the larger Bench was therefore accordingly answered in light of the aforesaid observations.
***
(5) Krishnadatt Awasthy v. State of M.P.24
(Delivered on 29 January 2025)
Coram: three-Judge Bench of Justices Hrishikesh Roy, Sudhanshu Dhulia and S.V.N. Bhatti
Authored by: Justice Hrishikesh Roy
The matter was posted before the larger Bench on account of split verdict rendered by the two learned Judges of the Supreme Court in relation to the validity of appointments made for the post of school teachers in Janpad Panchayat, Gaurihar in 1998. The civil appeals were filed by 10 persons, who were stated to be relatives of the Selection Committee and finally selected by the Committee. The selection of the appellants (as relatives of the Select Committee) was set aside on account of rule against bias in the process of selection. Whereas Justice J.K. Maheshwari upheld the finding to set aside the selection, the other Judge, Justice K.V. Viswanathan however upheld the selection, citing inter alia breach of the right to a fair hearing. The conflict in the present matter therefore related to two foundational principles of natural justice (for short, “PNJ”), i.e. the rule against bias (nemo judex in causa sua) and the right to a fair (audi alteram partem) hearing.
Factual matrix of the case
The appellants were appointed in September 1998 which was challenged on the ground that certain members of the Select Committee were related to them. The selection process was vitiated in its entirety due to nepotism, corruption and bias on the part of the selecting authority. Referring to Section 100, Madhya Pradesh Panchayati Raj Avam Gram Swaraj Adhiniyam, 1993 (for short, “Panchayat Act”) the Collector without issuing notice to any of the successfully appointed selectees and relying on Section 40(c) and 100, Panchayat Act held that office-bearers could not have facilitated financial gains to their relatives and thus all the appointments were set aside. The Commissioner in revision affirmed the order passed by the Collector, by relying on the admission of the fact regarding relationship of the appellants with the members of the Select Committee as noted in the reply filed by the Chief Executive Officer of the Janpad Panchayat.
The challenge both before the Single Bench as well as the Division Bench of the High Court also failed, which held that no actual prejudice had been caused to the writ petitioners, more so when full opportunity of hearing was granted at the revisional stage by the Commissioner.
When the matter reached the Supreme Court, the split verdict came as stated earlier.
Issues for consideration
The Supreme Court framed the following issues for its consideration and resolution:
1. Whether the selection process is vitiated for violation of the first limb of natural justice, i.e. rule against bias?
2. Where is it a case of violation of the principle of audi alteram partem? Is demonstration of prejudice necessary to succeed with a claim of violation of the principle of audi alteram partem?
3. Whether the breach of the principle of audi alteram partem at the original stage can be cured, at the revisional stage?
In re: Issue 1: Whether whole selection is vitiated on the ground of “rule against bias”
The court whilst answering the first issue, referred to the provisions of the Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 (Panchayat Rules), specifically Rule 5 thereunder. The statutory rules clearly provided for the composition of the Selection Committee, which included all members of the Standing Committee. The Standing Committee passed a resolution specifically on the issue of the recusal, which resolution categorically stated that if near relative of any member/officer of the Selection Committee is participating, then such member or officer should not be present on the date of interview and any impartial person should be kept in its place. The presence and participation of such near relative should completely be ruled out. The court also referred to Section 40(c), Panchayat Act, which explained the meaning of expression relative. The Explanation to Section 40(c) reads thus:
40. Removal of office-bearers of Panchayat. — (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office-bearer—
…
(c) the use of position or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for extending any pecuniary benefits to any relative, such as giving out any office-bearer of Panchayat.
Explanation.—For the purpose of this clause, the expression “relative” shall mean father, mother, brother, sister, husband, wife, son, daughter, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law:
The court then proceeded to briefly discuss the jurisprudence on appropriate test for examining the existence of bias and applicable standards of proof in such cases. Holding that the said “rule against bias” finds its origin in English law, specifically, the judgment of R v. Sussex25, followed by R v. Gough26. The precedents of Indian Courts were also referred to specifically the recent judgment in Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV)27, wherein the Constitution Bench of the Supreme Court specifically adopted the test of “Real Danger of Bias” or “The Real Possibility of Bias” from the perspective of a reasonable or a fair-minded person. The court further held that none of the authorities examined whether the mentioned members of the Select Committee fell within the four corners of the statutory definition of relative as provided under the Explanation to Section 100(C), Panchayat Act. The said discussion was never undertaken by any of the adjudicatory authorities and the challenge thereof on the ground of bias gets severely diluted. In view of the resolution of recusal, the relative members did not participate in the interview, owing to which the reasonable likelihood of bias cannot be reasonably inferred. Thus, the allegation of bias was without any foundational footing, since there was no material to show that the selected candidate or his relative had influenced their selection.
Referring to the judgments of J. Mohapatra & Co. v. State of Orissa28 and Charanjit Singh v. Harinder Sharma29, the court held that whenever the applicable statute explicitly mandates the composition of the Selection Committee, then the “doctrine of necessity” shall be attracted. The “doctrine of necessity” recognises that decision-making bodies need to function even in circumstances where potential conflicts of interest may arise. If the interested members recuse, do not participate and did not award any marks during the selection process, then applying the doctrine of necessity will protect the overall selection process. However, the applicability of the “doctrine of necessity” has to be tested based on the size of the jurisdiction, availability of the qualified persons and the level at which selection takes place.
The court further held that where the concerned relative member of the Selection Committee desists from participating and interfering his relative, by withdrawing entirely from the selection process when his relative appears for interview, then “rule against bias” will not vitiate the selection process. Referring to the Constitution Bench judgment in Ashok Kumar Yadav v. State of Haryana30 and Jaswant Singh Nerwal v. State of Punjab31, the court held that selection is not vitiated on account of violation of the nemo judex rule, when in the instant case, admittedly by virtue of the resolution on recusal the relative members of the Selection Committee did not participate in the overall selection process culminating in the selection of the appellants.
In re: Issue 2: Demonstration of prejudice as a precondition for constituting violation of principles of natural justice
Referring to the judgment of Ridge v. Baldwin32, court reiterated that the principle of audi alteram partem lies at the heart of procedural fairness. The opportunity of hearing is considered so fundamental to any civilised legal system that principles of natural justice have been read into any enactment by the Constitutional Courts to save it from being declared unconstitutional on procedural grounds. Referring to the judgment of S.L. Kapoor v. Jagmohan33, the court held that non-observance of principles of natural justice is in itself prejudice to any man and proof of prejudice independently prejudice to any man and proof of prejudice independently arising out of the said denial of principles of natural justice is unnecessary. The only exception to this general principle is that wherever on the admitted or undisputable facts, only one conclusion is possible and only one penalty is permissible, then the court may not compel the observance of principles of natural justice. A distinction therefore must be made between “no opportunity at all” vis- à-vis “no adequate opportunity”. In the former, the order passed would undoubtedly be invalid but in the latter the violation of principles of natural justice has to be examined from the standpoint of prejudice. Referring further to the judgments of Dharampal Satyapal Ltd. v. CCE34 and Mohd. Rafiq v. State of M.P.35, the Supreme Court reiterated that it is not permissible for the authority to jump over the compliance of principles of natural justice by stating that even if hearing would have been provided, it would have served no useful purpose. Such things can never be presumed by the authority. Referring further to a recent most judgment in Madhyamam Broadcasting Ltd. v. Union of India36, the Supreme Court reiterated that courts decide whether the procedure that was followed per se infringed upon the right to fair and reasonable procedure, independent of the outcome. The requirement of fair and reasonable procedure, encompassing core of principles of natural justice guarantees is a constitutional requirement entrenched under Articles 14, 19 and 21 of the Constitution of India. Non-observance of principles of natural justice is itself a prejudice to any person.
Applying the aforesaid principles to the facts of the case at hand, the court held that it was a case of disputed facts, especially in light of the resolution for recusal and whether actually the relatives influenced the outcome of the selection process in favour of the appellants. Since the order was passed by the Collector without even impleading the petitioners, there was a total violation of principles of natural justice, which violation therefore was of a fundamental nature, a prejudice in itself. The absence of notice to the aggrieved parties was a breach, which struck at the fundamental core of procedural fairness. It was also contrary to the express statutory provisions that required an opportunity to show cause, an opportunity to provide self-defence, as also encapsulated under Rule 9, Panchayat Rules, which required opportunity of hearing to the parties both at the appellate and the revisional stage. The court read in the requirement of hearing even at the original stage by falling upon this provision of Rule 9.
In re: Issue 3: Curability of denial of principles of natural justice at the initial stage by the appellate/revisional authority
Referring to the judgments of Australian High Court in Australian Workers’ Union v. Bowen (No. 2)37 and that of the House of Lords in Walter Annamunthodo v. Oilfield Workers” Trade Union38 and Leary v. National Union of Vehicle Builders39, the Supreme Court reiterated that failure of principles of natural justice at the initial stage cannot be cured at the appellate/revisional stage.
The House of Lords observed in the case of Leary that if right to a fair trial is conferred by applicable rules and provisions, then aggrieved person cannot be expected to be satisfied with an unjust trial and a fair appeal against thereto. Even if the appeal is treated as a hearing de novo, the member is being stripped of his precious right to appeal to another body from the effective decision on merits to expel him. No litigant, who is denied the opportunity of principles of natural justice can be told that he ought to be satisfied with an unjust trial and a fair appeal.
The court accordingly held that provision for an appeal rest on testing the order of the subordinate authority on merits and not on the assumption that appellate body is infallible. The initial decision itself for want of compliance of principles of natural justice fails to provide meaningful guidance to the appellate authority in achieving a fair and just resolution. The Supreme Court in the process relied upon the judgments of Institute of Chartered Accountants of India v. L.K. Ratna40, State of U.P. v. Mohd. Nooh41 and Mysore SRTC v. Mirja Khasim Ali Beg42.
Applying the aforesaid principles to the facts of the instant case, the court held that an ineffective hearing at the initial stage before the Collector therefore tainted the entire decision-making process, leading to a cascade of flawed orders at all subsequent stages. Providing a hearing at the initial stage to the affected individual minimises the risk of administrative authorities making decisions in ignorance of facts or other relevant circumstances, allowing all pertinent issues to be brought to light and to be meditated by the authority passing the original order. Therefore, the defect at the initial stage cannot generally be cured at the appellate stage, even when a full jurisdiction may be available with the appellate authority. The courts must have the discretion to relegate it to the original stage for an opportunity of hearing where violation of principles of natural justice is alleged.
Accordingly, the larger Bench of three Judges upheld the opinion of Justice K.V. Viswanathan, setting aside the judgment of the Division Bench of the High Court. Since the selection pertained to the year 1998 and appellants had continuously held their office and performed their duties for over 25 years under interim orders, the court held that remand for a fresh inquiry to the original authority would be causing further injustice to them. The reference was accordingly answered, and the appeal was allowed on the aforesaid terms.
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(6) S.R.S. Travels v. Karnataka SRTC43
(Delivered on 6 February 2025)
Coram: two-Judge Bench of Justices Vikram Nath and Prasanna B. Varale
Authored by: Justice Vikram Nath
The batch of special leave petitions arose out of the judgment of the Division Bench of the Karnataka High Court which had decided upon the validity of the 2003 Repeal Act, repealing the Karnataka Contract Carriages Acquisition Act, 1976 (for short, “KCCA Act”), as also to the validity of Rules 55 and 56, Karnataka Motor Vehicle Rules (for short, “KMV Rules”). These batch of petitions were preferred by the private bus operators; Karnataka State Transport Authority (for short, “STA“); Karnataka State Road Transport Corporation (for short, “KSRTC“).
Factual matrix leading to the judgment of the Division Bench of Karnataka High Court
The Karnataka State Legislature enacted the KCCA Act for acquiring privately operated contract carriages to curb the alleged detrimental operations in the State and to bring them under public control. Thus, all corresponding permits as well as certificates of registration stood vested in the State Government, which were thereafter transferred to the Stat e-owned KSRTC. The validity of this enactment was affirmed by the Supreme Court earlier on the ground that the objectives and purpose of the KCCA Act was to further the directive principles of State policy under Article 39(b) and (c) of the Constitution of India, and thus it did not infringe any fundamental rights or constitutional principles.
The Motor Vehicles Act, 1988 (for short, “MV Act“) was enacted by the Parliament for the purposes of regulating the ownership, movement and grant of permits to carriages and vehicles. Section 68(2) provided for Karnataka State Transport Authorities and Regional Transport Authorities (RTAs). It further empowered the Karnataka State Transport Authority to perform the duties of the Regional Transport Authority and authorised them to delegate their powers through rules made in this behalf to any other authority or person subject to prescribed restrictions. In July 1989, the Karnataka Motor Vehicle Rules (for short, “KMV Rules“) came to be enacted, whereunder, by virtue of Rules 55 and 56, Regional Transport Authorities and Karnataka State Transport Authoritiess were empowered to delegate their powers to their Secretaries, including the power to grant contract carriage permits. The constitutionality of the KCCA Act was also affirmed earlier by the Supreme Court in Vijay Kumar Sharma v. State of Karnataka44 holding that there is no inconsistency or repugnancy between the KCCA Act and the MV Act. It is in this backdrop that the 2003 Repeal Act, repealing the KCCA Act, came to be enacted, titled as the Karnataka Motor Vehicles Taxation and Certain Other Laws (Amendment) Act, 2003 (for short “2003 Repeal Act”). Repeal Act was enacted with the intent to liberalise public transport, encourage private operators, and address the woeful shortage in passenger services.
The constitutionality of the 2003 Repeal Act as well as the Rules 55 and 56, KMV Rules (permitting the Karnataka State Transport Authorities to delegate their powers to secretaries) were challenged before the High Court, when the Single Bench struck down 2003 Repeal Act. The Single Bench further held that Rules 55 and 56, KMV Rules are null and void as ultra vires the MV Act, since the delegation of the essential functions to be performed by themselves of the Karnataka State Transport Authority/ Regional Transport Authority could not have been delegated to the secretaries.
Eventually the matter reached the Division Bench, which partially set aside the judgment of the learned Single Bench. It affirmed the constitutional validity of the 2003 Repeal Act upholding the same. However, on the validity of Rules 55 and 56, it maintained the view of the learned Single Bench.
In view of the above, the matter reached the Supreme Court on resolution of both the issues.
Issue 1: Validity of the 2003 Repeal Act
The court held that the power to repeal any law is co-extensive with the power to enact it. The KCCA Act, which was found useful and necessary by the State Legislature, was with the evolving circumstances, found to be possessing deficiencies in the existing regulatory framework, especially when the necessity was felt to liberalise the transport sector. The transport landscape in Karnataka underwent significant changes between 1976 to 2003, so much so that the restrictive regime established by the KCCA Act was contributing to an artificial scarcity of public transport services particularly in rural and semi-urban areas. Thus, examining the statements of objects and reasons, when the need for change in policy was felt, the repeal cannot be treated as arbitrary. Any repeal statute does not recreate the legal framework anew, but rather extinguishes operative provisions of the earlier enactment. It is not subject to the same procedural requirements as an original enactment (including the need for fresh Presidential assent), till and until the repeal enactment also falls within the legislative competence of the State.
The repeal of the KCCA Act was thus a deliberate policy decision for ushering in a more dynamic and responsive transport framework and thus could not therefore be treated as nullifying a well-established judicial precedent or the judgments of the Supreme Court affirming the validity of the earlier KCCA Act. Referring to the judgment of Ram Krishna Ram Nath v. Janpad Sabha45, the Supreme Court reiterated that the power to repeal any law is co-extensive with its power to enact such a law. Since the KCCA Act was enacted under Entry 42, List II, Schedule VII, and its repeal was effected under Entry 57 of the same list, an entry relating to taxation State Government clearly had the legislative competence to do so. It reflects a conscious legislative choice to adapt to new economic and social conditions.
Issue 2: Delegation of power to grant permits
The Supreme Court then examined whether the powers of Karnataka State Transport Authority can be delegated, specifically regarding the issuance of contract carriages, special permits, and tourist and temporary permits to its secretary. Referring to Section 68(5), MV Act, which permitted the Karnataka State Transport Authority/Regional Transport Authority to delegate its powers and functions to any authority or person subject to such restrictions by virtue of the rules, the court held that if the rules are framed under Section 96, MV Act, the powers can be delegated by the Karnataka State Transport Authority/ Regional Transport Authority to any officer. Observing that only the grant of stage carriage permits was excluded from delegation, it reflected the legislatures intention clearly, viz. routine and time-sensitive permits, such as contract carriages, special, tourist, and temporary permits can be effectively processed through delegation. This was done to ensure that administrative functions are not unduly delayed by the need for a full Board’s involvement. Even though the grant of permits by the Karnataka State Transport Authority was a quasi-judicial function, such functions can also be delegated if the enabling statute expressly provides for such delegation. Since the Karnataka State Transport Authorities is entrusted with a wide range of responsibilities under the MV Act and its workload necessitated delegation to ensure timely service delivery, therefore delegation could not be faulted for ensuring administrative efficiency in the overall regulatory regime of the transport enactment. The delegation of routine functions that do not require the full deliberative process of the Karnataka State Transport Authority otherwise is always permissible. Referring to the judgment of Newtech Promoters & Developers (P) Ltd. v. State of U.P.46, the court held that even quasi-judicial functions can be delegated if the statute permits it and appropriate safeguards are introduced in place. Even otherwise, Section 68(5), MV Act permitted specifically the delegation of powers.
Accordingly, in view of the foregoing analysis, the court partially affirmed the judgment of the Division Bench of the Karnataka High Court insofar as it upheld the validity of the 2003 Repeal Act and set aside that part of the judgment, which declared Rules 55 and 56, KMV Rules as ultra vires the MV Act. The appropriate authorities and officers were directed to take all necessary measures for ensuring that the delegation of permit-granting power is exercised in a manner consistent with the statutory provisions.
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(7) Vihaan Kumar v. State of Haryana47
(Delivered on 7 February 2025)
Coram: two-Judge Bench of Justices Abhay S. Oka and N. Kotiswar Singh
Authored by: Justice Abhay S. Oka
The principal issue related to violation of appellant’s right under Article 22(1) of the Constitution of India, as the appellant was not informed of the grounds of his arrest. The appellant was arrested in relation to commission of various offences registered under the provisions of IPC. He was arrested on 10 June 2024 at around 10.30 a.m. from his office premises. There was contradiction in the registration of the timings of the FIR and the petitioner averred that he was never informed of the grounds of his arrest. Apart from this, the petitioner immediately arrested was admitted to the hospital. In the hospital also, he was handcuffed and chained to the hospital bed, which triggered the High Court to call for a report from the Medical Superintendent of Post Graduate Institute of Medical Sciences (PGIMS).
Right to be informed of the grounds of the arrest as interpreted by SC
Referring to the provisions of Article 22(1) of the Constitution of India, Section 50 CrPC (Section 47 BNSS) and Section 19 PMLA, the court held that arrest under Section 19 PMLA can never be effected till the time the investigating authority has “reasons to believe” that any person has been guilty of a PMLA offence, which “reason to believe” must have been recorded in writing. However as juxtaposed to the provisions of the PMLA, the requirement of recording of “reasons to believe” in writing is not existing under Section 41(1). Referring to the judgment of Pankaj Bansal v. Union of India48, the court co-related the necessity of communication of grounds of arrest to the accused to ensure that he is in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence and entitled to relief of bail. The necessity and requirement of the communication of the grounds of arrest is meant to serve this higher purpose and must be given due importance. Non-compliance of this mandatory requirement automatically entails the release of the arrested person straightaway as also held in V. Senthil Balaji v. State49.
The other laudable purpose of impressing upon this requirement is that it enables such person to seek legal counsel, assistance and thereafter present a suitably fit case before the competent court to seek release on bail. Referring again to the judgment of Prabir Purkayastha v. State (NCT of Delhi)50, the court held that language used in Article 22(1) and (5) regarding the communication of grounds are exactly identical. They cannot be seen separately or disjuncted from each other. Any infringement of these fundamental rights vitiates the whole process of arrest and the consequential order passed by the competent court under Section 167 CrPC. Referring further to the judgment of Lallubhai Jogibhai Patel v. Union of India51, the Supreme Court reiterated that the word “communicate” so employed under Article 22(5) is a strong word which means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detinue in writing, in the language which he understands. The grounds cannot be stated to be only verbally explained but must be communicated in “writing”, lest the constitutional mandate under Article 22(5) stands infringed. The communication has to be in such a manner that it provides sufficient knowledge of the basic facts to enable the detenu/accused person to be apprised of the allegations on which he is sought to be taken into custody.
Applying the ratio of the discussion undertaken by it to the case at hand, the court held that the grounds of arrest must exist with the investigating authority before the same are informed. There must be a contemporaneous record which records what the grounds of arrest were, on which the accused was proceeded to be arrested. Whenever any arrestee accused pleads before the court that grounds of arrest were not communicated to him, the burden to prove the compliances in Article 22(1) shifts in favour of the police.
The court further held that Section 50 cannot have the effect of diluting the constitutional requirements of Article 22(1), lest it will itself become unconstitutional. Though Section 50 only stipulates the requirement of communicating the full particulars of the offence of which the person is arrested to him, it cannot be contended that the requirement to communicate the grounds of arrest stands dispensed with, despite it being so prescribed under Article 22(1). In short, the requirement of Section 50 is in addition to and not in derogation of what is provided under Article 22(1). Whatever has been observed about Section 50 shall apply squarely to Section 47 BNSS. It is the bounded duty of the Judicial Magistrate before whom the arrested person is produced for remand to examine whether compliance with Article 22(1) has been made or not. If there is non-compliance, the arrest is rendered illegal and the arrestee cannot be remanded once the arrest is rendered illegal. The remand order also becomes vulnerable and legally unsustainable.
Accordingly, the court returned the various conclusions in view of the foregoing discussion and holding obligation of the investigating authorities.
Applying the principles discussed above to the facts of the case at hand, the court held that it was specifically pleaded that the appellant was not informed of the grounds of his arrest, which vitiated the legality of the arrest. The contention and averment of the appellant was not sufficiently rebutted by the investigating authority in their counter-affidavit. The court further held that the communications of the ground of arrest to the wife of the arrestee is no compliance within the mandate of Article 22(1). Rather it should be informed firsthand to the appellant himself at the time of his arrest.
Mentioning of the grounds of arrest in the remand report is no compliance or substitute of the requirement of informing the arrestee. The information about the arrest cannot be confused with the information about the grounds of arrest, and that mere information of arrest will not amount to furnishing the grounds of arrest. The person who is arrested may simply discharge his burden by pleading on affidavit that he was not informed about the grounds and if such an allegation is made in the petition, the investigating authority is duty-bound to respond to it and justify the legality of the arrest.
The court further directed the State of Haryana to issue guidelines/departmental instructions to the police to ensure that whenever the accused is hospitalised, he should not be handcuffed, nor should he be tied to the hospital bed.
The supplementing opinion of Justice N. Kotiswar Singh further observed that the constitutional mandate of Article 22(1) of the Constitution of India has been incorporated vide Sections 50 and 50-A CrPC, which makes it obligatory to the officer effecting arrest to inform about the arrest to the friends, relatives of persons nominated by the arrested person. This statutory provision aims at ensuring that the friends, relatives or nominees of the arrested person can take immediate and prompt actions to secure the release of the arrested person as permissible under the law. Thus this requirement under the provisions of the CrPC must be rigorously and scrupulously followed as a facet of the mandate of Article 22(1) of the Constitution of India.
Accordingly, the appellant was directed by the Supreme Court to be released forthwith and set at liberty. The appeal was allowed, declaring the arrest of the appellant to be illegal.
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(8) Amaragouda L. Patil v. Union of India52
(Delivered on 12 February 2025)
Coram: two-Judge Bench of Justices Dipankar Datta and Manmohan
Authored by: Justice Dipankar Datta
Challenge was laid to the judgment of the Division Bench of Karnataka High Court, which set aside the judgment of Single Bench, quashing the appointment of respondent as Chairperson of National Commission of Homeopathy (for short, “NCH”).
Factual matrix of the case
The Parliament enacted the National Commission of Homeopathy Act, 2020 (for short, “NCHA”), governing the field of education and Homeopathy. Vide Section 4 of the said NCHA, minimum eligibility to the post of Chairperson has been provided as an experience with recognised degree of not less than 20 years in the field of Homeopathy, out of which at least 10 years shall be as the leader in the area of healthcare delivery. Leader is defined as “Head of Department or Head of an Organisation” (for short, “HOD”). The appointment was to be effected on the basis of the recommendation of the search committee consisting of senior officials of the Central Government, including the Secretary, AYUSH (Ayurveda, Yoga & Naturopathy, Unani, Siddha, and Homoeopath) to the Government of India. In view thereof, applications were invited through an open advertisement, in person to which 37 applications were received. The search committee so constituted under Section 5 recommended the name of the private respondent along with others for appointment as the Chairperson of National Commission of Homeopathy. In pursuance thereof, the private respondent came to be appointed as the Chairperson formally, which was thereafter laid challenged before the Karnataka High Court at the behest of the petitioners before the Supreme Court.
Proceedings before the High Court and views of SB and DB
The Single Bench on a challenge being laid to the appointment of private respondent as the Chairperson on the ground that he never possessed the requisite experience as Head of Department or Head of an Organisation and was thus not eligible, set aside the same by quashing it. The matter was thereafter taken before the Division Bench by way of writ appeal, which set aside the judgment of the learned Single Bench, allowing the inter court appeals. The Division Bench held that since the petitioner had held the post of Assistant Director though below the rank of Director General, the work and responsibilities entrusted to the Assistant Director are independent and constituted performing the role of Head of Department or Head of an Organisation. Once the search Committee found the appellant to be eligible and possessing the requisite experience, could not be faulted with, nor its decision as an expert body interfered. In the absence of allegations of mala fide being attributed to the members of the Selection Committee, therefore the appointment could not have been set aside by the Single Bench.
Consideration by the Supreme Court
When the matter was taken up in appeal before the Supreme Court, the court called for original records pertaining to the appointment of the private respondent, especially the minutes of the search committee and the documents behind recommendation and appointment of the private respondent as Chairperson, CCH.
The court on perusal of the minutes of meeting (for short, “MOM”) of the search Committee found that it made no reference at all to the DO of the Secretary, Government of India (Member of Search Committee) who mentioned that the third respondent was eligible in all aspects since he had held the post of Assistant Director as well. Rather it had itself in its previous stages doubted the eligibility and qualification of the third respondent to be appointed to the said post. The court then answered the contention of the respondent Union of India that judicial review of the decision of experts is impermissible. It held that limited scrutiny for ascertaining the eligibility of the aspirants; the procedure followed in the selection and whether the duly qualified aspirant has been selected or not by following a fair procedure in consonance with the statutory rules or not can always be examined by the Constitutional Courts. It held that in the present case there was no material before the search Committee to have evaluated and concluded that the third respondent was eligible and having 10 years’ experience as the Head of Department or Head of an Organisation.
The court then proceeded to explain what “Head of Department or Head of an Organisation” in the present case would imply and how it would be interpreted. Referring to the judgment of Alka Ojha v. Rajasthan Public Service Commission53, the court held that Chairperson, being the head of NCH carries significant importance and affects various stakeholders in the field of education of Homeopathy. The qualifications prescribed therefor for appointment to the said post are clearly mandatory in nature, and the term “Head” is referable to a position held by an incumbent who performs the role of a leader, tasked with making substantive decisions for the department/organisation.
Referring to the responsibilities discharged by an Assistant Director (Homeopathy), the court held that the head of the technical section is clearly the Deputy Director General (for short, “DDG”), who controls the technical section and Assistant Director after all reports to the DDG; thus the duties cannot be held to have resembled the duties of Head of Department or Head of an Organisation and discharge of mere supervisory functions will not accord him the status of being an Head of Department or Head of an Organisation. Thus, the third respondent never qualified the eligibility and essential qualifications of being Head of Department or Head of an Organisation before taking over entire charge of the technical section in terms of the office orders issued by the Government of India and fell short of the requisite experience resultantly. The court also wondered how the Secretary, Government of India could have reflected an opinion and determine the equivalence of the post of the Assistant Director (Technical) as that of Head of Department or Head of an Organisation in the absence of any material. Referring to the judgment of N.P. Verma v. Union of India54, the court held that the court is always empowered to see and examine equivalence of different posts in accordance with the principles stated in the said judgment. The said equivalence of two posts can be determined by the court by relying on various factors such as —1) qualifications and requirements, 2) job responsibilities and duties, 3) work environment and conditions including workload and pressure, 4) accountability and impact, and 5) evaluation of the above and comparison.
The court ultimately concluded that the Secretary, Government of India therefore without any material, without satisfaction of any of the factors above determined the equivalence, which was therefore completely without any basis. It held that the instant case showed an egregious departure from the eligibility requirements and the procedure contemplated under Sections 4 and 5 NCHA.
On the limited scope of judicial review available to the Constitutional Courts, relying upon its earlier judgments in University of Mysore v. C.D. Govinda Rao55, Mahesh Chandra Gupta v. Union of India56 and Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi57, the court held that whenever an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it ceases to be a matter only between the appointing authority and the appointee concerned. The court cannot perpetuate a fraudulent practice, when it appears on record that the appointee to such high public offices lacks the mandatory minimum qualifications. The court thus categorically returned a finding that the third respondent misrepresented his work experience for being considered for the said coveted post of Chairman, NCH. Referring to the judgment of Sushil Kumar Pandey v. High Court of Jharkhand58, the court held that in the matter of essential qualifications prescribed by the statute there should neither be any deviation from the statutory requirements nor the advertisement inviting applications for the said post. On the observation of Division Bench that mala fide against the members of the Selection Committee were not proved and therefore no case for interference was made out, Court held that the Division Bench erred by overlooking that interference by courts can be made when “legal malice” or “malice in law” is demonstrated to exist. Referring to the judgments of Kalabharati Advertising v. Hemant Vimalnath Narichania59 and R.S. Garg v. State of U.P.60, the court held that anything done without lawful excuse, wilfully, without reasonable or probable cause with an oblique or indirect object can be treated as a “legal malice”. Referring further to the judgment of Swaran Singh Chand v. Punjab SEB61, the court held that even when malice of fact is not alleged, non-compliance of the State’s own directions by itself or its instrumentality amounts to “malice in law”. The Union of India was therefore found to have exercised a power for a purpose through its Secretary ,AYUSH, which was clearly foreign to that for which that power in law was conferred or intended. The act of appointment of third respondent as Chairperson therefore suffered from “malice in law”.
Such a conduct amounts to a fraud on the public to make appointments in departure of either the statutory requirements or a public advertisement, which fraud unravels everything. The Supreme Court being the protector of rights of citizens cannot allow a proven fraud to be continued, since it militates against reason as well as morality.
Accordingly allowing the appeal and setting aside the judgment of the Division Bench of the High Court, the Supreme Court quashed the appointment of the third respondent.
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(9) Policy Strategy for Grant of Bail, In re62
(Delivered on 18 February 2025)
Coram: two-Judge Bench of Justices Abhay S. Oka and Ujjal Bhuyan
Authored by: Justice Abhay S. Oka
The Supreme Court initiated the suo motu proceedings for determining the scope of power of the appropriate Government to remit whole or part of the sentence of the convicts. The matter essentially revolved around Section 432 CrPC (Section 473 BNSS). These provisions confer power on the appropriate Government of remitting whole or part of the punishment to which an accused has been sentenced with or without conditions. The court framed various issues for being answered by it relating to the power to grant remission and various questions associated with it. They are as follows:
Power to consider remission without any application made on behalf of the convict
Referring to the judgment of Sangeet v. State of Haryana63, the court held that exercise of powers under Section 432 CrPC cannot be made suo motu, but only through an application for remission specifically preferred by the convict in this regard. This eliminates discretionary or en masse release of convicts on “festive occasions”, since each release requires a case by case basis scrutiny. Suo motu power to grant remission cannot be exercised. Referring further to the judgment of Mohinder Singh v. State of Punjab64, the court further held that requirement to make an application is statutorily provided under Section 432 CrPC and thus any of the relatives of the convict can make an application in this regard.
However, if the prison manual or the policy of the State or any specifically worded policy of the State empowers the Superintendent of Prisons to initiate proceedings for grant of permanent remission, then the requirement of submitting an application can be dispensed with. In such cases, eligible prisoners must be considered based on policy parameters. It becomes an obligation of the State Government or the Union Territory to consider cases of all its eligible convicts without any discrimination if the convicts are otherwise eligible for consideration in terms of the policies.
The necessity of having a policy
The court then examined the necessity of having a transparent, fair and reasonable policy for the authorities to exercise their power of grant of remission. This policy enables them to exercise their powers in a fair and rational manner, which must preferably be incorporated in the prison manuals of the State. Such a policy is to be enacted under Section 432 CrPC.
The court further held that conditions can be imposed whilst granting remission by the competent authority concerned. Referring to the judgment of Mafabhai Motibhai Sagar v. State of Gujarat65, the court held that the conditions however should not be arbitrary, fanciful or be violative of the convict’s rights under Article 21 of the Constitution of India, but must be reasonable. It must be such that the same ensures that the criminal tendency of the convict remains in check, they do not indulge in the commission of crimes and they are suitably rehabilitated in the society.
Revocation of grant of remission and requirement of recording reasons in support thereof
The court then considered the next issue about the legal effect of breach of terms and conditions on which remission was originally granted to the concerned convict. Referring to the judgment of Mafabhai Motibhai Sagar case, the court held that mere registration of a cognizable offense against the convict per se cannot be a ground to cancel the remission order.
Rather the appropriate Government must consider the nature of the breach alleged against the convict; the seriousness and the gravity attached thereof. Reasons must be briefly recorded by the appropriate Government for cancellation of the order of remission. If the requirement of recording reasons is not read into the statute, the convict will never be in a position to defend the proceedings. Principles of natural justice must be read into the provisions of Section 432 CrPC.
Referring to the judgment of Bilkis Yakub Rasool v. Union of India66, the court held that reasons for grant or refusal of remission should always be clearly delineated in the order and also communicated to the convict in a manner duly comprehensible to him. The court also made extensive reference to the Standard Operating Procedure (SOP) framed by NALSA in the said regard, wherein it is provided that the convict must be duly informed of the factum and reasons for rejection of his prayer for premature release.
Accordingly, the court returning its findings, observations and directions on the aforesaid issues arising before it, directed the Legal Services Authorities of all the States and Union Territories to enable them to monitor implementation of the directions issued under its judgment.
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(10) Sunil Kumar Singh v. Bihar Legislative Council67
(Delivered on 25 February 2025)
Coram: two-Judge Bench of Justices Surya Kant and N. Kotiswar Singh
Authored by: Justice Surya Kant
The petitioner by way of Article 32 writ petition challenged his expulsion as a Member of the Legislative Council (for short, “MLC”) so issued by the Bihar Legislative Council, relieving him from the membership of the Bihar Legislative Council on the basis of recommendation report submitted by the Ethics Committee of the Bihar Legislative Council. The impugned order was issued by the Bihar Legislative Council Secretariat. The allegation against the petitioner was that he had used derogatory expressions as a Member of Legislative Council within the house of Bihar Legislative Council against the Chief Minister and the ruling party, by mocking and passing insinuatory remarks against the newly elected Chief Minister. This triggered complaints against the petitioner and another Member of Legislative Council member before the Bihar Legislative Council with the matter referred for inquiry to the Ethics Committee (for short, “EC”). The petitioner showed his brazen attitude of unresponsiveness before the Ethics Committee also, including the conduct of appearing before it and questioning its authority to proceed against him. Eventually a recommendation report by the Ethics Committee came to be filed against the petitioner, based on which he was expelled from the Bihar Legislative Council. During the pendency of challenge to his expulsion by the petitioner, fresh elections were notified by the Election Commission of India (for short, “ECI”) and elections were also convened, the declaration of results of which was however stayed by virtue of the court’s order.
The expulsion was challenged by the petitioner before the Supreme Court on very many grounds, which were opposed by the respondents.
Issues for consideration
The court in view of the arguments put forth by the contesting parties framed the following issues for its consideration:
1. Whether the instant writ petition is maintainable in view of Article 212(1) of the Constitution of India and whether the proceedings of the Ethics Committee are amenable to judicial review?
2. Can the Supreme Court in exercise of its writ jurisdiction review the proportionality of the punishment imposed by the House?
3. If so, whether the petitioner’s expulsion is disproportionate to the misconduct attributed to him and whether it merits any interference?
4. If Issue (iii) is answered in the affirmative, whether the SC is empowered to determine the quantum of punishment that may be imposed on the petitioner?
In re: Issue 1: Maintainability of writ petition and amenability of proceedings of EC to judicial review in the face of constitutional bar under Art. 212(1).
The objection to the maintainability of the writ petition was challenged on the ground of a constitutional bar under Article 212(1) which prohibited any inquiry by any court of any proceeding in the legislature on the grounds of any irregularity of procedure. The court held that the bar under Article 212(1) operates only qua proceedings in the legislature on the ground of procedural irregularities, which are entirely different from “legislative decisions”. The court explained the distinction between the two expressions, viz. “proceeding in the legislature” and “legislative decision”. The legislative decision is the culmination of the legislative procedure, as a formal expression of the will of the house on any given matter and outcome of deliberative functions undertaken by Member of Legislative Councils as the “proceedings of the legislature”. Judicial review (JR) therefore, of the legislative decisions is therefore not an encroachment upon the legislative dominion but upholds constitutional supremacy. Referring to the principle of “expression unius est exclusion alterius”, the court held that judicial review of legislative decisions, whether legislative or administrative is not excluded by Article 212. Therefore, if any determination or decision by the authority is found to be in excess of its constitutional authority or violative of fundamental rights (for short, “FR”), it can always be judicially reviewed.
Referring to the rules framed by the State Legislature under Article 208 of the Constitution of India (for short, “COI”), the court stated that the functioning of the EC under the rules cannot be treated as a part of legislative functions of the House. Rather the action of the Election Commission impugned in the petition is purely administrative in nature aimed at enforcing discipline and ethical standards amongst the House members. Enforcement of these rules framed under Article 208 is therefore an exercise of administrative powers rather than legislative powers, by the Bihar Legislative Council. Referring to the judgment of Ashish Shelar v. Maharashtra Legislative Assembly, the court held that substantive disciplinary or self-security measures inflicted upon the erring members of the House is always open to judicial review on the grounds of being unconstitutional, grossly illegal, irrational, or arbitrary. Accordingly, the court held the writ petition to be maintainable, rejecting the respondent objections to its maintainability. Holding the action of Election Commission to be an administrative action, it held that it is neither the “proceedings of the legislature” nor a “legislative decision”.
The court then examined the “doctrine of proportionality” and whether the same can be resorted to for examining the validity of the action under challenge of the Bihar Legislative Council. Referring to the “doctrine of proportionality” in the Indian jurisprudence as it has developed in the Indian jurisprudence, court referred to various dimensions and legal disciplines to which the doctrine was relatable to. In this respect, it referred to extent of applicability of this doctrine to the following:
1. service and labour laws,
2. administrative law,
3. constitutional law,
4. criminal law, and
5. interpretation of statutes and administrative law.
Accordingly, the court observed that various precedents that have developed and evolved over a period of time clearly demonstrate wide prevalence and presence of the principle of proportionality in the application and implementation of the law.
The court then referred to the International jurisprudence pertaining to the development of the said doctrine as it has been applied in foreign jurisdictions, referring to various countries as follows:
1. In Germany, where any action of State violating constitutional freedoms or property rights is scrutinised and subjected to a three-pronged test, viz. (a) appropriate to promote its objective; (b) necessary to promote that objective; and (c) adequate (balancing operation), i.e. the prejudice to the freedom or property right in question must not be inadequate in comparison with the weight of the interests supposed to justify the intervention.
2. European Union
3. United States of America (USA), wherein the US Courts have retained two standards of” strict scrutiny” and” rational basis” scrutiny when adjudicating challenges to state or federal legislation. Government action is invalidated if the court is able to find a less restrictive, yet equally effective alternative to the proposed method/legislation which impinges upon the fundamental rights of the citizens. The courts have been testing the validity and legality of punishments imposed beyond what is necessary and just by labelling it as being irrational and arbitrary.
The court then elaborated upon the role of Constitutional Courts whilst adjudicating upon the action or decisions of the House. Referring to the judgment of Raja Ram Pal v. Lok Sabha68, the Supreme Court held that the expulsion of any member from the House constitutes a higher degree of deprivation and can be sustained only in exceptional circumstances. Removal is a significant issue for both the member as well as the constituency he/she represents. Absence of duly elected representatives due to removal/expulsion disrupts the democratic process and undermines the voice of the electorate. Therefore, Constitutional Courts cannot be restrained or barred from examining the proportionality of the punishment imposed on a member while reviewing the validity of the action taken by the House. Accordingly, the court delineated various guiding principles to consider while scrutinising the proportionality of actions taken by the House against its members. These guiding principles related to the degree of obstruction caused by the member and whether such behaviour brought disrepute to the dignity of the entire House; availability of lesser restrictive/punitive measures to discipline the delinquent member and whether the punishment in question is suitable for furthering the desired purpose after balancing the interests of the society. The action taken by the House must always be so taken by scrutinising as to whether the punishment in question serves as a tool for retribution that the purpose of imposing punishment is not to serve as a tool for retribution, but rather to uphold and enforce discipline within the House.
In re: Issues 2 and 3: Proportionality of the petitioner’s expulsion from BLC and scope of interference
The court severely deprecated the conduct of the petitioner holding that his behaviour was nothing but a brazen attempt to circumvent the authority of the Election Commission as also that of the House. However, at the same time it held that the House/Bihar Legislative Council as the custodian of constitutional values and democratic principles was bound to exercise magnanimity, rising above petty criticism and unwarranted remarks against its members. The disciplinary measures to be taken should have been with due regard to the principles of proportionality and fairness. Referring to the provisions of the Bihar Vidhan Parishad Rules of Procedure and Conduct of Business, it stated that various other punishments can be imposed on the erring member for their misbehaviour. Punishment being imposed disproportionate to the offense or action of the delinquent violates fundamental rights under Articles 14 and 21 of the Constitution of India. The punishment therefore meted out to the petitioner was excessive and disproportionate to the nature of his offence.
In re: Issue 4: Power of the court to determine the quantum of punishment
The court then proceeded to examine the appropriate quantum of punishment to be imposed on the petitioner and whether the Supreme Court could have undertaken such an exercise. Ordinarily, the courts cannot substitute their own assessment of the appropriate penalty/punishment, since the authority imposing the punishment is best placed to evaluate the nature of the offence and the punishment commensurate to it. However, in the present case, to avoid prolonged litigation for reconsideration of the appropriate punishment, the court felt it fit to invoke Article 142 of the Constitution of India for substituting the punishment in view of the peculiar facts and circumstances appearing before it. It held that since the petitioner had already undergone almost seven months of expulsion, having missed various sessions of the Bihar Legislative Council, therefore equitable relief was to be provided to him. Accordingly, the period of expulsion already undergone by the petitioner was deemed to have been considered as a period of his suspension by the Supreme Court and was held to have constituted sufficient punishment for the misconduct displayed by him. The punishment was accordingly modified to the said extent.
The punishment of expulsion so imposed by the Bihar Legislative Council on the recommendation of the Election Commission was set aside as quashed and the petitioner was directed to be reinstated as a member of the Bihar Legislative Council with immediate effect. The writ petition was disposed of in the above terms.
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(11) Lifecare Innovations (P) Ltd. v. Union of India69
(Delivered on 25 February 2025)
Coram: two-Judge Bench of Justices P.S. Narasimha and Sandeep Mehta
Authored by: Justice P.S. Narasimha
The petitioner a Micro Enterprise (for short, “ME”), through the writ petition raised two important questions, firstly, the right of Micro and Small Enterprises (for short, “MSEs”) to supply 25 per cent of the goods and services to be mandatorily procured by the Government and its instrumentality under the Procurement Policy, 2012 (for short, “PP”); Secondly, the legality of minimum turnover clauses prescribed in the notice inviting tenders (for short, “NITs”) issued by the Government and its instrumentalities. These questions were raised under Section 11, Micro, Small and Medium Enterprises Development Act, 2006 (for short, “MSMED Act”), in view of which the PP Order, 2012 came to be framed.
The court held that PP had the force of law and was thus enforceable; they are accountable and subject to judicial review.
The petitioner in the present case was a micro enterprise, which is involved in the manufacturing, development, and marketing of healthcare products. It manufactured the critical, life-saving drugs also recognised by the Government of India (for short, “GOI”). It attempted to participate in various tenders and procurement processes for the supply of drugs in manufactures, however owing to the mandatory minimum turnover clauses (for short, “MMT”), it was placed at a disadvantageous position, since its turnover was bound to be lower than that of its competitors for various unavoidable inevitable reasons. The petitioner accordingly sought an exemption from the minimum turnover clauses, which was, however, declined by the authorities issuing the notice inviting tender. The writ petitions preferred before various High Courts challenging the said clauses by the petitioner also came to be dismissed, whereafter the present petition under Article 32 of the Constitution of India (COI) came to be filed. Referring to various notice inviting tenders, it was contended that they stand contrary to the Procurement Policy, 2012 and the minimum turnover clauses should be done away with, being arbitrary and violative of Articles 14 and 19 of the Constitution of India. It was contended in the said petitions that the worth of medicines ultimately procured through the tender is much below the turnovers of many participants, for which reason therefore turnover cannot be an accurate indicator of the manufacturing capability of the participating bidders; there is no empirical data to show that turnover has a direct bearing on the manufacturing capability of pharmaceutical companies, especially micro enterprises, which are working on a much smaller scale.
Issues for consideration
In view of the warring contentions, the court framed two issues for its consideration, worded as follows:
1. Does the MSMED Act, coupled with the PP Order, 2012 mandate procurement of 25 per cent of goods and services by the government, and its instrumentalities from the micro and small industrial enterprises?
2. Is the prescription of mandatory minimum turnover clause in notice inviting tenders violative of Articles 14 and 19 of the Constitution of India, provisions of the MSMED Act and the Procurement Preference Policy, 2012?
MSMEs in India, background of the MSMED Act and the PP Order, 2012
The court elaborated the significance and vitality of micro, small and medium enterprises (MSMEs) in any emerging economy. Referring to the judgment of NBCC (India) Ltd. v. State of W.B.70, the court reiterated that micro, small and medium enterprises are the backbone of many economies, including India, for which only the MSMED Act came to be enacted. The history of the MSMED Act being preceded by its predecessor legislation titled as the “Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993”, was alluded to. Referring to Section 11 and the PP Order, 2012, being framed thereunder, the court stated that the larger object of the same is to achieve an overall procurement of minimum cap of total annual purchases of products and services from micro and small enterprises within a period of three years by the Government of India or its undertakings. Vide Clause 3, the said minimum cap so fixed mandatorily is 25 per cent. The court also referred to various other clauses of the said PP Order, specifically Clause 12, providing for the constitution of a Review Committee, which has provided for a list of 358 items reserved for micro and small enterprises. Analysing the whole PP Order holistically, the court drew the following inferences regarding the legal regime of public procurement from micro and small enterprises as follows:
1. Initially setting annual goals of procurement for a period of 3 years (Clause 3) and thereafter mandating yearly procurement of a minimum of 25 per cent of procurement by the Ministries (notified 358 items), departments and public sector undertakings [Clause 3(3)].
2. Preparation and uploading of the annual procurement plan regularly along with annual reporting (Clause 5) of government procurement by all the Ministries, departments and public sector undertakings as a mandatory condition to continue with their procurement seamlessly.
3. Constitution of a robust and effective Review Committee under Clause 12 for considering the requests of the ministries, departments or public sector undertakings for exemption from the 25 per cent target on a case-to-case basis. This Committee will also be monitoring achievements under the policy.
4. Constitution of the Grievance Cell under Clause 13 for taking up issues raised by the micro and small enterprises with respect to government procurement, whose mandate shall include redressal of “imposition of unreasonable conditions in tenders floated by the government departments or agencies that put micro and small enterprises at a disadvantage”.
The court held that it is therefore necessary to ensure that, in the functioning of micro and small enterprises, there is efficiency in administration, expertise through composition, integrity through human resources, and responsibility through regular review, audits and assessments. It is only then that institutional objectives can be achieved, which will reduce unnecessary and avoidable litigation. After scanning the statistics regarding procurement from various micro and small enterprises in the preceding years, the court held that the Review Committee must review and examine the list of central public sector enterprises (PSEs) who had failed to achieve the procurement targets. It should also review the list of 358 items exclusively reserved to be procured from micro and small enterprises and exemption from the mandatory requirement of 25 per cent procurement on a case-to-case basis. Since the Review Committee had not taken any concrete decision in the said regard, therefore the court directed it to take a decision within 60 days from the date of the order.
On the second issue regarding the validity of minimum turnover clauses in various notice inviting tenders as violative of Articles 14 and 19 of the Constitution of India, the court held that per se minimum turnover clauses can never be treated to be unconstitutional. Relying on the judgment of Assn. of Registration Plates v. Union of India71, the court held that tender conditions providing the requirement of an experienced manufacturer with sound financial and technical capacity can never be struck down as arbitrary or violative of fundamental rights. However, the law applicable for procurement through MSEs stands on a different footing, especially when it relates to “public safety, health, critical security equipment, etc.” Under the PP Order, the State has mandatory preference obligations from the public sector enterprises, which the statutory and executive authorities are bound to implement. minimum turnovers cannot therefore undermine or override the stipulations of the public procurement order. The court directed the grievance cell constituted under the public procurement order to take up the issues relating to the imposition of unreasonable conditions in tenders floated by the Government of India or public sector enterprises putting micro and small enterprises at a disadvantage. Referring to various office memorandums and circulars, the court held that the grievance cell is the authority obligated to scrutinise unreasonable conditions affecting disadvantageously the micro and small enterprises.
Accordingly, the writ petition was disposed of with the issuance of various directions, including a direction to the Review Committee and the grievance cell to examine and declare limits of minimum turnover clauses with respect to micro and small enterprises and also issue appropriate policy guidelines within a period of 60 days from the date of the court order. The writ petition was accordingly disposed of.
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(12) Garden Reach Shipbuilders & Engineers Ltd. v. GRSE Ltd. Workmen’s Union72
(Delivered on 25 February 2025)
Coram: two-Judge Bench of Justices Dipankar Datta and Rajesh Bindal
Authored by: Justice Dipankar Datta
The controversy originated from the refusal by Garden Reach Shipbuilders & Engineers Limited (for short, “GRSE”) to grant compassionate appointments to certain dependents represented through the GRSE Limited workmen’s union. The affected persons approached the Calcutta High Court through a writ petition seeking appropriate relief.
The Single Bench of the High Court did not decide the writ petition on merits. Instead, the matter was delisted and kept pending until the Supreme Court answers a reference pending in the SBI v. Sheo Shankar Tewari73. The Single Judge granted liberty to the parties to mention the matter after the reference was answered by the Supreme Court. The workmen challenged this before the Division Bench through a Letters Patent Appeal, urging the Division Bench itself to dispose of the writ petition itself. Acting on this understanding of the parties, the Division Bench took up the writ petition and eventually directed the Garden Reach Shipbuilders & Engineers Limited to provide compassionate appointments to 48 out of 51 claimants.
Garden Reach Shipbuilders & Engineers Limited challenged this decision before the Supreme Court, arguing that the Division Bench lacked jurisdiction inherently to hear the writ petition since it had not been assigned such matters under the roster framed by the Chief Justice of the High Court.
Issues before the court
The court while deciding the appeal framed the following issues:
1. Whether the Division Bench was competent to hear and decide the writ petition when the matter had not been referred to it by the Single Bench in accordance with the High Court rules.
2. Whether consent of the parties could confer the jurisdiction upon the court that otherwise lacked authority to entertain the matter.
3. Whether an order passed by a Bench acting beyond the jurisdiction allotted to it under the roster of the Chief Justice could be sustained in law.
4. Whether the Division Bench’s order granting compassionate appointment was valid despite the alleged procedural irregularity.
Resolution of issues by the court
The Supreme Court emphasised that the Chief Justice possesses the exclusive authority to allocate the judicial work and determine which bench may hear a particular class of cases. This authority is fundamental to the orderly functioning of the High Court and is binding upon all the other Judges. The court also noted that Rule 26 of the Rules framed by the Calcutta High Court under Article 225 of the Constitution of India permits a Single Judge to refer a matter to the Division Bench. However, in the present case the Single Judge had not referred the writ petition to the Division Bench. Consequently, there was no legal basis for the Appellate Bench to have assumed original jurisdiction over the writ petition.
A central aspect of the judgment is the court’s reiteration of the principle that jurisdiction cannot be by the agreement or consent of the parties, even when both sides had agreed for hearing before the court which was otherwise incompetent to hear the subject-matter. Judicial authority flows from law and proper allocation of businesses, not from the willingness of litigants.
After examining the relevant cause list and roster allocations/determinations fixed by the Chief Justice, the Supreme Court found that neither the predecessor Division Bench nor the Division Bench that ultimately decided the matter had been assigned jurisdiction to hear writ petitions relating to the relevant service category. That jurisdiction was confined only to hearing appeals from orders. Relying upon various precedents, including Sohan Lal Baid v. State of W.B.74, State of Rajasthan v. Prakash Chand75 and Campaign for Judicial Accountability and Reforms v. Union of India76, the court reiterated that any adjudication by a Bench acting beyond the allocation made by the Chief Justice is without jurisdiction and therefore a nullity.
The Supreme Court, in view thereof, refrained from examining the issue on merits, but confined itself to the jurisdictional defect and expressly left the substantive dispute open for a fresh consideration from the High Court.
Conclusion
The Supreme Court accordingly allowed the appeal and set aside the judgment passed by the Division Bench of the High Court by declaring the order directing compassionate appointment as unsustainable and quashed the same. The writ petition was restored to the High Court for fresh adjudication before a properly constituted Bench designated by the Chief Justice.
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(13) Radhika Agarwal v. Union of India77
(Delivered on 27 February 2025)
Coram: three-Judge Bench of Justices Sanjiv Khanna and M.M. Sundresh and Bela Trivedi
Authored by: Justice Sanjiv Khanna
The Supreme Court adjudicated a large batch of petitions challenging the powers of arrest and investigation exercised under the Customs Act, 1962 (for short, “the Customs Act”), the Central Goods and Services Tax Act, 2017 (for short, “GST”) and the corresponding State GST enactments. The dispute originated from an earlier 3-Judge Bench ruling in Om Prakash v. Union of India78, which had held that offences under the Customs Act and the Central Excise Act, 1944 were non-cognizable and bailable, requiring customs officers to obtain a warrant before making any arrest. The legislative response to the Om Prakash case through amendments in 2012, 2013, and 2019 fundamentally altered the statutory landscape, prompting fresh challenges before the Supreme Court.
Background of the controversy
Prior to the Om Prakash case, customs offences were treated as non-bailable and accused persons arrested under the Customs Act were routinely detained for extended periods before being released on bail. The ruling of Om Prakash case discontinued this practice by interpreting offences under the Customs Act and the Central Excise Act, 1944 as non-cognizable, holding that officers could arrest only after obtaining a warrant from a Magistrate under Section 41, Criminal Procedure Code, 1973 (for short, “CrPC”). The court further held that these offences were bailable, as their punishment fell below three years.
The legislative response to the aforesaid verdict came swiftly. Through a series of amendments vide the Finance Act, 2012, Finance Act, 2013, and Finance Act, 2019, Parliament carved out specific categories of offences under the Customs Act as cognizable and non-bailable, effectively overriding the blanket application of the Om Prakash case. Similar provisions were also incorporated into the GST Act. These amendments triggered fresh rounds of litigation, with petitioners challenging both the validity of these amendments and the manner in which arrest powers were being exercised.
The controversy arose because several taxpayers challenged summons, arrests and criminal proceedings initiated under the GST regime. One of the principal concerns raised was that powers of arrest were being exercised even before the completion of assessment or adjudication proceedings. Allegations were also made that taxpayers were being compelled to make payments under threat of arrest.
Issues before the court
The court framed the following issues for its consideration:
1 Whether power of arrest under the GST provisions is unconstitutional.
2. Whether Sections 69 and 70 suffer from lack of legislative competence.
3. Whether persons summoned under Section 70 are entitled to protection under Article 20(3).
4. What procedural safeguards must accompany exercise of arrest powers.
5. To what extent courts can review the subjective satisfaction of GST authorities and whether remedy anticipatory bail is available in GST offences.
To answer the issue, the court examined its earlier judgments. including Enforcement Directorate v. Deepak Mahajan79, dealing with arrest and detention under special statutes, the Om Prakash case, concerning arrest under customs and excise laws, Union of India v. Ashok Kumar Sharma80, concerning investigation under the Drugs and Cosmetics Act,1940, Poolpandi v. CCE81, D.K. Basu v. State of W.B.82, Gurbaksh Singh Sibbia v. State of Punjab83 and Sushila Aggarwal v. State (NCT of Delhi)84.
In re: Issue 1
The court, while rejecting the contentions of the petitioners, held that the power of arrest under Section 69 operates independently of assessment proceedings. Offences under Section 132, GST Act are criminal in nature and prosecution need not await completion of adjudication in every case. The court clarified that economic offences involving fraudulent availment of input tax credit, fake invoices, or tax evasion may justify arrest even before assessment is finalised.
In re: Issue 2
The court repelled the challenge to Sections 69 and 70 on the ground of legislative competence. It held that Article 246-A confers comprehensive legislative authority upon Parliament and State Legislatures with respect to GST, which includes the power to prescribe offences and enforcement mechanisms. Accordingly, Sections 69 and 70 were held to be constitutionally valid.
In re: Issue 3
The court emphasised that the power of arrest is not arbitrary and can only be exercised when the Commissioner has “reasons to believe” that the conditions specified in Section 132 are satisfied. The existence of material forming the basis of such belief is a condition precedent to arrest. The court reiterated that the safeguards flowing from Articles 21 and 22 and the principles laid down in D.K. Basu case must be scrupulously observed. The court further noted that records relating to arrest and investigation must be maintained properly and that the grounds of arrest must be communicated to the person arrested.
In re: Issue 4
The court referring to the principles developed in Arvind Kejriwal v. Enforcement Directorate85 and earlier decisions, held that judicial review is available to examine whether the arresting officer was duly authorised, the statutory conditions were fulfilled; there existed material giving rise to “reasons to believe”, and whether constitutional safeguards were observed. However, the courts are not expected to examine the adequacy or sufficiency of material at the preliminary stage of investigation. Such scrutiny would interfere with statutory investigations.
In re: Issue 5
The court took note of contentions that taxpayers were being compelled to deposit taxes under fear of arrest. Referring to Central Board of Indirect Taxes and Customs (CBIC) Instruction No. 01/2022-23, it was observed that recovery proceedings can only commence in accordance with statutory procedure, and that no coercive recovery should be made during search, inspection, or investigation. Payments made must be voluntary. If coercion is established, the taxpayer may seek a refund, and appropriate action may be taken against erring officers.
The court held that a person summoned under Section 70 is not automatically an accused entitled to protection against self-incrimination under Article 20(3). The privilege against self-incrimination does not extend to the stage of investigation and interrogation. The court for this proposition relied upon the precedents of the Poolpandi case and Dukhishyam Benupani v. Arun Kumar Bajoria86. The court reaffirmed that anticipatory bail is available where there exists a reasonable apprehension of arrest. Registration of an FIR is not a prerequisite for invoking Section 438 of the Code. Relying upon the Gurbaksh Singh Sibbia case and the Constitution Bench decision in Sushila Aggarwal case, the court observed that courts may grant anticipatory bail with appropriate conditions, depending on the facts of each case. It further clarified that contrary observations in certain GST-related decisions should not be treated as binding.
Conclusion
The Supreme Court upheld the constitutional validity of Sections 69 and 70, GST Act and recognised the independent power of arrest available to GST authorities. At the same time, the court emphasised that such power must be exercised with restraint and in strict conformity with constitutional safeguards. By reiterating the availability of judicial review, prohibiting coercive tax recovery during investigations and reaffirming the availability of anticipatory bail, the court sought to maintain an equilibrium between effective enforcement of tax laws and protection of individual liberty.
Concurring opinion of Mrs Justice Bela M. Trivedi
Justice Bela M. Trivedi, agreeing with the majority’s conclusion regarding the conditions for exercising arrest powers, delivered a separate concurring judgment focusing specifically on the scope of judicial review under Articles 32 and 226 of the Constitution of India when the legality of arrest is challenged.
Justice Trivedi emphasised that while the jurisdiction of the High Courts and the Supreme Court under Articles 32 and 226 is wide and untrammelled, the courts have over time evolved self-restraints as a matter of prudence, propriety and policy. In the context of Special Acts like the PMLA, UAPA, Foreign Exchange Regulation Act , 1973 (FERA), Customs Act and GST Act, which deal with offences of a very serious nature affecting national financial integrity and sovereignty, the courts must be “extremely loath” in exercising the power of judicial review.
According to Justice Trivedi, judicial intervention is warranted only in exceptional circumstances where the arrest is prima facie found to be mala fide, prompted by extraneous circumstances, made in contravention of statutory provisions, or where the arresting authority lacked the requisite authority. The sufficiency or adequacy of the material on which the belief is formed by the officer or the correctness of the underlying facts, cannot be a matter of judicial review at such a nascent stage of investigation. Frequent judicial interference in the functioning of specially empowered officers may embolden offenders and frustrate the very objectives of these special enactments.
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(14) Imran Pratapgadhi v. State of Gujarat87
(Delivered on 28 March 2025)
Coram: two-Judge Bench of Justices Abhay S. Oka and Ujjal Bhuyan
Authored by: Justice Abhay S. Oka
The case arose from the registration of an FIR against the petitioner based on a poem and social media post that were alleged to promote disharmony and disturb public order. The SC in this judgment examined the limits of criminal law in relation to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The SC also clarified the circumstances in which speech-related offences can be invoked, explaining the scope of police power under Section 173, Nagarik Suraksha Sanhita, 2023 (for short, “BNSS”).
Issues before the court
The court framed the following issues for consideration:
1. Whether the poem and social media post disclosed the ingredients of the offences involved in the FIR and whether the registration of the FIR was justified under Section 173 BNSS.
2. Whether the criminal prosecution based on the impugned expression infringed the appellant’s constitutional right of freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution of India.
3. Whether the High Court was justified in refusing to quash the FIR merely because the investigation was at a very initial stage.
Resolution of issues by the court
The Supreme Court analysed Section 173 BNSS and held that sub-section (1) of Section 173 BNSS is substantially the same as sub-section (1) of Section 154 CrPC; therefore, the law laid down by this court in Lalita Kumari v. State of U.P.88 on Section 154 CrPC will be relevant. The court reiterated that where information clearly discloses a cognizable offence, registration of an FIR is ordinarily mandatory. However, Section 173(3) introduces a significant departure from the earlier CrPC by permitting a preliminary inquiry in certain offences punishable with imprisonment between three to seven years. The purpose of such an inquiry is to determine whether a prima facie case exists before proceeding further. The court observed that in cases involving spoken or written words, especially where free speech concerns arises, the police should carefully assess whether the statutory ingredients of the alleged offence are actually present before initiating criminal action or not.
The court emphasised that liberty of thought and expression is one of the foundational values of the Constitution of India. While Article 19(2) permits reasonable restrictions, those restrictions cannot be interpreted in a manner that overshadows the substantive right guaranteed under Article 19(1)(a). Police authorities, being organs of the State, are under constant obligation to protect and respect this freedom.
The court further stated that where allegations are based on speech or writing, authorities must exercise caution before invoking criminal law because an unjustified prosecution may discourage legitimate expression and dissent. Referring to the judgment of Bhagwati Charan Shukla v. Provincial Government89, the Supreme Court held that impact of spoken or written words cannot be judged from the perspective of hypersensitive individuals or those who perceive every criticism as a threat. Instead, the effect of the expression must be assessed from the viewpoint of a reasonable, firm and courageous member of the society. The court further held that only speech which is capable of genuinely promoting enmity, hatred, violence or public disorder would attract penal provisions. Mere criticism, protest or political disagreement does not amount to a criminal offence.
Referring further to the judgments of Manzar Sayeed Khan v. State of Maharashtra90, Patricia Mukhim v. State of Meghalaya91 and Javed Ahmad Hajam v. State of Maharashtra92, the Supreme Court held that offences analogous to Section 153-A IPC, now reflected in Section 196 BNS requires the presence of mens rea or a deliberate intention to promote hatred or disharmony. The intention of the speaker must be gathered from the language used, the surrounding circumstances and overall context rather than from isolated words or phrases. Upon examining the poem and the circumstances in which it was shared, the Court found no material suggesting any intention of inciting violence, creating hostility or disturbing public order. Therefore, a key ingredient of the alleged offence was absent.
The SC disagreed with the High Court’s conclusion that the post was likely to disturb social harmony. It observed that no prima facie offence was disclosed and that the FIR appeared to have been registered mechanically. The court clarified that there is no absolute rule preventing the High Court from quashing criminal proceedings merely because an investigation is at its initial stage. Where allegations do not disclose any offence, Constitutional Courts must intervene to prevent abuse of legal process.
Referring to the judgment of the Bombay High Court in Anand Chintamani Dighe v. State of Maharashtra93, the court strongly emphasised that peaceful criticism of governmental actions and the right to dissent are indispensable features of a constitutional democracy. It observed that disagreement with state actions, even when expressed in strong language, remains protected speech so long as it does not cross the limits prescribed by Article (19)(2). The courts therefore have a duty to safeguard free expression against unwarranted State interferences.
Conclusion
The court allowed the appeal and held that the impugned poem and the social media post did not disclose the essential ingredients of the offences alleged in the FIR. The court found no evidence of an intention to promote enmity, hatred or public disorder and consequently the FIR was quashed.
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(15) Prabhjot Kaur v. State of Punjab94
(Delivered on 9 April 2025)
Coram: two-Judge Bench of Justices Sudhanshu Dhulia and K. Vinod Chandran
Authored by: Justice Sudhanshu Dhulia
The appeal arose out of the order of the Division Bench of the Punjab and Haryana (P&H) High Court, whereby this issue relating to reservation for women in public employment and the extent to which recruitment conditions can be altered after a selection process has been commenced. The dispute arose from the recruitment conducted through the Punjab State Civil Services Combined Competitive Examination, 2020 (for short, “PSCSCCE”), where a post of Deputy Superintendent of Police (for short, “DSP”) reserved for the “Scheduled Caste Sports (Women) Category” became the subject of competing claims. In this case, the court primarily examined the legality of changing reservation arrangements during an ongoing recruitment process and reiterates the settled principle that the “rules of the game” cannot be modified after the process has begun.
Factual matrix of the case
In June 2020, the Punjab Public Service Commission (for short, “Commission”) issued an advertisement for recruitment to various State services, including two DSP posts reserved for the “Scheduled Caste (SC) Sports Category”. Both the appellant and the private respondent applied under this category. Subsequently, the Punjab Government notified the Punjab Civil Services (Reservation for Posts of Women) Rules, 2020, whereafter the earlier advertisement was withdrawn and a fresh one was issued, reserving one Deputy Superintendent of Police (DSP) post for the “Scheduled Caste Sports (Women) Category”.
Upon completion of the selection process, the private respondent emerged as the highest-ranked male candidate in the Scheduled Caste Sports Category, while the appellant secured the highest rank among female candidates in the Scheduled Caste Sports (Women) Category. The private respondent challenged the reservation of the DSP post for women. While the Single Judge upheld the reservation, the Division Bench remanded the matter for reconsideration in light of conflicting views within the State Government. Aggrieved by the remand order, the appellant approached the Supreme Court.
Issues before the court
The court framed the following issues for its consideration:
1. Whether the reservation of DSP for the Sports (Woman) Category under the advertisement dated 11 December 2020 was legally valid.
2. Whether the State Government or courts could modify the terms of recruitment after candidates had participated in the selection process.
3. Whether the Division Bench was justified in remanding the matter despite the findings of the Single Judge.
Resolution of issues by the court
The court observed that fresh advertisement issued on 11 December 2020 governed the entire recruitment process. The advertisement specifically reserved the DSP post for the Scheduled Caste Sports (Woman) Category in accordance with the 2020 Rules, which provided 33 per cent reservations for women. Importantly, neither the advertisement nor the 2020 Rules had been challenged at the relevant stage. Consequently, the right of all candidates had to been determined strictly based on the terms contained in the subsequently issued advertisement.
A key argument raised by the private respondent was based on a roaster issued by the State Government in January 2021. The court rejected this contention and recorded that the roster came into existence after the last date of submission of application after the recruitment advertisement had already expired. Therefore, it could not retrospectively alter the reservation pattern applicable to ongoing to the selection process. The court emphasises that once a candidate entered a recruitment process based on the public advertisement, subsequent administrative changes cannot be employed to modify the rights and expectations.
Application of ”the rule of game” doctrine
The court while referring to its precedents in K. Manjusree v. State of A.P.95 and the Constitutio decision in Tej Prakash Pathak v. Rajasthan High Court96, reiterated that the recruitment process begins with the issuance of an advertisement and concludes with the filling of vacancies. During this period eligibility conditions and reservation arrangements cannot be altered unless the governing rules expressly permit such a change and the modification satisfies the constitutional standard of fairness and non-arbitrariness.
According to the court, accepting the State’s later stand would amount to changing the rules after the candidate already participated in the competition, which would be fundamentally unfair. The court also observed that the private respondent had participated in the entire recruitment process without raising any objection to the reservation structure. His challenge was initiated only after the publication of the merit list. Having accepted the terms of the recruitment process and completed thereunder then he could not seek the modification of those very terms merely because the outcome was unfavourable to him.
Since the advertisement validly reserved that DSP post for the Scheduled Caste Sports (Women) Category and the appellant was the only successful candidate in the category, the court held that she alone was entitled to be considerate for the appointment of the post. The competing claim raised by the private respondent was therefore unsustainable.
Conclusion
The court allowed the appeal and restored the decision of the Single Judge. The SC held that the recruitment advertisement dated 11 December 2020 validly reserved the DSP post for “Scheduled Caste Sports (Women) Category” and that the later roster notification should not be used to alter the reservation structure after the recruitment process had commenced. The judgment of the Division Bench was set aside.
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(16) All India Judges’ Assn. v. Union of India97
(Delivered on 20 May 2025)
Coram: three-Judge Bench Justices of B.R. Gavai, CJ, Augustine George Masih and K. Vinod Chandran
Authored by: Justice B.R. Gavai
The case arose from a batch of applications seeking modifications to earlier directions issued in the long-running proceedings of the All India Judges Assn. case. The court was called upon to reconsider issues related to the Limited Departmental Competitive Examination (for short, “LDCE”), whereby the eligibility criteria for promotion to the Higher Judicial Services (for short, “HJS”), suitability assessment for judicial officers, and other requirements of prior legal practice for entry into judicial services was called upon to be reconsidered.
Issues before the court
The proceedings originated from multiple applications filed before the SC raising following issues—
1. Whether the quota for the promotion through Limited Departmental Competitive Examination to the cadre of District Judges should be restored from 10 per cent to 25 per cent.
2. Whether the minimum qualifying experience to appear in the Limited Departmental Competitive Examination should be reduced.
3. Whether quota needs to be reserved for meritorious candidates from Civil Judge (Junior Division) to Civil Judge (Senior Division); if yes then what should be the percentage thereof and what should be the minimum experience as a Civil Judge (Junior Division).
4. Whether the quota which is reserved for the departmental examination in a particular year should be calculated on cadre strength or the basis of number of vacancies occurring in a particular recruitment year.
5. Whether some suitability test should be introduced while promoting the Civil Judge (Senior Division) to the cadre of District Judges against the existing 65 per cent quota for promotion to Higher Judicial Services on the basis of merit-cum-seniority.
6. Whether the requirement of having minimum three years’ experience for appearing for entry into the post of Civil Judge (Junior Division) should be reinstated and if yes, when the same should be calculated from the date of provisional enrolment/registration or from the date of passing of the All India Bar Examination (for short, “AIBE”).
To address these concerns, the court sought responses from all High Courts and State Governments. The affidavits revealed significant differences in recruitment and promotion practices across various States.
In re: Issue 1: Restoration of Limited Departmental Competitive Examination quota to 25 per cent
The court while considering the aforesaid issue of reconsideration of Limited Departmental Competitive Examination quota from 10 per cent to 25 per cent considered the background for providing the reservation for Limited Departmental Competitive Examination for promotion to Higher Judicial Services.
The Supreme Court discussed the directions given in the judgment of All India Judges’ Assn. (1) v. Union of India98 (1991) (for short, “1st AIJA case”), whereby the Government of India by its resolution dated 21 March 1996 constituted the first National Judicial Pay Commission under the Chairmanship of Justice K.J. Shetty (for short, “Shetty Commission”). The Shetty Commission submitted its report on 11 November 1999. Thereafter the Supreme Court in its judgment in All India Judges’ Assn. (3) v. Union of India99 (for short, “3rd AIJA case”), considered various recommendations of the Shetty Commission and responses made thereto. The Supreme Court considered and accepted the recommendations made by the Shetty Commission that the recruitment to the Higher Judicial Services should be 25 per cent.
The court observed that the original objective behind introducing the Limited Departmental Competitive Examination channel in the 3rd AIJA case was to encourage meritorious judicial officers by providing a channel for accelerated promotion. It noted that many High Courts had supported restoring the 25 per cent quota, the one which was reduced to 10 per cent by the fourth AIJA case in 2010, because the same had weakened the incentive structure within the judiciary. The Supreme Court concluded that restoring the quota from 10 per cent to 25 per cent would reward merit and improve the quality of the Higher Judicial Services. It further directed that if suitable candidates are unavailable in a particular year, the unfilled Limited Departmental Competitive Examination vacancies should revert to regular promotion quota and be filled in the same recruitment cycle.
Subsequently, practical difficulties led to the reduction of the quota to 10 per cent. However, several High Courts informed the Supreme Court that the reduced quota had weakened incentives for meritorious officers. The Supreme Court, accepting these suggestions, restored the Limited Departmental Competitive Examination quota to 25 per cent observing that merit-based promotion is essential for maintaining judicial excellence.
In re: Issue 2: Reduction of qualifying service for Limited Departmental Competitive Examination
The court examined the data furnished by the various High Courts and the State Governments and found that the existing requirement of 5 years’ service as a Civil Judge (Senior Division) often defeated the purpose of accelerated promotion. Data from various States and High Courts demonstrated that many officers become eligible for regular promotion almost at the same time they became eligible for the Limited Departmental Competitive Examination.
Consequently, the incentive value of examination was substantially diminished. The court therefore reduced the qualifying service requirement from five years to three years as Civil Judge (Senior Division), while stipulating a minimum cumulative judicial service of seven years.
In re: Issues 3, 4 and 5: Introduction of Limited Departmental Competitive Examination for promotion from Junior Division to Senior Division
The court held that merit should be encouraged at the earliest stages of judicial services. Drawing inspiration from the promotional structure applicable to District Judges, it directed for creation of a separate Limited Departmental Competitive Examination based channel for promotion from Civil Judge (Junior Division) to Civil Judge (Senior Division). Ten per cent of the posts in the Senior Division cadre were directed to be filled through such a competitive process. Officers with a minimum of three years’ service in the Junior Division would be eligible to participate.
To maintain consistency across jurisdictions, the court ruled that promotional quotas should be calculated based on total cadre strength rather than vacancies arising in a particular recruitment year. The court considered this approach more uniform and administratively efficient.
The court reiterated that promotion to Higher Judicial Services cannot depend solely on seniority. It emphasised the need for objective evaluation of a candidate’s suitability. While declining to prescribe a rigid national formula, the court directed High Courts and State Governments to frame revised rules for suitability assessment. Relevant considerations were identified as quality of judgments, knowledge of law, annual confidential reports (for short, “ACRs”), disposal rates, performance in viva voce examinations and communication skills and professional reputation.
In re: Issue 6: Issue related to the requirement of minimum three-year legal practice
The court observed that the abolition of practice requirements had led to serious concerns regarding the appointment of inexperienced law graduates directly to judicial posts. Referring to the practical advantages of courtroom exposure and interaction with the justice delivery system, the court emphasised the importance of professional experience before entry into judicial service.
The court recognised that legal practice provides practical skills and understanding that cannot be fully substituted by academic training alone. Accordingly, the court favoured restoration of the requirement of minimum 3-year practice for entry to the post of Civil Judge (Junior Division) from the date of provisional enrolment with the State Bar Council concerned.
Conclusion
The court substantially restructured the framework governing promotions and recruitment within the subordinate judiciary and answered the various issues framed by it.
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(17) Dhanya M. v. State of Kerala100
(Delivered on 6 June 2025)
Coram: two-Judge Bench of Justices Sanjay Karol and Manmohan
Authored by: Justice Sanjay Karol
The challenge was laid to the judgment passed by High Court of Kerala whereby the important questions regarding the scope of preventive detention arose. This later raised issues of distinction between “law and order”; “public order” and the extent to which the court may invoke extraordinary detention powers against a person, already facing criminal prosecution and has been released on bail.
Factual matrix of the case
The Appellant challenged the preventive detention of her husband Rajesh under Section 3, Kerala Anti-Social Activities (Prevention) Act, 2007 (for short, “2007 Act”). Rajesh was engaged in the business of moneylending. The District Magistrate, Palakkad issued a detention order in June 2024 on the recommendation of the District Police Chief describing Rajesh as a known “notorious goonda” and relied upon four criminal cases registered against him, involving allegations under the Kerala Prohibition of Charging Exorbitant Interest Act, 2012, provisions of the IPC and the Scheduled Castes/Scheduled Tribes Act.
Following his detention, the appellant approached the Kerala High Court through a writ petition seeking a writ of habeas corpus. The High Court upheld the detention order, holding that the detaining authority had acted on relevant material and the procedural requirement had been complied with and that the court could not reassess the merits of the criminal cases in its writ jurisdiction. The appellant then challenged the High Court decision before the Supreme Court. A significant argument advanced on her behalf was that the detainee had already been granted bail in all the criminal cases and was complying with the conditions imposed by the court.
Issues before the court
The court framed the following issues for its consideration—
1. Whether preventive detention was justified when the detainee had already been released on bail in the criminal cases relied upon by the authorities.
2. Whether the State should have pursued ordinary criminal remedies such as cancellation of bail instead of preventive detention.
3. Whether the preventive detention of the detainee is in accordance with the law.
Resolution of issues by the court
The court referring to the judgments of Rekha v. State of T.N.101 and Mortuza Hussain Choudhary v. State of Nagaland102 reiterated that preventive detention is a drastic and extraordinary measure because it authorises deprivation of personal liberty without a criminal conviction. Although Article 22 of the Constitution of India permits preventive detention, such power must be exercised fairly and only in exceptional circumstances. The court emphasised that preventive detention remains an exception to the constitutional guarantee of personal liberty under Article 21 and therefore requires a strict scrutiny.
Referring to the judgments of Icchu Devi Choraria v. Union of India103 and Banka Sneha Sheela v. State of Telangana104, the court further observed that the burden lies on the detaining authority to justify the detention and demonstrate strict compliance with constitutional and statutory safeguard.
Distinction between “law and order” and “public order”
The central issue before the court was whether the alleged conduct of the detainee genuinely threatened public order. Referring to its precedents, the court explained that “public order” has a narrower scope than “law and order”. While every violation of law may affect “law and order”, only those acts that disturb the normal life of the community or affect society at large can be decided as a threat to “public order”.
The court found that the detention order merely referred to criminal allegations against the detainee but failed to explain how those activities disrupted “public order”. There was no material showing that the alleged act affected the community as a whole or disturbed public tranquility. Consequently, the statutory requirements necessary for invoking preventive detention were not established.
The detention order alleged that the detainee had violated bail conditions imposed in the criminal cases against him. However, the court noted that the State had not filed any application before the competent courts seeking cancellation of bail on that ground. Nor had the authorities clearly identified the specific bail conditions allegedly breached.
The court held that if the State genuinely believed that bail conditions had been violated, the appropriate legal course was to seek cancellation of bail rather than resort to preventive detention. Preventive detention cannot be used to overcome perceived difficulties in ordinary criminal proceedings.
The court strongly emphasised that preventive detention should not replace regular criminal procedures when those procedures provide sufficient remedies. Since the criminal justice system already offered mechanisms to address the State’s concerns including cancellation of bail, the innovation of preventive detention was unwarranted.
The court observed that the fact relied upon by the authorities might justify an application for cancellation of bail, but they did not justify depriving an individual of liberty through preventive detention.
The Supreme Court finally allowed the appeal and set aside both the detention order and the High Court’s judgment affirming it.
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(18) State of Assam v. Arabinda Rabha105
(Delivered on 7 March 2025)
Coram: two-Judge Bench of Justices Dipankar Datta and Manmohan
Authored by: Justice Dipankar Datta
The batch of matters related to the setting aside of a substantially completed recruitment process of the predecessor government by the successively elected different political regime in Assam. The process of recruitment related to 104 posts of constables in the Assam Forest Protection Force (for short, “AFPF”), which was initiated with the issuance of an advertisement in July 2014. The process was carried out and even the select list was prepared by the Selection Committee headed by the erstwhile Principal Chief Conservator of Forest and Head of Forest Force (for short, “PCCF”), containing the names of candidates who had filed the writ petitions later. The said select list containing the names of the original writ petitioners (for short, “OWPs”) was submitted to the government for approval, when the government changed and on the ground that the selection process had been conducted in violation of the reservation policy as well as the judgments of the Supreme Court was cancelled in its entirety. This was followed by a fresh advertisement in April 2017.
This decision of cancellation triggered writ petitions before the Gauhati High Court.
Judgments of the High Court
The Single Judge allowed the writ petitions holding that the irregularities based on which the selection process was annulled were curable and could have been rectified without disturbing the entire selection process. Taking the view that “chaff could be separated from the grain without much difficulty”, the Single Judge held that selection process ought not to have been cancelled.
The Division Bench in appeal affirmed the view of the learned Single Bench, holding that no inquiry had been carried out prior to the cancellation of the select list, nor any such finding recorded by any duly constituted Inquiry Committee. The veracity of the irregularities or illegalities so alleged were therefore never put to any test so pointed out by the PCCF and thus the view taken by the learned Single Judge was not completely erroneous. The selection process could be taken to its logical conclusion by rectifying the anomalies which were highlighted by the PCCF in his note which formed the basis of cancellation of the entire selection process.
Issues for consideration
The Court framed the broad questions of law arising for its decision in light of the judgments and orders of the High Court, which were framed as follows:
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Whether the decision of the appellants, to cancel the select list was either vulnerable on application of the doctrine of Wednesbury106 unreasonableness or suspect applying the doctrine of proportionality and therefore liable to invalidation?
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Whether the decision of the appellants to cancel the select list infringed the legal rights of the respondents for, which a writ petition under Article 226 of the Constitution could be maintained?
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Whether the appellants have urged new grounds to support the cancellation in addition to those assigned earlier in any affidavit/pleading?
Analysis and consideration
Supreme Court before setting out on analysis and the exercise of answering various issues referred to a host of precedents, viz. State of Haryana v. Subash Chander Marwaha107, its Constitution Bench judgment in Shankarsan Dash v. Union of India108 and Jitendra Kumar v. State of Haryana109 to reiterate that State is under no legal duty to fill up all or any of the vacancies advertised by it. The notification kick-starting the recruitment process merely amounts to an invitation to qualified candidates to apply for recruitment, who do not acquire any vested right to the post on their selection. However, the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons and must be fair, non-arbitrary and rational. What matters is the overwhelming public interest. The decisions taken by one government in public interest itself cannot be a ground for review thereof at the hands of the successor government, but court must examine whether public interest would be subserved by asking the State to proceed to make appointments when the successive government is of the opinion that illegalities had been committed in the previously effected selection process.
Referring further to the judgment of All India Railway Recruitment Board v. K. Shyam Kumar110, court held that such a decision of cancellation of the previously initiated recruitment process must not be tested on the anvil of Wednesbury principles of reasonableness, alone but also on the principles of proportionality. Whereas the Wednesbury principles of reasonableness examine the way the decision was made and not necessarily on the merits of the decision, the “proportionality test” being much wider in its approach analyses the courses of action vis-à-vis the situation requiring a remedy. It is described also as a “test of least injurious means” or “minimal impairment test” so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. The employer therefore is expected to examine and weigh as to whether the only option is to conduct the whole selection process afresh and whether such a decision strikes the right balance. The employer must examine whether lesser restrictive options can be resorted to for combating the irregularities alleged in the examination and the selection process.
In view of the above the court then examined the irregularities and illegalities highlighted in the overall selection process, as also mentioned in the note of the PCCF of July 2016, which ultimately became the basis for annulling the entire selection process by the successive governments. This note as produced before the Single Bench of the High Court also broadly pointed out the following illegalities in the overall selection process, some of the glaring ones amongst which are as follows:
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the Central Selection Committee (for short, “CSC”) was directly constituted by the Union of India, and the original documents relating to the main examination were collected directly by the CSC;
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majority of the selected candidates were only from a very few districts of the State, whereas not a single candidate was selected from the 16 named districts including the Hill Districts, the Barak Valley Districts and the Bodoland Territorial Council Districts. This is despite the fact that these districts represented a substantial chunk of the population of Assam;
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the reservation pattern and process were not at all followed and was given a complete go by in the overall selection process;
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candidates who were placed much below in the serial list were eventually selected against the vacancy and thus the entire process of recruitment became highly questionable, unfair and non-transparent;
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there was an absence of any requirement of the aspiring candidates taking a written examination and the candidates were to be selected only and only based on an oral interview;
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besides, the whole process was also carried out by the employer State without framing any recruitment rules formally or having a properly constituted written examination to keep the process absolutely above board.
The court also found that in the instant case on the basis of the aforesaid material, the government arrived at the decision as suggested by the PCCF that the whole selection process ought to be started afresh by cancelling the previously convened one.
The High Court (both Single as well as the Division Bench) failed to apply the “proportionality test” for adjudging whether the perfect balance was struck by preferring one option out of the other available options by the State Government, which it failed to do so. Rather the High Court exercised appellate jurisdiction ignoring the larger public interest which weighed with the State Government. The decision to cancel the selection process could not be said to be not driven by achieving the greater good and therefore in judicial review, the High Courts could not have substituted its opinion with that of the State Government. This is more so when the government itself felt that selection being entirely based on interview (instead of the written tests) it smacked of an element of arbitrariness and favouritism could not have been ruled out in a process based only on oral interview. The selection process so annulled therefore had a coat of discernible taint suggesting impropriety and bias, and the action of the successor government of cancelling the said process cannot be said to be so disproportionate and incommensurate with the illegalities/irregularities so detected and alleged that interference could not have been made legitimately. Even by application of the doctrine of “Wednesbury unreasonableness”, such a selection process could not have been sustained.
Answering the second issue — Question B, the Supreme Court held that it cannot be held that an empanelled or a selected candidate has absolutely no right to move the writ court on cancellation of the selection process. Referring to the judgments of Shankarsan Dash case111 and R.S. Mittal v. Union of India112, the Supreme Court reiterated that the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board against a vacancy which can be offered to him in view of his merit position, then ordinarily there is no justification to ignore him for appointment and there has to be a justifiable reason to decline to appoint a person who is otherwise on the select panel.
Referring further to the judgment of Dinesh Kumar Kashyap v. South East Central Railway113, court held that the employer must always give cogent reasons for not appointing the duly selected candidates, even though such a decision falls in the realm of being a policy decision. Every process of recruitment necessarily involves substantial expenses which are borne out of the public exchequer and involves the aspirations of hundreds of participants especially those who have performed sufficiently well, standing a good chance of being appointed upon figuring in the select list.
If the writ court finds that the action of the employer in cancelling the selection process is not bona fide, it may intervene in such matter and make such direction as the facts and circumstances warrant.
Relief and concluding directions
Accordingly, Supreme Court set aside both the judgments of the Single as well as the Division Bench by allowing the civil appeal. The appellant State Government was directed to take forward the process of filling up the posts of 104 constables in the Forest Department. It also expressed the desirability of carrying out such a selection process after framing the rules formally for the said purpose, to avoid any allegations of bias or arbitrariness peeping in.
The age bar which was coming in the way of the candidates who had participated earlier was also directed to be waived by the court, considering that almost a decade had passed since the earlier selection process was initiated. The PCCF was also allowed to grant further relaxations to the respondents as it deems fit and proper in the fresh process to be initiated post cancellation of the previous one. The appeals were accordingly allowed.
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(19) Bihar Rajya Dafadar Chaukidar Panchayat v. State of Bihar114
(Delivered on 2 April 2025)
Coram: two-Judge Bench of Justices Dipankar Datta and Manmohan
Authored by: Justice Dipankar Datta
The special leave petition arose out of a judgment passed by the Division Bench of the Patna High Court dismissing the writ appeal preferred by Respondent 7 (for short, “R-7”). The father of R-7 was a chaukidar, who at the time of his retirement applied for the appointment of his son, that is R-7 in terms of the Bihar Chaukidari Cadre (Amendment) Rules, 2014 (for short, “Chaukidari Rules”). The said application was rejected on the ground that it was made after his retirement, which rejection was unsuccessfully challenged before both the Single as well as Division Bench of the High Court.
The said practice of hereditary appointment of chaukidars dated back to the pre-constitutional days, when village chaukidars (village watchmen) for lifetime were appointed, who would work without any leave or retirement and would nominate their family members at the time when they would become incapable of performing their duties, being old, infirm and weak. The Division Bench through the impugned judgment proceeded to hold the provisions of the Chaukidari Rules as violative of Articles 14 and 16 of the Constitution of India and consequently struck them down, through which the post had been made inheritable. Thus, before the Supreme Court, the special leave petition was preferred at the behest of the registered trade union, which contended that since the offending proviso to Rule 5(7) was never under challenge in the writ petition, the Division Bench clearly exceeded its jurisdiction in striking it down. The order was clearly in breach of the principles of natural justice.
Consideration by the court of the challenge
Supreme Cout reiterated that the offending provision permitting the post of chaukidar to be heritable was against the basic tenets of Article 16, which permitted entry into public service without granting equal opportunity to all others. For any provision pertaining to public employment to be reasonable, it should ideally be preceded by:
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an appropriate advertisement inviting applications from eligible aspirants to offer their candidature or/and by requisitioning names of prima facie eligible candidates from the employment exchanges;
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screening the eligible aspirants by keeping aside the ineligible;
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conducting of a process of selection meeting the tests of fairness and transparency with a body of selectors constituted in accordance with the relevant law;
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making an impartial and bias-free selection upon due assessment of the inter se merits of the aspirants;
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preparation of a merit list of candidates found suitable as per merit and arranging their names recognising such merit with due regard to rules of reservation, both vertical and horizontal;
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preparing a wait-list of candidates, if the governing rules so require; and
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then proceeding to offer appointments from the merit list as well as from the waiting list, if the occasion to operate such a waiting list does arise, giving due regard to merit and merit alone.
Referring to the judgment of Gazula Dasaratha Rama Rao v. State of A.P.115, wherein the validity of Section 6, Madras Hereditary Village Offices Act, 1895 was under challenge, the Supreme Court reiterated that if any office in question is “an office under the State”, then Article 16 squarely applies; it is always open to the court to scrutinise any law to ascertain whether the legislature by device purports to make a law which though in form appears to be within its sphere, in effect and substance reaches beyond it. Referring further to the judgments of Yogender Pal Singh v. Union of India116, court stated that rules whereby appointment is to be made from sons/near relatives or persons who are already serving in the police force or any other government office, such rules are violative of Article 16 of the Constitution of India. The court also alluded to its earlier judgments in Manjit v. Union of India117 and Southern Railways v. A. Nishanth George118, wherein the validity of the provisions of the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (for short, “LARSGESS”) was involved. Under this Scheme, the drivers and gangmen were allowed to retire prematurely and voluntarily, whereafter a “suitable ward” of the retired employee would be considered for employment. The said LARSGESS was held to be an avenue of backdoor entry into the service of the railways and thus fundamentally at odds with Article 16 of the Constitution of India. Thus, the Supreme Court has consistently deprecated the practice of making appointments to public offices heritable in nature and affirmed the constitutionality of laws which abolished such hereditary appointments.
The court then examined the contention that the offending proviso, viz. Proviso (a) to Rule 5(7), Chaukidari Rules, was never under challenge before the writ petition and therefore could not have been struck down by the High Court on its own without being expressly laid challenge to. The court held that if a party aggrieved seeks enforcement of a provision of any rule from the writ court, which is seemingly unconstitutional, it would never himself prefer to challenge the same. The High Court rightly exercised its suo motu power to declare a subordinate legislation invalid on the ground of its being manifestly contrary to fundamental right. The patent unconstitutionality of the subordinate legislation in question connected with the issue justified the exercise of the power by the writ court, when the State was given full opportunity to defend the subordinate legislation and justify its validity. Being a sentinel on the qui vive, the writ court rightly exercised its power to guard against breach of fundamental rights of others who would be affected or whose rights would be violated by virtue of the offending proviso in question.
It is a duty of the writ courts to deliver justice by declaring the subordinate legislation void to safeguard rights of others, who might likely be affected by any such legislation if egregious violation of a fundamental right is imminent. Though the said power may not be exercisable with respect to primary legislation, but subordinate legislation may be struck down in appropriate cases by applying a more nuanced approach.
Accordingly, Supreme Court dismissed the special leave petition holding that the order of the Division Bench did not warrant any interference by it.
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*Practising Advocate, Supreme Court of India and an expert in constitutional, civil and commercial laws.
**Advocate, Supreme Court of India and Associate, SVS Attorneys.
5. (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491.
6. (2020) 2 SCC 569 : (2020) 1 SCC (Civ) 799.
7. (2025) 1 SCC 798 : (2025) 253 Comp Cas 1.
10. (2024) 6 SCC 401 : (2024) 3 SCC (Cri) 217.
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