“Independence and adherence to constitutional accountability and limits while exercising the power of judicial review gives constitutional legitimacy to the court decisions.”
– Justice Hemant Gupta
Madras Bar Association v. Union of India
Justice Hemant Gupta was born on October 17, 1957. He was enrolled as an Advocate in July 1980 and practiced at High Court of Punjab and Haryana after spending initial few years practicing in the District Courts, Chandigarh. As an advocate justice Gupta mainly dealt with the civil cases including Labour, Company, Constitutional and Service Law.
♦Did you Know? Justice Hemant Gupta’s grandfather was a prominent civil lawyer and his father retired as Chief Justice of Punjab and Haryana High Court in the year 1991.
Justice Gupta was appointed as Judge of Punjab and Haryana High Court on July 2, 2002. He was Executive Chairman of the State Legal Services Authority, U.T. Chandigarh from July 2012 to January, 2016.
♦Did you Know? Justice Hemant Gupta was the member of the Computer Committee, Punjab and Haryana High Court, for more than 10 years.
Justice Gupta sworn in as a judge of Patna High Court on February 8, 2016 and was appointed as Acting Chief Justice of that High Court on October 29, 2016. In March 2017, he was sworn in as the Chief Justice of the Madhya Pradesh High Court. He was elevated to Supreme Court of India on November 2, 2018.
♦Did you Know? Justice Hemant Gupta served as Additional Advocate General of Punjab from 1997 to1999.
Notable Judgments at Supreme Court
Union of India v. Onkar Nath Dhar, 2021 SCC OnLine SC 574
“The right to shelter does not mean right to government accommodation.”
The Division Bench of Hemant Gupta* and A.S. Bopanna, JJ., expressed that Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.
Salim D. Agboatwala v. Shamalji Oddhavji Thakkar, 2021 SCC OnLine SC 735
The bench of Hemant Gupta and V. Ramasubramanian*, JJ has explained the scope of a “very strange provision” under Section 85A of the Maharashtra Tenancy and Agricultural Lands Act, 1948 and has held that
“Though Section 85(2) mandates that no order of the Mamlatdar, the Tribunal, the Collector or the State Government passed under the Act shall be questioned in any Civil or Criminal Court, the bar contained therein stands diluted to some extent under Section 85-A.”
The Court said that such a provision is not found in many other statutes which contain provisions barring the jurisdiction of Civil Courts.
Harish Kumar Khurana v. Joginder Singh, 2021 SCC OnLine SC 673
A Division Bench comprising of Hemant Gupta and A.S. Bopanna*, JJ. absolved a doctor and a hospital of liability for medical negligence. The Supreme Court said that failure of treatment cannot automatically make the medical professional liable for medical negligence. It was observed:
“Every death of a patient cannot on the face of it be considered as death due to medical negligence unless there is material on record to suggest to that effect.”
State of M.P. v. Pujari Utthan Avam Kalyan Samiti, 2021 SCC OnLine SC 667
Bench of Hemant Gupta* and A.S. Bopanna, JJ., while addressing the matter pertaining to rights of the priest, observed that:
“Pujari is only to perform puja and to maintain the properties of the deity.”
“…name of the Collector as manager cannot be recorded in respect of property vested in the deity as the Collector cannot be a manager of all temples unless it is a temple vested with the State.”
Bhimrao Ramchandra Khalate v. Nana Dinkar Yadav, 2021 SCC OnLine SC 582
A Division bench of Hemant Gupta* and AS Bopanna, JJ has held that in order to determine whether a document is that of a mortgage or a conditional sale, the intention of the parties has to be seen when the document is executed.
Krishna Gopal Tiwary v. Union of India, 2021 SCC OnLine SC 581
The Division Bench of Hemant Gupta* and A.S. Bopanna, JJ., addressed whether 2010 amendment in Gratuity Act contemplating Rs 10 lakhs as amount of gratuity would have retrospective effect, held that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity was one-time available to the employees only after the commencement of the Amending Act.
Parubai v. State of Maharashtra, 2021 SCC OnLine SC 566
“Natural human conduct is to first save oneself.”
A Division Bench comprising of Hemant Gupta and A.S. Bopanna*, JJ. reversed the conviction of the accussed−appellant who was convicted for the murder of her husband’s first wife and their children. The Supreme Court held that the chain of circumstantial evidence was not complete, and gave her benefit of doubt.
State of Haryana v. Raj Kumar, 2021 SCC OnLine SC 539
A Division Bench of Hemant Gupta* and A.S. Bopanna, JJ. disposed of a criminal appeal holding, inter alia, that if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release; but in case of the prisoner who has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon, reprieve, respite and remission of punishment or to suspend, remit or commute the sentence of any person.
Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768
Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.
“The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives.”
Smriti Madan Kansagra v. Perry Kansagra, 2020 SCC OnLine SC 887
A 3-judge bench of UU Lalit, Indu Malhotra* and Hemant Gupta**, JJ has, in a 2:1 verdict, has transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.
“Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.”
Disagreeing with Justice Malhotra’s opinion, Justice Gupta held that the child should be given liberty to choose his destination after he comes out of age.
“From the controlled and supervised household of the mother, if the custody is given to the father, the sudden exposure to the materialistic things have the potency to derail the studies and wellbeing of the growing child.”
Pankjeshwar Sharma v. State of J&K, 2020 SCC OnLine SC 984
“Negative equality cannot be claimed to perpetuate further illegality”
A 3-Judge Bench comprising of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi*, JJ. held that any appointments made deviating from merit in exceptional cases can be justified, like in instant case viz. to give quietus to litigation, however such appointments would be irregular appointments, though not illegal and the candidates left out of merit list has no right to claim the same benefit which was provided to some other candidates on basis of some erroneous concession granted by the State. The Court restated that negative equality cannot be claimed to perpetuate further illegality.
“In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down.”
Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710
A 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ, in a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, held that no offence had been committed under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 because the insulting or intimidating of a person belonging to a SC/ST community will not be counted as offence under the Act unless such insult or intimidation is on account of them being a member of the SC/ST community.
“The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”
Hindustan Unilever Ltd. v. State of M.P., 2020 SCC OnLine SC 905
The 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ., in a case relating to the adulteration of Dalda Vanaspati Khajoor Brand Ghee dating back to 1989 wherein the company was absolved of all charges but prosecution against it’s nominated office Nirmal Sen was continued, held that in the absence of the Company, the Nominated Person cannot be convicted or vice versa i.e. either both of them are convicted or none of them.
“Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.”
Umedsinh P Chavda v. Union of India, 2020 SCC OnLine SC 500
In a public interest litigation (PIL) seeking ban on sale of Coca cola, Thums Up and Soft Beverages, the 3-judge bench of Dr. DY Chandrachud, Hemant Gupta and Ajay Rastogi, JJ., has imposed a fine of Rs 5,00,000 on the petitioner for abuse of process.
Prerit Sharma v. Bilu B.S., 2020 SCC OnLine SC 961
The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., by passing an interim order directed that there will be no reservation for to in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021.
IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026
The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.
C. Bright v. District Collector, (2021) 2 SCC 392
The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ while upholding the Kerala High Court’s decision, held that the time-limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time-limit does not render the District Magistrate functus officio. Time-limits stipulated in the section, are directory and not mandatory.
Interpreting Section 14 of the SARFAESI Act, the Court said that
“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”
Rajat Sharma v. Union of India, 2021 SCC OnLine SC 162
The bench of Sanjay Kishan Kaul and Hemant Gupta, JJ has imposed a cost of Rs. 50, 000 on petitioners for filing a “publicity interest litigation” seeking initiation of proceeding against former J&K Chief Minister Farooq Abdullah for his “pro-China” comments over the abrogation of Article 370 of the Constitution.
Arvind Singh v. State of Maharashtra, 2020 SCC OnLine SC 400
While allowing the appeal in part against death sentence awarded by the Nagpur Bench of Bombay High Court, the Court observed,
“What is required to be examined is whether there is a possibility of rehabilitation and whether it is the rarest of the rare case where the collective conscience of the community is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The manner of commission of murder when committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner are aggravating factors.”
Laxmibai v. Collector, 2020 SCC OnLine SC 187
Hearing an appeal against the order of the High Court dismissing writ petition against an order of disqualification on account of non-submission of election expenses within the period prescribed, it was held,
“The purity and transparency in election process does not give unbridled and arbitrary power to the Election Commission to pass any whimsical order without examining the nature of default. The extent of period of disqualification has to be in proportion to the default. The Election Commission has to keep in mind that by such process, an election of duly elected candidate representing collective will of the voters of the constituency is being set at naught.”
Jaishri Laxmanrao Patil v. Chief Minister, 2020 SCC OnLine SC 727;
A full judge bench of L. Nageswara Rao, Hemant Gupta and S.Ravindra Bhat, JJ., while referring the Constitution (102nd Amendment) Act, 2018 to a larger bench, held,
“The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.”
The Bench further directed that the admissions to educational institutions and appointments to public services/posts under the government, shall be made irrespective to the reservations provided under, Maharashtra State Reservation (of seats for admission in Educational Institutions in the State and for appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018.
Union of India v. Exide Industries Ltd., (2020) 5 SCC 274;
A full judge bench of A.M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari, JJ., deciding on the validity of clause (f) to Section 43-B Income Tax Act, 1961, held,
“To hold a provision as violative of the Constitution on account of failure of the legislature to state the Objects and Reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison d’être behind this self-imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each other’s wisdom in the exercise of their duties. In other words, the time-tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted law.”
State of Bihar v. Sachindra Narayan, (2019) 3 SCC 803;
In an appeal against the order of a Division Bench at Patna High Court, mandating the State authorities to give financial assistance on the ground of legitimate expectation, the Court observed,
“(…)legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.”
N.K. Janu v. Lakshmi Chandra, 2019 SCC OnLine SC 518;
While making significant observation with respect to the power of Court to summon public officers, it was said,
“The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.”
Amit Kumar Roy v. Union of India, (2019) 7 SCC 369;
A division bench of D.Y. Chandrachud and Hemant Gupta, JJ., adjudicating upon the interplay of Article 19(1)(g) and the statutory restrictions on members of Indian Airforce, said,
“A person who has been enrolled as a member of the Air Force does not have an unqualified right to depart from service at his or her will during the term of engagement. Such a construction, as urged on behalf of the appellant, will seriously impinge upon manning levels and operational preparedness of the Armed Forces.”
Mani Pushpak Joshi v. State of Uttarakhand, 2019 SCC OnLine SC 1362
The bench of L Nageswara Rao and Hemant Gupta*, JJ said while quashing the trial against a member of the School management in a case relating to sexual assault of a 6-year-old girl in her school in Haldwani.
“The heinous crime committed should not be led into prosecuting a person only because he was part of the Management of the School.”
Channu Lal Verma v. State of Chhattisgarh, 2018 SCC OnLine SC 2570
“Society’s perspective is generally formed by the emotionally charged narratives, which need not necessarily be legally correct, properly informed or procedurally proper.”
The Bench comprising of Kurian Joseph, Deepak Gupta and Hemant Gupta, JJ. partly allowed the appeals while modifying the death sentence to life imprisonment.
Deepak Gupta and Hemant Gupta, JJ. gave a supplementing opinion in which they agreed with Justice Kurian Joseph on all points except the observation in regard to the death penalty quoted above.
Notable Judgments at High Court
Ram Sewak Mishra v. State of M.P., 2017 SCC OnLine MP 1546;
Deciding on the validity of an executive action wherein no adequate opportunity of hearing was provided to a Government employee charged under Prevention of Corruption Act, 1988, Justice Gupta noted,
“The rule of audi alteram partem is the rule of the law without which law would be lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. The concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application. Whether or not the application of the principles of natural justice in a given case has been excluded, wholly or in part, in the exercise of statutory power, depends upon the language and basic scheme of the provision conferring the power, the nature of the power, the purpose for which it is conferred and the effect of the exercise of that power. The procedural precondition of fair hearing, however minimal, even post-decisional, has relevance to administrative and judicial gentlemanliness.”
Nitin Pathak v. State of M.P., 2017 SCC OnLine MP 1824
“The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power.”
While examining the question as to whether in exercise of power of judicial review the Court can refer the matter to a Court chosen expert or whether the Court itself can act as Court of appeal and make a different view than what has been finalised as the model answer key by the Examining Body, a Full Bench consisting of Hemant Gupta*, C.J. and C.V. Sirpurkar and Vijay Kumar Shukla, JJ held that
“…this Court does not and should not act as Court of Appeal in the matter of opinion of experts in academic matters as the power of judicial review is concerned, not with the decision, but with the decision-making process. The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power.”
Saurabh Singh Baghel v. State of M.P., 2018 SCC OnLine MP 730
A Division Bench comprising of Hemant Gupta*, CJ. and Vijay Kumar Shukla, J. while hearing a batch of writ petitions against government’s shifting policy pertaining to appointment of guest teachers in government schools, held that the aim of Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) is to impart education to students and not to protect teachers.
Popular Plastic v. State of M.P., 2018 SCC OnLine MP 635
A 2-Judge Bench comprising of Hemant Gupta*, CJ., and Vijay Kumar Shukla, J., addressed four writ petitions having similar issues. These petitions challenged notification issued by the State Government prohibiting the manufacturing, storage, transportation, sale and use of the plastic carry bags in the entire State.
Vajid Ali v. State of M.P., 2018 SCC OnLine MP 418
A 2-Judge Bench of Hemant Gupta, CJ., and Jijay Kumar Shukla, J., dismissed a writ appeal, and affirmed the order passed by a Single Judge Bench, rejecting the claim of appellant for appointment on compassionate ground for acquittal in a criminal case, wherein, the appellant was facing 2 criminal trials, and was acquitted in both. The Court referred Ashutosh Pawar v. High Court of M.P, 2018 (2) MPLJ 419 in which it was held that acquittal, by itself, from a criminal case cannot be a proof of a good character. In light of the above observations the Court found the writ petition been rightly dismissed by the Single Judge Bench and therefore dismissed the present appeal.
Authorized Officer v. Prafulla Kumar Maheshwari, 2018 SCC OnLine MP 325
In a matter arising under Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, a Division Bench comprising of Hemant Gupta, CJ and Atul Sreedharan, J. allowed a writ appeal and set aside the Orders of the learned Single Judge as well as the Debts Recovery Tribunal.
TBCL Shiv Shakti Construction Co. v. State of M.P., 2018 SCC OnLine MP 351
The petitioner, who challenged the eligibility of Respondent 5 to participate in the Tender process, was left high and dry when the Division Bench comprising of Hemant Gupta, CJ and Vijay Kumar Shukla, J. held that the Court in exercise of judicial review, will not sit as a Court of appeal over the decision taken by a committee of experts.
Ambika Kaul v. Central Board of Secondary Education, 2015 SCC OnLine P&H 1669
Denouncing the tendency of the people to give older date of birth in the matriculation examination to qualify in the matriculation examination but then to rely upon the birth certificate that he is younger in age at the time of employment, cannot be countenanced, the division bench comprising of Hemant Gupta* and Lisa Gill, JJ., held that though the Birth Certificate carries with it a presumption of correction being maintained by a public office in discharge of his official duties, even then, in the case of there being variation in the date of birth in the Birth Certificate and the Matriculation Certificate a person would be estopped as per the law of estoppel laid down in Section 115 of the Evidence Act, 1872, from disputing the same in the guise of correcting the mistake in the Matriculation Certificate.
Aditi Sharma v. State of Punjab, 2015 SCC OnLine P&H 2653
In an appeal filed by the appellants for regularization of their admission to BDS course, the Division Bench comprising of Hemant Gupta* and Lisa Gill, JJ., held that the admissions cannot be regularized as they had taken place in violation of the regulations provided by the Punjab Private Health Sciences Educational Institutes (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, the Dental Council of India and by the State Government.
†Updated by Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd.
††Cases up to October, 2020 curated by Sakshi Shukla.
* Judge who has penned the judgment.
** Judge who has penned the dissenting opinion