Supreme Court September 2022| Abortion Rights to all ‘women’; Marital Rape; Pre-sentence hearing of death row convicts; Sidhique Kappan’s bail; Collegium Recommendation; and more

This roundup revisits the analyses of Supreme Court’s judgments/orders on Unmarried persons’ right to safe abortion, Inclusion of ‘marital rape’ under Abortion laws, Journalist Sidhique Kappan’s bail; Constitution Bench’s opinion on Doctrine of Precedents; Reference of question relating to Pre-sentence hearing of death row convicts; Explainers on important law points; Collegium Recommendation; and more

Top Story – Right to Safe Abortion

Unmarried persons cannot be denied rights based on narrow patriarchal principles on “permissible sex”: Key takeaways from SC’s historic verdict on right to safe abortion

While the interim order was passed in the case on 21.07.2022, the Supreme Court took over two months to write a far-reaching 75-pages-long verdict, touching upon various aspects like purposive interpretation of Medical Termination of Pregnancy laws, equal status of married and unmarried or single women, right to reproductive autonomy, right to dignity, effect of unwanted pregnancy on mental health of women, etc.

Read more…

Video Explainer: Unmarried persons have right to abortion; Marriage not a precondition: Supreme Court

“Sexual assault” or “rape” under Medical Termination of Pregnancy laws includes “marital rape”: holds Supreme Court, without changing the contours of ‘rape’ defined under Section 375 IPC

“The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors.”

Read more…

Video Explainer: Sexual assault or rape under Abortion laws includes ‘marital rape’: Supreme Court 

Constitution Bench

Binding nature of a judgment depends on the Bench Strength and not the numerical strength of the Judges taking majority view

Explaining the doctrine of precedents, the 5-judge Constitution Bench of Indira Banerjee*, Hemant Gupta*, Surya Kant, MM Sundresh and Sudhanshu Dhulia, JJ has held that the numerical strength of the Judges taking a particular view is not relevant, but the Bench strength is determinative of the binding nature of the Judgment.

Read more…


Pre-sentence hearing in Capital Punishment Cases: Mandatory or discretionary? CJI lead 3-judges Bench refers question to Constitution Bench


Determination of Juvenility: Hierarchy of documents that can be relied on; belated plea if can be allowed; Bone ossification test at a belated stage

“Known source of income” under Section 13(1)(e) of PC Act, 1988 means the sources known to the prosecution or the accused?

Party willing to pay but has no funds: Will it amount to readiness and willingness for specific performance of a contract?

Can sentence of a murder convict be reduced to sentence already undergone which was less than life imprisonment?

Retroactive, True Retroactivity, Quasi-retroactivity, and Retrospective: Synonymous or distinct?

Admiralty Law: Scope of Intra-Court appeals from interim orders to Commercial Appellate Division of the High Court

Dishonour of Cheques: Can non-executive Directors of the accused company be held vicariously liable under Section 141 NI Act?

Order 6 Rule 17 CPC: Doctrine of dominus litus for amendment of plaint

Freedom of Speech

Prophet Remark Row| All FIRs against Journalist Navika Kumar clubbed. Here’s how Supreme Court’s order in Nupur Sharma case helped her

Various FIRs/criminal complaints have been filed against Kumar, along with politician and lawyer Nupur Sharma, in different police stations in different States in relation to the Newshour Debate telecasted on Times Now on 26.05.2022, where some objectionable remarks were made against the Prophet, thereby allegedly hurting religious sentiments.

Read more…

Service Law

Hiding criminal antecedents while applying for Government job? Good enough reason for employer to terminate services. Supreme Court lays down clear principles governing such cases

While dealing with a case relating to termination of a CRPF probationer for suppressing material information relating to his criminal antecedents, the bench of Surya Kant and JB Pardiwala*, JJ realised that the principles of law laid down in various rulings governing the subject were inconsistent.

Read more…

Supreme Court holds private school teachers entitled to gratuity; upholds Constitutional validity of Payment of Gratuity (Amendment) Act, 2009

“When the legislature acts within its power to usher in a valid law and rectify a legal error, even after a court ruling, the legislature exercises its constitutional power to enact the law and does not overrule an earlier court decision.”

Read more…

Make way for the outsiders: Compassionate Appointment cannot be extended to heirs of the retiring employees, holds Supreme Court 

“If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified.”

Read more…

Punjab/Haryana Superior Judicial Services| Can candidates seek disclosure of marks through RTI before viva-voce? SC decides

“The disclosure of the marks in the main examination before it is finalised and the viva-voce is conducted, would be against the principles of transparency, rather it will invite criticism of bias or favouritism.”

Read more…

Supreme Court finds High Court and Tribunal finding erroneous for applying standard meant for ad hoc promotions to the case of regular promotions

In three appeals against an order directing separate zone of consideration for promotion of Scheduled Caste (SC)/Scheduled Tribe (ST) candidates to the post of Superintendent in Customs and Central Excise Commissionerate (CEC) from the post of Inspector, the division bench of Hemant Gupta* and Vikram Nath, JJ. has observed that the Tribunal and the High Court answered a question that did not arise. Therefore, the Court finds their orders clearly erroneous and not sustainable in law as the orders passed for regular promotion by extending the zone of consideration did not arise.

Read more…


Arbitration clause, even without the words “final and binding”, valid if the intention of the parties, to abide by arbitrator’s decision, is clear: Supreme Court

When Section 7 or any other provisions of the Arbitration and Conciliation Act, 1996 do not stipulate any particular form or requirements, it would not be appropriate for a court to gratuitously add impediments and desist from upholding the validity of an arbitration agreement.

Read more…

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.

Read more…

Constitutionality of Laws

Delhi Land Reforms Act 1954 a special law; Succession provided in Hindu Succession Act 1956 will not prevail over it

In a case where challenge was made to declare Section 50(a) of the Delhi Land Reforms Act, 1954 unconstitutional being ultra vires Articles 14, 15, 254 and 21 of the Constitution of India, the bench of Hemant Gupta and Vikram Nath*, JJ has held that all the legislations included in the Ninth Schedule to the Constitution before the Judgment in the case of Kesavananda Bharati vs. State of Kerala, 1973 (4) SCC 225 that is 24.04.1973, would stand protected under Article 31B of the Constitution and, therefore, the challenge to the validity of provisions of the 1954 Act must fail.

Read more…

Supreme Court upholds the constitutional validity of the Haryana Sikh Gurdwara (Management) Act, 2014

The Court observed that the Statement of Objects and Reasons of the Haryana Sikh Gurdwara Management Bill, 2014 provides that the Bill is an earnest effort to provide a legal procedure by which the Gurdwaras can be brought effectively and permanently under the exclusive control of the Sikhs of Haryana for their proper use, administration, control and financial management reforms to make it consistent with the religious views of the said community.

Read more…

Crime and Punishment

Reversing acquittal of only 2 out of 22 acquitted murder accused, despite glaring contradictions between witness testimonies, illogical; SC sets aside Karnataka HC verdict

“We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them”.

Read more…

Imposing higher punishment on an illiterate senior citizen, merely because psychotropic substance was recovered from her residence, wrong; SC reduces sentence

“neither the trial Court nor the High Court has considered that the lady was illiterate and a senior citizen, was indeed residing but completely unknown to law, with two grown up children, with no previous background of being involved in any kind of criminal cases at any point of time in her lifetime”.

Read more…

Dishonour of Cheques

Dishonour of Cheque — S. 141 NI Act| Complainant only supposed to have general knowledge of person(s) in charge of company/firm; Burden on Director/Partner to prove their innocence: SC 

“Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint, it must be shown that no offence is made out at all against the Director or Partner.”

Read more…

Drafting, Pleading, Practice and Procedure

Bar under Order II Rule 2 CPC cannot apply to an amendment sought on an existing suit; Supreme Court lays down Principles for Amendment of Pleadings

 On the question as to whether Order II Rule 2 CPC can be made applicable to an application for amendment of plaint, the bench of Aniruddha Bose and JB Pardiwala*, JJ has held that Order II Rule 2 of the CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview, and cannot apply to an amendment which is sought on an existing suit.

Read more…

Clever drafting cannot result into Plaintiff getting relief indirectly which otherwise cannot be given

“It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance.”

Read more…

Supreme Court observes documents relied upon for formation of opinion under Rule 3 of the SEBI Adjudication Rules 1995, not required to be disclosed to the noticee unless relied upon in the inquiry

In a special leave petition against the impugned judgment passed by the Bombay High Court, whereby, the Court dismissed the writ petition filed by the petitioner to sought directions against Securities and Exchange Board of India (SEBI) to forthwith furnish the documents relied upon by them to issue Show Cause Notice to the petitioner, the division bench of Indira Banerjee* and A.S. Bopanna, JJ. has observed that there was no procedural irregularity, at least till the stage of notice fixing a date of hearing and the High Court rightly did not interfere with the proceedings at the stage of the Show Cause Notice, thus, there is no infirmity in the impugned judgment of the High Court of dismissing the writ petition.

Read more…

Preliminary inquiry & opportunity of hearing to would-be accused under Section 340 CrPC: Whether mandatory? Supreme Court answers

“The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent.”

Read more…


‘Right to establish an educational institution is a fundamental right’; Pharmacy Council of India can only impose moratorium by way of a law and not by execution instruction

The ruling came in a case where the Court was called upon to decide whether the moratorium, as imposed by the Pharmacy Council of India (PCI), could have been imposed by resolution/communications dated 17.07.2019 and 09.09.2019, which is in the nature of an executive instruction of the Central Council.

Read more…


Non-disclosure of assets in the municipal elections would also amount to ‘undue influence’ and consequently to ‘corrupt practice’

In a Special leave petition under Article 136 of the Constitution against a judgment passed by the High Court of Karnataka, wherein the court set aside the election of the appellant to the Mysore Municipal Corporation as Councillor, the full bench of Uday Umesh Lalit, CJ., Indira Banerjee* and Ajay Rastogi, JJ. has affirmed the setting aside of the election of the appellant and observed that the non-disclosure of assets would amount to ‘corrupt practices’, entailing disqualification, as evident from Sections 35 and 39(ii) of the Karnataka Municipal Corporations (KMC) Act, read with Section 123(2) of the Representation of People (RP) Act 1951.

Read more…

Environment Protection

Entire country under impression that Re-Rolling Steel Plants do not require prior Environmental Clearance; NGT right in giving such plants opportunity to meet the requirement

The bench of Hemant Gupta* and Vikram Nath, JJ. has observed that there was no error in the order passed by the Tribunal that opportunity should be provided to re-rolling or cold rolling units to fall within Environmental Clearance (EC) regime by granting a period of at least one year to operate for the purpose. However, the order of closure of the unit cannot be sustained.

Read more…

Closure of Bio-Medical Waste Treatment Facility, only for want of prior Environmental Clearance, would be against public interest

“This Court cannot lose sight of the fact that the operation of a Bio-Medical Waste Treatment Facility is in the interest of prevention of environmental pollution. The closure of the facility only on the ground of want of prior Environmental Clearance would be against public interest.”

Read more…

Supreme Court upholds eco-sensitive zone notifications for Sanjay Gandhi National Park and Thane Flamingo Creek Sanctuary; Huge relief to developers and flat buyers

The applicant submitted that the eco-sensitive zone (ESZs) around Sanjay Gandhi National Park has already been notified vide final notification dated 05.12.2016 and the eco-sensitive zone around Thane Flamingo Creek Sanctuary has already been notified vide final notification dated 14.10.2021. Thus, the judgment dated 03.06.2022 which directs that each protected forest, that is a national park or wildlife sanctuary must have an eco-sensitive zone of minimum one kilometre wide, would not be applicable to them.

Read more…


Two persons died after first dose of Covishield due to severe adverse effects following immunization; Supreme Court issues notice Central Government

The petitioner submitted that her 18-years-old daughter received first dose of Covishield Covid-19 vaccine on 29-05-2021 and lost her life on 19-06-2021. Similarly, 20-years-old daughter of petitioner 2 received the first dose of Covishield Covid-19 vaccine on 18-06-2021 and she lost her life on 10-07-2021. Both the petitioners alleged that after vaccination, the deceased girls suffered from severe Adverse Effects Following Immunization (AEFI).

Read more…

Insolvency and Bankruptcy

IBC’s Section 53 does not over-ride Section 48 of GVAT Act; Adjudicating Authority may reject Resolution Plan if it ignores statutory dues payable to State/Legal authority

Holding that NCLAT clearly erred in its observation that Section 53 of the IBC over-rides Section 48 of the GVAT Act, the Court observed that, Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 or any other provisions of the IBC.

Read more…

IBC-Limitation| Pendency of proceedings in a parallel forum not sufficient cause for delay in filing Section 9 IBC application: Supreme Court

“A claim may not be barred by limitation. It is the remedy for realisation of the claim, which gets barred by limitation.”

Read more…

SC upholds applicability of SEBI Circular; but gives a green signal to Reliance Commercial Finance resolution to avoid “unscrambling of resolution process” 

“Such unscrambling of the resolution process will not only prove time-consuming, but may also adversely affect the agreed realized gains to the retail debenture holders, who have already consented to the negotiated settlement before the High Court.”

Read more…

Land and Property

Supreme Court pulls up Ludhiana Improvement Trust for sitting over an acquired land for three decades without paying for it; says ‘citizen’s right cannot be taken for a ride’ like this 

“The Improvement Trust behaved as if it had some superior right to appropriate the property of the owners without paying for it contrary to the mandate of the LA Act.”

Read more…


Journalist Sidhique Kappan gets bail after 23 months in prison; cannot leave Delhi for 6 weeks: Supreme Court 

The Kerala journalist was arrested under the Unlawful Activities (Prevention) Act on his way to Hathras, Uttar Pradesh to report on the alleged gang-rape of a Dalit woman, who later died in the Hospital.

Read more…

In other News

SC Collegium recommends Bombay HC Chief Justice Dipankar Datta for elevation as Supreme Court judge

Must Watch

maintenance to second wife

bail in false pretext of marriage

right to procreate of convict

Criminology, Penology and Victimology book release

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

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