Supreme Court Monthly Roundup – March 2021


TOP STORIES


‘Not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces’; Army’s evaluation of Women SSC Officers for grant of permanent commission arbitrary: SC

“The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.”

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No more asking sexual offence survivor to tie Rakhi or get married to the accused; Supreme Court calls for gender sensitisation of judges and lawyers

“Judges play – at all levels – a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors.”

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Loan Moratorium Case| Supreme Court says no to total waiver of interest and extension of moratorium period but directs full waiver of compound interest

There was no justification shown by the Government to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to only 8 categories.

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‘Reinstatement by NCLAT “too big a pill” for perhaps even Cyrus Mistry to swallow’; Supreme Court upholds Cyrus Mistry’s removal as Chairman by the Tata Sons

“NCLAT appears to have granted the relief of reinstatement gratis without any foundation in pleadings, without any prayer and without any basis in law, thereby forcing upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.”

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‘Electoral Bonds Scheme not behind iron curtains incapable of being pierced’; Supreme Court refuses to interfere with the Scheme

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”.”

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Courts can’t be helpless bystanders when prisoner opposes transfer from one prison to another; Supreme Court transfers Mukhtar Ansari’s custody to Uttar Pradesh

“A convict or an undertrial prisoner, who disobeys the law of the land, cannot oppose his transfer from one prison to another, be a convict or an undertrial prisoner, Courts are not to be a helpless bystander, when the rule of law is being challenged with impunity.”

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Appointment of Government official as Election Commissioner “a mockery of the constitutional mandate”; ECs must be independent: Supreme Court

“All State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government.”

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‘Country is returning to normalcy; Courts/Tribunals are functioning’; Supreme Court ends extension of limitation period for filing petitions/applications/suits/appeals, etc.

“We are of the opinion that the order dated 15.03.2020* has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end.”

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“Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases”; Supreme Court quashes FIR against Shillong Times Editor Patricia Mukhim

“Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities.”

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Short delay in filing appeals under section 37 of the Arbitration Act can be condoned in exceptional cases. Supreme Court overrules N.V. International verdict

Given the object of speedy disposal sought to be achieved both under the Arbitration and Conciliation Act, 1996 and Commercial Courts Act, 2015, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule.

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Proceedings instituted under Consumer Protection Act, 1986 not to be transferred to fora created under 2019 Act with newly prescribed pecuniary limits: Supreme Court

“One can imagine the serious hardship that would be caused to the consumers, if cases which have been already instituted before the NCDRC were required to be transferred to the SCDRCs as a result of the alteration of pecuniary limits by the Act of 2019.”

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Ineligible promoters under Section 29A IBC can’t propose compromise or arrangement schemes under Section 230 of the Companies Act, 2013: Supreme Court

“The purpose of the ineligibility under Section 29A is to achieve a sustainable revival and to ensure that a person who is the cause of the problem either by a design or a default cannot be a part of the process of solution.”

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Section 195(1)(b)(i) CrPC doesn’t bar prosecution by Investigation Agency against persons producing false evidence at the stage of investigation: Supreme Court

“Just like a private party who has been a victim of forgery committed outside the precincts of the Court, the investigative agency should not be left remediless against persons producing false evidence for the purpose of interfering with the investigation process.”

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Under IBC, NCLT has jurisdiction to adjudicate disputes arising solely on ground of insolvency: Supreme Court

“In all future cases, NCLT would have to be wary of setting aside valid contractual terminations which would merely dilute the value of the corporate debtor, and not push it to its corporate death by virtue of it being the corporate debtor‘s sole contract.”

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Amounts paid by Indian companies to non-resident manufacturers/suppliers for resale/use of the computer software not royalty, hence, not taxable in India: Supreme Court

DTAA provisions must be treated as law and followed by Indian courts, notwithstanding what may be contained in the Income Tax Act to the contrary, unless more beneficial to the assessee.

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MORE STORIES


Farooq Abdullah’s Article 370 comment| ‘Dissent from Govt’s decision cannot be said to be seditious’; SC junks “publicity interest litigation”; imposes heavy costs

“This is clearly a case of publicity interest litigation for the petitioners only to get their names in press.”

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SC calls for amendment to Sections 11(7) & 37 of the Arbitration and Conciliation Act, 1996. Read how Vidya Drolia judgment has led to an anomaly

Parliament may need to have a re-look at Section 11(7) and Section 37 so that orders made under Sections 8 and 11 are brought on par qua appealability as well.

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3 years’ limitation period ‘unduly long’; Necessary for Parliament to fill the vacuum by prescribing a specific period of limitation under Section 11 of the Arbitration and Conciliation 1996: SC

3 years is an unduly long period for filing an application under Section 11, since it would defeat the very object of the Act, which provides for expeditious resolution of commercial disputes within a time bound period.

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‘Section 138 NI Act proceeding a “civil sheep” in a “criminal wolf’s” clothing’; quasi criminal proceedings against corporate debtor covered under Section 14(1)(a) IBC : SC

“A Section 138 proceeding can be said to be a “civil sheep” in a “criminal wolf’s” clothing, as it is the interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a court in cheque bouncing cases.”

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“A classical case of how civil proceedings can be prolonged ad infinitum”, SC imposes costs of Rs. 1 lakh for dragging execution proceedings in an eviction case for 12 years

“The landlord filed suit for possession which succeeded right till this Court. The execution proceedings filed in the year 2009 has dragged on for 12 years. This application filed by the petitioner itself was an abuse of process of law.”

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‘Commercial wisdom of Committee of Creditors is not to be interfered with’; Supreme Court sheds light on the limited scope of interference by NLAT/NCLAT

“The limited judicial review, which is available, can in no circumstance trespass upon a business decision arrived at by the majority of CoC.”

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Adjudicating authority under IBC may disapprove the resolution plan approved by the Committee of Creditors but cannot modify it: Supreme Court

“If, within its limited jurisdiction, the Adjudicating Authority finds any shortcoming in the resolution plan vis-à-vis the specified parameters, it would only send the resolution plan back to the Committee of Creditors, for re-submission after satisfying the parameters delineated by the Code and exposited by this Court.”

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Curtailing vexatious litigation is a crucial step towards a more effective justice system; Supreme Court examines role of lower judiciary in preventing abuse of process

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

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Written intimation of hearing just before commencement of video conference hearing by Advisory Board leads to SC quashing detention of man in a gold smuggling case

Bhargav Kanubhai Tanti was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) for his alleged involvement in smuggling of 1300 kgs of Gold.

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Criminal proceedings cannot be permitted to degenerate into weapon of harassment; HCs must quash frivolous FIRs: Supreme Court

“Inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.”

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Where one party habitually resides in a foreign country, arbitration becomes an international commercial arbitration even when the business is being carried through an office in India: SC

“If at least one of the parties was either a foreign national, or habitually resident in any country other than India; or by a body corporate which was incorporated in any country other than India; or by the Government of a foreign country, the arbitration would become an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India.”

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Application under S. 7 or S. 9 IBC is an independent proceeding unaffected by winding up proceedings that may be filed qua the same company

“…every effort should be made to resuscitate the corporate debtor in the larger public interest, which includes not only the workmen of the corporate debtor, but also its creditors and the goods it produces in the larger interest of the economy of the country.”

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Can departmental proceedings be initiated for charges including vigilance angle without approval of CVC? SC examines validity of departmental actions

“Anyone can make mistakes. The consequences of mistakes should not be unduly harsh”

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Whether a residential accommodation for nuns/students would fall under “religious or educational purposes” and be qualified for tax exemption? Supreme Court explains

“We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted.”

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UP Police Constables appointments| Shifting of candidates selected against posts meant for reserved categories, to open category as per Court directions hence valid: Supreme Court

“With the availability of 3295 additional posts, in the re-working exercise, if the candidates who were already selected against reserved posts were entitled to be considered against open category posts, that exercise cannot be termed as illegal or invalid on any count.”

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Aim of every Court is to discover the truth but it should be done judiciously; Recording of reasons for reversal of lower court’s decision vital: SC

“Wider the power, greater is the necessity of caution while exercise of judicious discretion”

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Court appointed IRP Anuj Jain’s arrest over Yamuna Expressway accident killing 7 appalling; SC directs immediate release; issues notice to Investigating Officer

“It is seen that the police official dealing with the case is not familiar with the provision of privilege of interim resolution appointed by the Court, in terms of Section 233 of the Insolvency and Bankruptcy Code.”

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Can reservation for OBCs exceed upper ceiling of 50% in local elections for entirely scheduled areas? Supreme Court explains triple test pre-requisite

“The barriers to political participation are not of the same character as barriers that limit access to education and employment.”

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In what circumstances can a criminal proceeding be quashed? Supreme Court yet again answers the “hotly debated” question on scope of exercise of HCs’ power under Section 482 CrPC

“The exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

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Can ossification test held after 38 years of incident be conclusive to prove juvenility on the date of incident? SC answers

“The ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age.”

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Aggrieved by an order refusing condonation of delay in filing application under section 34 of the Arbitration Act, 1996? Appeal lies, holds Supreme Court

“Undoubtedly, a limited right of appeal is given under section 37 of the Arbitration Act, 1996. But it is not the province or duty of this Court to further limit such right by excluding appeals which are in fact provided for, given the language of the provision.”

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Reservation and filling up of backlog vacancies: SC explains applicability of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016

“Such of the candidates who have made it on their own merit albeit, from reserved category, have not sought the benefit of the reservation. Thus, Section 27 of the Act would have nothing to do up to that point. Section 27 would apply only when the reservation principle begins, which is after filling up of the seats on merit.”

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“Recruitment to public services must command public confidence”; Supreme Court upholds cancellation of DSSSB Head Clerk selection process in light of “systematic irregularities”

“When the credibility of an entire examination stands vitiated by systemic irregularities, the issue then is not about seeking to identify the candidates who are tainted.”

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“Permission cannot be granted to Medical Colleges which lack necessary infrastructure and facilities”; SC directs Jharkhand government to rectify deficiencies

“Perusal of the facts mentioned above would show that not much interest has been taken by the State in ensuring that the necessary faculty, infrastructure and other facilities are improved.”

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Limitation for challenging arbitral award can only commence from date of receipt of signed copy and not from the receipt of draft: Supreme Court

“There is only one date recognised by law i.e. the date on which a signed copy of the final award is received by the parties, from which the period of limitation for filing objections would start ticking. There can be no finality in the award, except after it is signed, because signing of the award gives legal effect and finality to the award.”

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EXPLAINERS


Scope of judicial interference in election matters relating to delimitation of constituencies and allotment of seats, specifically in municipal elections

Waiver| An intentional relinquishment of a right; an agreement not to assert a right

Interpreting ‘similar words’ in ‘distinct settings’


IN OTHER NEWS


Former Supreme Court Judge Surinder Singh Nijjar passes away

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