Supreme Court August 2022 Roundup| Justice UU Lalit’s plan as 49th CJI; Benami Property Law; ‘Unconventional’ Families; Release of Bilkis Bano Rapists; Hate Speeches; GST; and more

This roundup contains reports on Justice NV Ramana’s retirement as the 48th CJI; Justice UU Lalit’s plan as new CJI; Rulings on Benami Property law; Unconventional families and their rights; UP CM Yogi Adityanath Hate Speech; Orders on Release of Bilkis Bano’s rapists, PM Security lapse, Pegasus Spyware; PMLA cases; Explainers; Important references to larger/Constitution Benches and ‘Know Thy Judge’ reports on Supreme Court Judges and more.

In the month of August, as Justice NV Ramana bid adieu to the Chief Justiceship of India, Justice Uday Umesh Lalit took over as the 49th Chief Justice of India. On his last working day as the Chief Justice of India, Justice Ramana, while addressing the bar, said that he was leaving the Supreme Court in very able hands. Justice Lalit, who is due to retire in November, 2022, has highlighted three areas that he would like to work on as the new Chief. Read here.

Read: Justice UU Lalit takes oath as the 49th Chief Justice of India: His Journey, Judgments and Focus Areas as the New Chief


Top Rulings


Sections 3 and 5 of the 1988 Benami Property law “still-born” and “unconstitutional”; 2016 Amendment can only apply prospectively

In a big judgment on the Prohibition of Benami Property Transactions Act, 1988 [1988 Act], the 3-judge bench of NV Ramana, CJI* and Krishna Murari and Hima Kohli, JJ has held that Section 3 (criminal provision) read with Section 2(a) and Section 5 (confiscation proceedings) of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place and were unconstitutional from their inception.

Read more…

“Family” includes domestic, unmarried/queer relationships; Child care/maternity leave benefits cannot be denied if women do not fit into “popular imagination” of a family

“Gendered roles assigned to women and societal expectations mean that women are always pressed upon to take a disproportionate burden of childcare work.”

Read more…

‘Nothing survives after filing of Closure Report’; Supreme Court dismisses plea on sanction to prosecute UP CM Yogi Adityanath in 2007 Hate Speech case

Allegedly, a hate speech by CM Yogi Adityanath, who was then a Member of Parliament, had led to the 2007 Gorakhpur Riots.

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Supreme Court holds ‘Arbitrators cannot unilaterally issue binding and enforceable orders determining their own fees’; Justice Sanjiv Khanna partially dissents

The 3-judge bench of Dr DY Chandrachud*, Surya Kant and Sanjiv Khanna*, JJ  has held that arbitrators do not have the power to unilaterally issue binding and enforceable orders determining their own fees. While Chandrachud, J wrote the majority opinion for Surya Kant, J and himself, Khanna, J wrote a separate opinion where he agreed with the majority opinion of certain parts but disagreed on some.

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IBC prevails over Customs Act once moratorium is imposed; CBIC has limited jurisdiction, cannot initiate recovery of dues

The 3-judge bench of NV Ramana*, CJ and JK Maheshwari and Hima Kohli, JJ has held that the Insolvency and Bankruptcy Code, 2016 (IBC) would prevail over the Customs Act, 1962 to the extent that once moratorium is imposed in terms of Sections 14 or 33(5) of the IBC as the case may be, the Central Board of Indirect Taxes and Customs (CBIC) only has a limited jurisdiction to assess/determine the quantum of customs duty and other levies as it does not have the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.

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Pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015 mandatory; any violation would lead to rejection of plaint

“The Amending Act containing certain Section 12A is a toddler. The law necessarily would have teething problems at the nascent stage.”

Read more…

Also read: ‘Mediation can become a potent alternate dispute resolution device’; Supreme Court lists down the ways to make it possible

State cannot declare a GST rate and make it binding on the bidder; Supplier, being liable to pay GST, must quote the relevant HSN Code

In an important ruling of Goods and Service Tax (GST), the bench of  KM Joseph* and Hrishikesh Roy, JJ has directed that, in order to also ensure that the successful tenderer pays the tax due and to further ensure that, by not correctly quoting the GST rate, there is no tax evasion, in all Government contracts, a copy of the document, by which, the contract is awarded containing all material details shall be immediately forwarded to the concerned jurisdictional Officer. Further, for effective compliance of the direction, the tenderers must, in their bids, indicate the details of their Assessing Officers.

Read more…


Unmissable Orders


Bilkis Bano’s rapists walk free: Supreme Court issues notice to Gujarat Government

When on August 15, 2022, her rapists walked out of the prison after serving 15 years’ imprisonment based on Gujarat Government’s remission policy, Bilkis Bano found herself “bereft of words” and “numb”.

Read more…

PM Modi Security Lapse: Justice Indu Malhotra headed Enquiry Committee submits report; Supreme Courts asks Central and Punjab Governments to take further action

After Enquiry Committee headed by Justice Indu Malhotra, former Judge of the Supreme Court of India, had submitted the report on the alleged breach of security that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on 05.01 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has sent the report to the Central and State Government for appropriate action against delinquent officers.

Read more…

Bhima Koregaon| Supreme Court grants permanent bail to Dr. Varavara Rao on medical grounds

Adopting a humanitarian approach, the 3-judges Bench comprising Uday Umesh Lalit, Aniruddha Bose, and Sudhanshu Dhulia, JJ., had granted permanent bail to Bhima Koregaon accused, Dr. P. Varavara Rao solely on medical grounds.

Read more…

Prophet Remark Row| All FIRs against Nupur Sharma clubbed; Read why Supreme Court refused to form SIT

The bench of Surya Kant and JB Pardiwala, JJ has, in a relief to politician and lawyer Nupur Sharma, has transferred all the FIRs filed against her in Prophet Remark case to the IFSO Unit of the Delhi Police for the purpose of investigation.

Read more…

Expert Committee submits report before Supreme Court in Pegasus Spyware case; Matter to be heard after 4 weeks

The Court had, on 27.10.2021, in Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985 appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

Read more…

‘At least two of the issues require reconsideration’; Supreme Court agrees to hear review petition of PMLA verdict

In the judgment dated 27.07.2022 in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, the bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, JJ has, in 545-pages-long judgments, has dealt with various aspects of the Prevention of Money Laundering Act, 2002 and has upheld the validity of certain impugned provisions by holding that the same have reasonable nexus with the object sought be achieved i.e. combatting the menace of money laundering.

Read more…

Also Read: Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict

Supreme Court holds “twin conditions” under Section 45 of PMLA reasonable: Applicability to anticipatory bail, non-cognizable offences discussed; Exception highlighted

Video Explainer: Your cheat sheet to Supreme Court’s 545 pages long Money Laundering verdict 


References


Interpretation of Schedule X of the Constitution vis-à-vis Disqualification; Speaker/Governor’s powers; Judicial Review: CJI led 3-judge bench refers matter to 5-judge Constitution bench

The Court observed that this proposition of law laid down by the Constitution bench in Nebam Rebia case, stands on contradictory reasoning, which requires gap filling to uphold the constitutional morality. Hence, this question must be referred to Constitution bench for the requisite gap filling exercise to be conducted.

Read more…

“Promise of freebies by political parties may push State towards bankruptcy”, says Supreme Court; Refers matter to larger Bench

Supreme Court has referred 4 issues to a larger Bench after observing that the worry of the petitioners that under the guise of electoral promises, fiscal responsibility is being dispensed with, must also be considered.

Read more…

Can accused be tried under NI Act as well as under IPC on similar set of allegations or will it amount to double jeopardy? Larger SC bench to decide

The bench of SA Nazeer and JK Maheshwari*, JJ has called upon a larger bench to decide if on similar set of allegations of fact the accused can be tried for an offence under Negotiable Instruments Act, 1881 which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal or whether the bar of Section 300(1) Cr.P.C. would attract for such trial.

Read more…


Explainers


Can an independent counter claim under Order VIII Rule 6A CPC having nothing to do with the plaintiffs be allowed?

What happens when a candidate, in a competitive exam, uses different language in answer sheet than that filled in application form?


More Stories


Mental capacity & ability to understand consequences of acts not same; Guidelines must be in place for preliminary assessment of children above 16 years of age for trial as adults

“A child with average intelligence/IQ will have the intellectual knowledge of the consequences of his actions. But whether or not he is able to control himself or his actions will depend on his level of emotional competence.”

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Appropriate High Court for filing an appeal under Section 260A of the Income Tax Act would be the one where the Assessing Officer is situated

“A judicial remedy must be effective, independent and at the same time certain. Certainty of forum would involve unequivocal vesting of jurisdiction to adjudicate and determine the dispute in a named forum.”

Read more…

Employees cannot invoke writ jurisdiction against private educational institution for disputes relating to ordinary contract of service

“Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226.”

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Assessee cannot claim deduction by merely stating a bad debt as an irrecoverable write off without appropriate treatment in the accounts and non-compliance with Income Tax Act provisions

In the case where the Revenue had challenged Bombay High Court’s judgment affirming Income Tax Appellate Tribunal (ITAT)’s order for writing off assessee’s ₹ 10 crores as a bad debt, the 3-judge bench of UU Lalit, S. Ravindra Bhat* and Sudhanshu Dhulia, JJ has summarised the law on writing off a bad debt and has held that merely stating a bad and doubtful debt as an irrecoverable write off without the appropriate treatment in the accounts, as well as non-compliance with the conditions in Section 36(1)(vii), 36(2), and Explanation to Section 36(1)(vii) of the Income Tax Act, 1961 would not entitle the assessee to claim a deduction.

Read more…

One cannot seek transfer of execution proceeding under Section 125(3) CrPC to another Court once the order fixing maintenance attains finality

“The question as to whether the petitioner or the first respondent, who is more disabled has itself become a serious matter of challenge. It is not possible for this Court while dealing with a transfer Petition, to undertake a roving inquiry to find out who is more disabled.”

Read more…

Supreme Court sets aside Madhya Pradesh HC’s “utterly incomprehensible” judgment discharging accused in a minor’s rape case for delay in filing FIR

“The facts of this litigation are quite heart-breaking and at the same time, more disturbing is the utterly incomprehensible impugned judgment of the High Court discharging the accused of the offence of rape essentially on the ground of delay in the registration of the FIR.”

Read more…

Judgment Debtor’s right under Rule 60 of Second Schedule of Income Tax Act cannot be taken away on technical ground or bona fide mistake for which he is not at fault

“It is a right available to the judgment debtor after his property is sold in a court auction. Therefore, such a valuable right available to the judgment debtor to save his property should not be affected on the technical ground and/or for the mistake and/or the bona fide mistake for which he was not at all responsible.”

Read more…

Confessions made to Additional SP under Section 12 MCOCA not inadmissible; rank of SP includes SP, Additional SP, DCP

“A difference in the seniority of a particular officer is not the same as a difference in their ranks.”

Read more…

If a High Court converts itself into Executing Court it will be flooded with writ petitions to execute arbitral awards

“We disapprove the entertaining of such writ petitions under Article 226 of the Constitution to execute the award passed by the Arbitral Tribunal/Court, without relegating the judgment creditor in whose favour the award is passed to file an execution proceeding before the competent Executing Court.”

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Manipulated laboratory report, broken links of evidence; Supreme Court reverses concurrent findings of Courts below to acquit a murder accused

The Court observed that the chain of evidence has many missing and weak links, and none of the essential ingredients to record conviction in a case of circumstantial evidence; especially in the poisoning case were made out.

Read more…

Financial crunch a valid ground to fix cut-off date for granting actual benefit of revision of pension/pay; Rule 3(3) of Tripura State Civil Services (Revised Pension) Rules, 2009 constitutional

Holding that the cut-off date has been fixed as 01.01.2009 on a very valid ground i.e., financial constraint, it was held that the High Court manifestly erred in striking down the Rule 3(3) of the Pension Rules, 2009 being arbitrary and violative of Article 14 of the Constitution and the decision was liable to be set aside.

Read more…

Supreme Court directs Haryana Discoms to pay compound interest on carrying cost to Adani Power from the date of Change of Law

In a big win for Adani Power Limited, the 3-judge bench of NV Ramana, CJI and Krishna Murari and Hima Kohli*, JJ has directed Haryana Discoms to pay interest on carrying cost in favour of Adani Power for the period between the year 2014, when the FGD was installed, till the year 2021.

Read more…

Supreme Court directs Bihar to reconsider stipulated percentage for Homeopathic Medical Professionals posts

In an appeal filed to espouse the cause of Homeopathic Medical Professionals, the Division Bench of Uday Umesh Lalit and S. Ravindra Bhat, JJ., directed the Bihar government to reconsider the stipulated percentage for filling up the posts of Medical Professionals.

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Prosecution version helps man accused of murdering brother get benefit of provocation exception; SC holds that accused may rely on prosecution case for discharge of burden

In an interesting case, where a man was convicted for murder of his younger brother, the bench of Sanjiv Khanna* and Bela M. Trivedi, JJ has converted the conviction from Section 302 to Part I of Section 304 of the IPC after holding that to discharge the burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court.

Read more…

Clearing of prosecution evidence not an absolute bar from re-examining materials/witnesses under Section 311 CrPC

“The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.”

Read more…

CPC Order XV Rule 5| Mere denial of landlord-tenant relationship doesn’t grant tenant a holiday from duty to pay rent/damages

“In the context of the proposition of denial of relationship of landlord and tenant between the plaintiff and defendant, such a denial simpliciter does not and cannot absolve the tenant of liability to deposit the due rent/damages for use and occupation, unless he could show having made such payment in a lawful and bonafide manner.”

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Rejecting counter-claim or set-off may lead to parallel proceedings before various fora and offend the very purpose S. 23 of Arbitration Act

The Division Bench of M.R. Shah* and Sanjiv Khanna, JJ., reversed concurrent findings of the Arbitral Tribunal and the Delhi High Court rejecting the National Highway Authority of India’s (NHAI) application to file a counter-claim in a commercial dispute.

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Right to cross-examination cannot be denied as a punishment for failure to deposit interim compensation under Section 143A NI Act

In a case where an offender under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was denied the right to cross-examine a witness upon failure to deposit the interim compensation under Section 143A of NI Act, the bench of UU Lalit*, S. Ravindra Bhat and Sudhanshu Dhulia, JJ has held that any such order foreclosing the right would not be within the powers conferred upon the court and would, as a matter of fact, go well beyond the permissible exercise of power.

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Ready Reckoner Price cannot be the basis for determining compensation for land acquisition: SC declares Bombay HC’s decision per incuriam

By the instant appeal, Bharat Sanchar Nigam Limited (BSNL) had assailed the impugned order of the Bombay High Court enhancing amount of compensation for the acquired land by mainly relying upon the prevailing Ready Reckoner rates of the land. 

Read more…


Know Thy Judges


Justice N.V. Ramana, from the Hinterlands of Andhra to being the Head of Indian Judiciary, retires

♦Did You Know? Justice Ramana worked as a journalist from 1979-1980 and reported on political and legal matters for the Telegu daily newspaper Eenadu.

Read more… 

Justice Sudhanshu Dhulia

♦ Did You Know? Justice Dhulia is the brother of national award-winning film director and actor Tigmanshu Dhulia.

Read more…

 Justice J B Pardiwala

♦ Did You Know? Justice Pardiwala is expected to serve a two-year and three months term as Chief Justice of India from May 3rd 2028 to August 11th 2030.

Read more… 


Images Courtesy:

PM Narendra Modi: Press Information Bureau

CM Yogi Adiytanath: Press Information Bureau

Nupur Sharma: Wikibio

Bilkis Bano: Jan Jwar

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