Constitutional Law

Present article is a dossier of some of the important landmark judgments in the discipline of constitutional law by the Supreme Court in 2022. The article attempts to cover the lesser known, lesser discussed but those judgments that laid down important and pivotal questions of law by the Supreme Court interpreting the constitutional provisions. The article attempts to decipher 25 such judgments after shortlisting from many of the judgments. “Part I” covers 13 judgments delivered between January 2022 to June 2022, while Part II shall be dealing with remaining 12 judgments from July 2022 to December 2022, concluding with the landmark Constitution Bench judgment on validity of EWS reservations.

In Part I, the judgments are arranged chronologically in the order of their date of delivery starting January 2022. A brief summary detailing the issues and the questions that arose for consideration before the Supreme Court along with their resolution by the coram presiding over the matter is provided in a precise and succinct manner. These are those judgments which have added to the ever evolving expanse of constitutional jurisprudence in our country. Though they may be primarily on specialised subjects/discipline like service law, education, criminal law, but have been constructed and passed on the edifice of constitutional tenets.

(1) Union of India v. Alapan Bandyopadhyay1

Coram: 2-Judge Bench of Justices A.M. Khanwilkar and C.T. Ravi Kumar

Authored by: HM Justice C.T. Ravi Kumar

Issue arising before the court was short and precise one; maintainability of writ petition assailing order passed in original application under Section 25 of the Administrative Tribunals Act, 1985 (hereinafter referred as “Act of 1985”) before the jurisdictional High Court, where the government employee concerned was serving. The writ was filed before the Calcutta High Court challenging the order of transfer passed by the Chairman, CAT, New Delhi in exercise of powers under Section 25 of the Act of 1985. The appellant challenged the order through which the proceedings pending at the Calcutta Bench of CAT were transferred to the Principal Bench at Delhi on multiple grounds of mala fides and bias. The High Court not only entertained the writ petition but also passed adverse remarks against the CAT exercising the power of transfer of proceedings from Kolkata to New Delhi. Scanning the provisions of the Act of 1985 along with the Rules framed thereunder, the Supreme Court referred to and distinguished the applicability of a longline of judgments relatable to Article 226(2) of the Constitution of India. The court referred and distinguished the judgments of determination of the seat and jurisdiction of territorial High Court to entertain a writ petition, especially the ones of Kusum Ingots & Alloys Ltd. v. Union of India,2 Nawal Kishore Sharma v. Union of India3 and Navinchandra N. Majithia v. State of Maharashtra4 . It held that Section 25 of the Act confers an independent power for transfer of original application from one seat to another or from one seat to the principal seat. The section does not contemplate issuance of notice or opportunity of hearing to the party concerned. Referring to the Constitution Bench judgment of L. Chandra Kumar v. Union of India,5 it was held that orders and judgments of CAT are amenable to writ jurisdiction presided by the Division Bench of the High Court concerned exercising territorial jurisdiction over the matter. Thus, a decision relatable to Section 25 of the Act pertaining to transfer of proceedings from one seat to another seat would be subject to consideration before the jurisdictional High Court within the same State only. In view thereof, since the writ petition was filed challenging the order of transfer passed under the Section 25 of the Act of 1985, therefore the jurisdictional High Court was Delhi High Court only and not the Calcutta High Court since the transfer order was passed by the Principal Seat of Tribunal situated at Delhi. The judgment of the Calcutta High Court was set aside and adverse remarks also expunged as completely unwarranted. The petitioner was permitted to approach the jurisdictional High Court concerned with the grievance.

(2) Punjab State Coop. Agricultural Development Bank Ltd. v. Registrar, Coop. Societies6

Coram: 2-Judge Bench of H.M. Justices Ajay Rastogi and Abhay S. Oka;

Authored by: HM Justice Ajay Rastogi

The issue that arose in the matter was the applicability of an amended provisions of the Rule 15(ii) of the Punjab State Cooperative Agricultural Land Mortgage Banks Service (Common Cadre) Rules, 1978, through which the pensionary benefits were being modified to a lesser degree and were made applicable to employees who retired prior to February 2014. The Division Bench of Punjab and Haryana High Court held that the amended provision cannot be applied to the existing retired employees of the pensioners of the appellant Bank, against which the appeals were filed. The Supreme Court confronted with a square issue as to whether the provisions and pay scale pertaining to pensions can be altered post-retirement of an employee, being vested an accrued right with retrospective effect. The Court referred to the Constitution Bench judgment of Railway Board v. C.R. Rangadhamaiah7 explained the applicability of a rule which operates in futuro vis-à-vis a rules that governs rights of those already in service, their promotion, pay scale, salary, pension, etc. the court relying upon longline of precedents following the judgment of Railway Board8 held that the enquiry that has to be made is whether the benefit stands accrued to a particular employee, which is being disturbed in any manner. If the answer of the question is in yes, especially in matters of pensions, then clearly the acts of prohibition on its applicability under Article 14 read with Article 21 of the Constitution of India fall disallowing the denial of any such benefit to the employee concerned. The Court further held that plea of non-availability or paucity of financial resources can never be quoted as a defence by the bank or employer for taking away vested rights of pension having accrued to the employees, the same being their socioeconomic security. Pension is not about bounty and it is for the employer/appellants to divert the resources from wherever the funds have to be and can be made available in protecting their vested rights. Eventually affirming and upholding the judgment of Punjab and Haryana High Court, the Court held the amendment to be not applicable to the employees that had already retired prior to the cut-off date and were receiving pension under the scheme prevailing prior to the amendment of Rule 15(ii).

(3) Neil Aurelio Nunes (OBC Reservation) v. Union of India9

Coram: 2-Judge Bench of HM Justices Dr D.Y. Chandrachud and A.S. Bopanna;

Authored by: HM Justice Dr. D.Y. Chandrachud

The challenge in the batch of Article 32 writ petitions was reservation introduced for OBC and EWS in the All India Quota seats (hereinafter referred as “AIQ seats”) for both UG as well as PG medical courses. In this regard, the notice issued by the Union of India dated 29-7-2021 providing 27% OBC reservation and 10% EWS reservation was put to challenge. Multiple issues arose before the court, broadly with the three principal ones as follows:

  1. Legality of EWS and OBC reservation per se in the AIQ seats, which were argued to be free from reservation and based only on merit, especially the PG courses.
  2. The reservation was introduced midway after commencement of the admission process for 2021-2022 and thus, introduction of reservation amounted to changing the rules of the game post its commencement.
  3. In AIQ seats of PG courses, there could not be reservation for SC, ST and OBC to such a large extent, which was against the mandate of a longline of judgments in Pradeep Jain v. Union of India,10 Jagadish Saran v. Union of India11.

The Supreme Court had an occasion to examine the binary concepts “merit” and “reservation”; their correlation with each other. Relying upon the history of corelation between Articles 15(1), 16(1) with their corresponding Articles 15(4) and 16(4) respectively, the Court held that Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1) respectively, but are another facet of equality mentioned under Articles 15(1) and 16(1) therein. It would be a negation of constitutional precept and vision to read them as exceptions to the general principles of merit. The Court referred to the Constituent Assembly Debates (hereinafter referred as “CAD”) that went behind the drafting of Articles 15 and 16 as also the development of law of substantive equality over law relating to principles and concept of substantive equality over formal equality. Referring to a longline of judgments that started from the majority view of SC in State of Kerala v. N.M. Thomas,12 the Court held that Articles 15 and 16 are an extension of and give effect to the larger doctrine of equality of treating unequals differently. Thus, “merit” and “reservation” cannot be treated as opposed to each other, but are relatable in the larger canvas of Articles 15 and 16 of the Constitution of India. The court then examined the role and nature of common competitive-cum- entrance examinations as a basis and index of merit. It held that assessment must be in the larger social background, disadvantages and handicaps faced by the candidate concerned, for which reservation has been introduced. Scores in any examination are not the sole determinant of excellence or capability, but merit must be examined in the backdrop of equalisation of opportunities for candidates coming from different social backgrounds. The court traced the development and concept of AIQ seats starting from the judgments of Pradeep Jain13,Dinesh Kumar (1) v. Motilal Nehru Medical College14 and Dinesh Kumar (2) v. Motilal Nehru Medical College,15 and the series of judgments that followed, mentioning that AIQ seats were introduced for providing opportunities to students to compete on a national level and take admission nationally in any State or college of their choice.

The court then examined whether the judgments of Pradeep Jain16 and the following judgments placed any restriction on reserving the seats for OBC and EWS category candidates and held that all these judgments were rendered in the backdrop of reservation for domicile/local resident candidates cannot be treated as precedents for restricting the implementation of reservation on the AIQ seats.

On the aspect of changing of rules of the game midway, with the introduction of reservation, after holding of entrance examination, the Court held that as per Clause 11 of the brochure, the process of admission was formally to commence after notification of seat matrix by the counseling authority (GoI) and not before. Since, before the announcement of results itself, the notice under challenge dated 29-7-2022 was issued, therefore it could not be said that rules of the games were changed. In this regard, the law occupying the field right from the judgment of K. Manjusree v. State of A.P.17 was traced, to hold when it can be considered that rules of the game have been changed to the prejudice of participants and when they cannot be so inferred.

Accordingly, the challenge to the implementation of notice and the reservation in the AIQ seats of 2021-2022 was repelled by the court in view of the aforesaid findings.

(4) Jarnail Singh v. Lachhmi Narain Gupta18

Coram: 3-Judge Bench of HM Justices L. Nageswara Rao, Sanjiv Khanna and B.R. Gavai

Authored by: HM Justice L. Nageswara Rao

The issue before the court was about applicability of reservation in the matters of promotion”, introduced vide 77th Constitutional Amendment Act, 1995 w.e.f. 17-6-1995. The issues under Articles 16(4-A) and 16(4-B) were discussed.

The court traced the background of evolution of the concept of reservation in promotion, especially in the Constitutional Bench judgment of M. Nagaraj v. Union of India19. The broad issues that the Supreme Court dealt with are as follows:

(a) The yardstick by which one would arrive at quantifiable data proving inadequacy of representation of SCs and STs warranting reservation in promotion, and the unit on which such quantifiable data is to be collected.

(b) Whether the proportion of SCs and STs in the overall population to be reckoned for the purposes of applicability of Articles 16(4-A) and 16(4-B) reservations and whether there should be a fixed time period for reviewing of such inadequacy of representation.

(c) Aspects relating to prospective applicability of judgment of M. Nagaraj v. Union of India20 and the power of the court to hold so.

On the first issue of yardstick for arriving at quantifiable data, it was held that it is neither legal nor proper for the courts to issue directions or advisory sermons to the executive in respect of the spheres which are exclusive domains of the executive under the Constitution. However, the Court held that the data whatever is taken into consideration must be objective, broad based and must be reflective of considerations of appropriate yardsticks for determining the adequacy or inadequacy of representation.

On the issue of determination of unit for collecting quantifiable data, the court relying on various precedents, explained and discussed the meaning of word/term “cadre and cadre-strength”, including its judicial evolution in the Indian context. Referring to longline of judgments of M. Nagaraj,21 R.K. Sabharwal v. State of Punjab22, etc., it was held that cadre should be cadre-strength (i.e. the total number of posts available in the grade to which promotion was sought) should be the unit for the purposes of providing reservation to promotion. The court also explained the concept of promotion for the applicability of constitutional reservation and the four point test for examining whether the post is a “promotional post” or not.

On the remaining issues, it was broadly held that proportionate representation or adequate representation cannot be referable as representation in the overall population, but adequate representation must be the representation in the services in the particular cadre. On the aspect of periodic review of necessity and extent of reservation, it was held that though no fixed time-limit can be laid down, but 10 years must be a reasonable period when there should be a periodic review. On the issue of prospective operation of judgment of M. Nagaraj23 a longline of judgments of US Supreme Court were discussed, as also those in the Indian context, to hold that in appropriate cases to not disturb the concluded state of affair, and for avoiding effects of unsettling of seniority of individuals, the judgment of M. Nagaraj24 was declared to be having and possessing prospective effect. The SLPs so preferred and pending were disposed off in view of the above findings arising from various States.

(5) X v. High Court of M.P.25

Coram: 2-Judge Bench of HM Justice L. Nageswara Rao and Justice B.R. Gavai

Authored by: HM Justice B.R. Gavai

The petitioner had filed a Article 32 writ petition before the Supreme Court, requesting reinstatement back in her service on the post of judicial officer, in view of the acceptance of her involuntary resignation tendered in peculiar circumstances of being allegedly sexually harassed by the sitting Judge of the Madhya Pradesh High Court. The substance of the petition was that in a disturbed, impulsive and unbalanced state of mind she sent her resignation to the High Court establishment, which resignation was immediately acted upon being so accepted in the form of a formal order discharging her from her services. Subsequently, she gave a representation to all the authorities for her reinstatement, which was not attended to, in view of which, the writ petition was preferred. Broadly, the Supreme Court held as follows:

  1. The transfer of the petitioner when she had lodged a complaint through the District and Sessions Judge alleging sexual harassment by the sitting Judge of the M.P. High Court was irregular and was unbearable for her to continue. The Judges Inquiry Committee instituted under the provisions of the Judges Inquiry Act, 1968 had found that the transfer was perhaps a precipitated reaction to the complaint being lodged by the petitioner against the sitting Judge. Expounding and applying the concept of “legal malice”, the Supreme Court referring to the judgment of Shrilekha Vidyarthi v. State of U.P.,26 held that violation of Article 14 is occasioned when a State action is not supported by a plausible reason or discernible principle as per the set practices, conventions and policies of the department.
  2. Transfer order of the petitioner was clearly in contravention of the transfer policy of the High Court establishment with the transfer not fitting in within the four corners of the contingencies of mode and manner of transfer laid down under the transfer policy. Thus, the transfer was vitiated by “malice in law”. The representation of the petitioner opposing her transfer was also not considered in proper perspective favourably and thus, the resignation” by the petitioner could not be treated as a “voluntary resignation” given with free will and choice.
  3. The court explained and elaborated on the concept of “resignation” by referring to law lexicon and the precedents of the Supreme Court to hold what constitutes a voluntary, wilful resignation. Accordingly, it was held that the resignation was one which was coerced one; the petitioner being compelled in the extraordinary and peculiar circumstances in her life.

Accordingly, the petitioner was reinstated with all consequential benefits of seniority with the writ petition being partly allowed, however, without awarding any backwages.

A celebrated quote of Thomas Fuller so quoted by Lord Denning finds mention in the judgment at the end.

“Be ye never so high, the law is above you.”

(6) Kishor Madhukar Pinglikar v. Automotive Research Assn. of India27

Coram: 2-Judge Bench of HM Justices Sanjiv Khanna and Bela M. Trivedi

Authored by: HM Justice Sanjiv Khanna

The niche question that arose in this matter was whether the respondent Automotive Research Association of India is a State within the meaning of Article 12 of the Constitution of India and resultantly covered under Part III rights. The court culled out the governing parameters and tests for determining whether a body falls within the purview of Article 12 on the basis of a longline of precedents including Constitution Bench judgment of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology.28 It was found that the Government never had any say in the Constitution, establishment or operation of the automotive association, nor did the Government ever make any capital contribution towards its setting up. The majority of members of the association are also having no relation with the Government and are mostly private players. It was discussed how the Council that manages and oversees the affairs of the respondent Association has no Government interference or involvement except the nomination of just 3 members to its 30 member body. The employees are also governed by the memorandum of articles of association without any guidelines or statutory prescriptions being made by the Government in this regard. The meeting and decision-making process of the association also do not involve any say of the Government. Thus, the Court held that association was not functionally, operationally and administratively dominated by government control, rather enjoyed significant and substantive freedom or autonomy. In view thereof the court declined to interfere with the view taken by the Bombay High Court that the Automotive Research Association of India was neither an agency nor instrumentality of the Government, thus being not covered by Article 12 of the Constitution of India.

(7) Hotel Priya v. State of Maharashtra29

Coram: 2-Judge Bench of HM Justices K.M. Joseph and S. Ravindra Bhat;

Authored by: HM Justice S. Ravindra Bhat

The batch of special leave petitions were preferred by owners of operational restaurants and bars possessing requisite licences/permissions (hereinafter referred as “orchestra bars”) in the State of Maharashtra. The challenge was laid to certain conditions mentioned in the premises licence issued to them, the cardinal one capping the upper limit of number of female and male artists for performances on the stage (8 maximum with 4 males and 4 women). The question arose about identification of a particular number of artists, specially the restriction on their number based upon their gender. The conditions were assailed being contrary and repugnant to the provisions of Maharashtra Police Act, 1951 (hereafter referred as “Act of 1951”), via Licensing and Controlling Places of Public Amusement (Other than Cinemas) and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 (hereafter referred as “Rules of 1960”), as also violative of Article 15 read with Article 19(1)(g) of the Constitution of India. It was argued that the Commissioner who is the competent authority under the Act of 1951 and the Rules of 1960 has clearly traversed its authority and has imposed unreasonable and unconstitutional conditions on the orchestra bars. It was argued fundamentally that putting a cap on the number of artists based on their sex/gender fails to meet the test of reasonable classification, is arbitrary and is unable to develop a nexus with the object of the parent Act and the Rules. Scanning and scrutinising various provisions of the Act of 1951, specially Sections 2 and 33, titled as “power to make rules or regulations of traffic and for presentation of order in public place, etc”.

The Court held that the power to regulate and restrict is inherent and implicit under Section 33 and conditions may be imposed by the Commissioner as a precondition for the grant of licences required for the functioning of such premises/orchestra bars. The court elaborated on the entire history of previous litigations that had been ongoing in the last one decade between the hotel and orchestra bar owners and the State of Maharashtra from time to time in the series of judgments viz the judgments of State of Maharashtra v. Indian Hotel and Restaurant Assn. (1),30 Indian Hotel and Restaurant Assn. v. State of Maharashtra (2)31 and Indian Hotel and Restaurant Assn. (3) case32 wherein from time to time various amendments, statutory provisions and conditions were challenged. After discussing threadbare all the series of judgments of IHRA case33 the Court held that conditions of licence must be reasonable and relatable to the purposes and object of the Act of 1951 and cannot be fanciful or created in thin air. Tracing the previous declaration of some of the previous conditions as unconstitutional, the court cited examples of payment of tips to the female bar dancers as justified, if done in a proper manner. The Court accordingly held that the conditions and restrictions can always be tested on the anvil of constitutional principles and that morality cannot be the ground or reason to test their validity. The court examining the validity of cap of 4 females and 4 males held it to be the outcome of “stereotypical view” that women who perform in bars and establishments are of lesser virtue belonging to a certain class of society, with a lower societal status. Referring to the judgments, rendered in the past, specially Anuj Garg v. Hotel Assn. of India,34 Joseph Shine v. Union of India,35 and C.B. Muthamma v. Union of India,36 Court held that in the garb of protecting women, measures cannot be introduced that may do more injuries and harm to them, especially restricting the exercise of their freedom.

Eventually, the real concern for the safety of women, enjoins the duty upon the State to create situations conducive to their working and exercise of their freedom; to run an extra mile to facilitate their employment, rather than to thwart it and stifle their choice. Restrictions in the garb of protection at times become destructive of Article 15(3) as they masquerade as special provisions and operate to limit altogether women’s choice of their evocation. Accordingly, holding the restrictions to be transgressive, beyond the bounds of Articles 15(1) and 19(1)(g), the conditions were held to be discriminatory and unconstitutional. The condition imposing a gender cap as to the number of women or men who can perform in orchestras and bands was declared to be void.

Para 53 of the judgment is worth being quoted, which runs as follows:

53. As, whether, if and the extent to which the impugned practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism. Such attitudes have no place in our society; recent developments have highlighted areas hitherto considered exclusive male “bastions” such as employment in the armed forces, are no longer so. Similarly, in the present case, this Court holds that the gender cap imposed by the impugned condition is void. One hopes that the present judgment would still be a lingering and discordant note of a cymbal silenced long back, by previous judgments of this Court.

(8) High Court of Delhi v. Devina Sharma37

Coram: 3-Judge Bench of HM Justices D.Y. Chandrachud, A.S. Bopanna and Hima Kohli

Authored by: HM Justice D.Y. Chandrachud

Twin issues arose before the Supreme Court in regard to challenge to eligibility requirements for appointments and selections to Delhi Higher Judicial Services (hereinafter referred as “DHJS”). The first was the power of the High Court to prescribe a minimum age of 35 years for appearing in the DHJS examination being contrary and repugnant to Articles 233 and 235 of the Constitution of India. Second, the cut-off date was fixed for the determination of the age in view of examination not being convened in the preceding two years of 2019-2020 and 2020-2021 by the High Court. The Delhi High Court had issued notifications for conducting the examinations for DJS and DHJS on 23-2-2022, fixing the last date initially on 20-3-2022 and 12-3-2022 and scheduling the examinations on 27-3-2022 and 20-3-2022 for DJS & DHJS respectively. The challenge was to Rule 14-C of Delhi Judicial Services Rules, 1970, which stipulated the cut-off date as 1st January and maximum age to be 32 years. The rule had been amended from time to time, however by the time it came to be assailed, it prescribed a maximum age to be 32 years as on 1st January of the year in which the applications for appointment were invited. It was contended that since for two continuous years i.e. 2019-2020 and 2020-2021, the examinations were not held, the candidates cannot be debarred by being subjected to eligibility bar under Rule 14-C. On this issue the High Court held that since for institutional reasons and the covid pandemic, the examination could not be held for two full years, when otherwise the candidates would have been eligible to appear in the examinations, as a peculiar case and one on time measure, it directed that all such candidates who were eligible in the year 2020 and 2021 shall be permitted to appear for the examinations. This finding pertains to DJS examinations.

On the other issue of minimum age requirement of 35 years as the eligibility, the court relied upon the recommendations of the Shetty Commission Report, followed by the 3-Judge Bench judgment of All India Judges Assn. v. Union of India38 which had approved the fixation of minimum age of candidates for Higher Judicial Services as 35 years, and maximum to be 45 years. The Court held that the prescription of minimum or maximum age requirements for entry into service are essentially a matter of policy and determination of cut-offs must always be left to the employer. Such eligibility criteria is not ultra vires or repugnant to Article 233Constitution of India of the Constitution of India for the reason that the Constitution does not preclude the exercise of the rule-making power of the High Court regulating the conditions of service or appointment. Affirming the power of the High Courts to fix the minimum age to regulate the entry to such high offices in judicial services, the Court held as follows vide para 2639:

26. The silences of the Constitution have to be and are supplemented by those entrusted with the duty to apply its provisions. The Constitution being silent in regard to the prescription of a minimum age, the High Courts in the exercise of their rule making authority are entitled to prescribe such a requirement. Direct recruitment to the Higher Judicial Service is intended to be from Members of the Bar who have sufficient experience. The post of a District Judge is at a senior level in the cadre. Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this. Except for a short period when the requirement of a minimum age of thirty-five was deleted, the Delhi High Court has followed the norm.

Accordingly the validity of the eligibility criteria of minimum 35 years of age was affirmed by the 3-Judge Bench of the Supreme Court.

(9) Indian Ex-Servicemen Movement v. Union Of India40

One Rank One Pension Policy (OROP) Judgment

Coram: 3-Judge Bench of HM Justices D.Y. Chandrachud, Surya Kant and Vikram Nath

Authored by: HM Justice D.Y. Chandrachud

The challenge in this judgment was laid to the OROP policy decision dated 7-11-2015 of the Ministry of Defence, GoI pertaining to fixation of pension for ex-servicemen of defence forces. The letter dated 7-11-2015 purported to be the pension policy fixing the cut-off date to be 1-7-2014, which was assailed as being arbitrary and violative of Articles 14 and 21 of the Constitution of India. It was contended that ex-servicemen who had retired from the same length of service were receiving different pensions by virtue of the impugned policy order. By virtue of this policy, the periodic review of the pension was fixed, the benefit of which could not be passed on to the ex-servicemen who had retired from the very same post prior to 2014. Reliance was placed on the Koshiyari Report tendered by the Standing Committee of the Parliament on 10-12-2011, wherein the principle of OROP was emphasised and it was held that Ex-Servicemen retiring from the same post must receive the same benefit of fixation of the same rate of pension. Further reliance was placed on the report furnished by the One Man Committee headed by Justice L. Narasimha Reddy tendered to the Union Government on 26-12-2016. The court examined the concept and genesis of OROP, which was adopted vide a policy 7-11-2015. Relying on its Constitution Bench Judgment of Kalpana Mehta v. Union of India,41 the Court held that Parliamentary Committee Reports can be referred to, relied upon by the courts solely for the purpose of collecting inferences of facts shedding light on purpose of any law, any policy; the social problem which the legislature envisaged whilst enacting any law or taking any policy decisions. Thus, relying upon the judgment of Kalpana Menta42, Court held that Parliamentary Committee Reports like the Koshiyari Committee Report can be relied for throwing light on the background of the adoption of OROP, its historical background, reason for the demand and rationale behind adoption of OROP for personnel belonging to the Armed Forces. It held that governmental policy formulated under Article 73 by the Union or Article 162 by the State can be authoritatively gauged from the policy documents of the Government including reports tendered to the legislature.

The Court further held that the hierarchy of law exists between statutes and rules; statutory provision shall always precede delegated legislation if there is a conflict between both. However, when the entire canvas is governed only by a policy and is being implemented through a policy, then it is always open to the policymakers to determine its terms of implementation, albeit subject to judicial review on constitutional parameters. The court drew a difference between the two well laid concepts of “promissory estoppels” and “legitimate expectations”. Explaining the difference between the two concepts, relying on the series of judgments rendered in State of Jharkhand v. Brahmputra Metallics Ltd43 and State of Arunachal Pradesh v. Nezone Law House44 the Court held that announcements made by or assurances given by one minister of one department cannot constitute promissory estoppels and legitimate expectations, when views of multiple departments/ministries are to be taken and concurrence to be obtained. In such circumstances the administrative law doctrines of promissory estoppels and legitimate expectation would have no role to play. Addressing the plea and argument of discrimination as a ground for challenge to the policy dated 7-11-2015, Court held that the length of service and pension fixation is governed by multiple factors, one of them being assured career progression scheme (hereinafter “ACP”) and modified assured career progression scheme (hereinafter “MACP”). A person may be receiving a higher pension on the date of his retirement by virtue of the MACP/ACP schemes introduced by the Government with effect from the year 2014. Thus, two officers who have rendered the same length of service may have retired from two different posts and would be receiving different scale of pensions because one got promoted by virtue of the MACP scheme whilst the other did not. Therefore, the discrimination could not be alleged in such circumstances.

The Court further held that financial implications have an important role to play in the fixation of pension and if the financial implications are so high and exorbitant that the fund corpus would be affected, then it becomes a relevant consideration for interpreting any policy. It was further held that the clause pertaining to periodic revision of pension every five years and not passing the same automatically to the past pensioners, cannot be treated as violative of Article 14, as it is a pure question of policy.

The court relied and clarified the law laid down in D.S. Nakara v. Union of India45 to state that the pension involves two different concepts. One is the calculation of the rate of pension and the other is the actual amount of pension receivable by the government servant. Relying upon the various judgments of Indian Ex-Services League v. Union of India46, K.L. Rathee v. Union of India47 and D.S. Nakara48, the Court held that discrimination may arise if calculation of the rate of pension is adopted differently for different employees/ex-servicemen retiring from the same post at different passages of time, but the discrimination may not necessarily arise if the actual amount received under pension is different. Accordingly, if two different amounts of pension are payable to employees, but the computation or the method of calculation adopted is the same, then discrimination shall not result. In the ultimate analysis the Court further held that Judges or Courts cannot sit in apparel adjudicating in policies which results in polycentric problems, and raises questions transgressing over the domain of elected representatives and policymakers. The questions of policy involve not only complex considerations of technical and economic factors, but also require balancing competing interests for which courts are not the appropriate remedy. Eventually the court affirmed the policy communication dated 7-11-2015 of the GoI impacting the benefit of OROP from 1-7-2014. The petitions were accordingly disposed off.

(10) Pattali Makkal Katchi v. A. Mayilerumperumal49

Coram: 2-Judge Bench of HM Justices L. Nageshwara Rao and B.R. Gavai;

Authored by: HM Justice L. Nageshwara Rao

The challenge in this batch of petitions was to the validity of various provisions of Tamil Nadu Reservation for the Most Backward Classes and Denotified Communities Act, 2021, which was struck down by the Madras High Court. Essentially through the said enactment, the reservation which was already provided to set of most backward classes (hereinafter referred as “MBCs”) and the denotified communities (hereinafter referred as “DNCs”) was further qualified and one community, titled as Vanniyakula Kshatriya community was picked up and out of the total reservation provided to MBCs 20% for MBCs and DNCs, 10.5% reservation was specifically earmarked for the Vanniyakula Kshatriya community. The court was confronted with various constitutional issues relating to the validity of the Act of 2021, principal one being as follows:

  1. Whether the Act placed under the Ninth Schedule to the Constitution of India (the 2021 Act) be amended varied without subsequently by the State Government without prior Presidential Assent?
  2. Whether the State Government possesses the power to take any decision relatable to the notified backward classes in the teeth of Article 338-B of the Constitution of India, which mandates consultation with National Commission for Backward Classes (hereinafter referred as “NCBC”)?
  3. Whether reservation can be provided for any specific community without any quantifiable data, merely on the basis of their high population?
  4. Whether the impugned Act, 2021 providing specified reservation of 10.5% to the said Vanniyakula Kshatriya community, without any quantifiable data, flouts Articles 14, 15 and 16 of the Constitution of India and thus liable to be struck down?

On the first issue, permissibility of sub-classification amongst backward classes, the court distinguished the Constitution Bench judgment of E.V. Chinnaiah v. State of A.P,50, vis-à-vis Article 341 of the Constitution of India. The Court held that sub-classification of backward and MBC’s is always permissible provided separate quotas are provided for each of them, referring to the judgment of Indra Sawhney v. Union of India51

On the issue of constitutional bar on competence of the State under Article 31-B of the Constitution of India, the Court held that even though the Act of 2021 was ancillary or incidental to another statute Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services Under the State) Act, 1993 (hereinafter referred as the “Act of 1994”), which is placed in the Ninth Schedule, protected by Article 31-B, the State would not be denuded of its powers to come out with a fresh legislation, till and until it is not repugnant or contrary to the Act of 1994. The Act of 2021 in fact simply determined the extent of reservation for communities which had already been identified and categorised by the 1994 Act and fixed their inter se quota, already identified as MBCs and DNCs. Thus, it was not in any manner violative, repugnant or contrary to the Act of 1994 protected under Article 31-B. For the said reason, even Presidential Assent under Article 31-C could also not be required, since the legislation was otherwise relatable to List II of Seventh Schedule of the Constitution of India within the legislative competence of the State.

On the issue of caste-based classification, the court relying upon the judgment of Indra Sawhney52 held that the caste-based classification is permissible and there is no constitutional or legal bar whilst categorising backward classes as backward and more backward.

On the issue of existence of quantifiable data and material with the State for enactment of the Act of 2021, the Court held that clearly such a data was not existing proving inadequate representation of the Vanniyakula Kshatriya community. It further held that merely because the population of the particular community is high in the State, it would not imply that they deserve “adequate representation” as “adequate representation” cannot be held to be synonymous with “proportionate representation”, both being entirely different. Referring to the existence and consideration of the material present before the report, the Court held that except random opinion and letters of the Judges manning the committee, there was no field study showing the inadequate representation or necessity for internal reservation for the Vanniyakula Kshatriya community. Whatever was relied upon eventually is the antiquated data of 1985, which cannot be relied upon. The Court held that the essence of classification is sound discrimination supported by reason and logic. Equality stands violated if it stands on an unreasonable basis and the classification must have rational relation to the objects sought to be achieved. Accordingly, in the absence of sufficient existing data, it was held that the classification is violative of Articles 14, 15 and 16 for want of quantifiable data.

Eventually on a limited ground of availability of quantifiable data, the court struck down the legislation as unconstitutional, whilst on all other issues set aside the findings of the Madras High Court affirming the constitutionality of the Act, 2021.

(11) Jacob Puliyel v. Union of India53

Coram: 2-Judge Bench of HM Justices L. Nageswara Rao and B.R. Gavai

Authored by: HM Justice L. Nageswara Rao

The PIL was filed seeking reliefs of disclosure and open declaration of entire trial data undertaken with respect to vaccines administered in India and appropriate evaluation of adverse events following immunisation (hereinafter referred as “AEFI’s”). Challenge was also made to the constitutionality and validity of vaccine mandates issued by the Union and the various State Governments as a precondition for availing benefits or services provided by the State or it is agencies. The principal contention of the petitioner veered around mandating compulsory vaccination for access to resources, public places and means of earning livelihood as an encroachment upon the fundamental rights. The court examined the preliminary objection relating to the scope of judicial review in the matters of public health and vaccination policies, being opinions of domain experts. Referring to the judgments rendered by international courts during the COVID-19 Pandemic enquiring into the breach of constitutional rights and protection, the 2-Judge Bench held that the Constitution cannot be put away on the back burner and be forgotten in the pandemic. The court is always empowered to examine whether the executive has acted within “a zone of reasonableness”. The court referring to both the line of reasonable and domestic judgments held that the test for examining and testing public policies relating to health are essentially four-fold54:

23. …

(a) if it is unconstitutional;

(b) if it is dehors the provisions of the Act and the regulations;

(c) if the delegatee has acted beyond its power of delegation;

(d) if the executive policy is contrary to the statutory or a larger policy.

The Court further held that, respect to policy decisions under judicial review is out of the “concept of comity of constitutional jurisdictions”; which cannot be stretched beyond the contours of reasonableness, non-arbitrariness and proportionality. Thus, the Court held that even executive policies relatable to health and public safety matters can be subjected to judicial review on the anvil of the aforementioned tests.

On the issue of compulsory vaccine mandates, as a precondition for access to essential and basic public services, the court first referred to the ongoing judicial discourse on Privacy and Private Autonomy v. Public Health. Referring to longlines of judgments of National Legal Services Authority v. Union of India,55 Aruna Ramachandra Shanbaug v. Union of India,56 Court held that it is a fundamental right of an individual to refuse an unwanted medical treatment, without being forced to take any undesirable medical treatment. Referring thereafter to the judgments rendered by the Courts at New Zealand and Canada, the Supreme Court affirmed the adoption of “precautionary approach”, held that the State is empowered to take decisions that are necessary to minimise the risk of the outbreak or the spread of any pandemic virus. As long as there is a potential risk of spreading of the virus with the disease, restrictions can be placed on individual rights on larger public interest, however, the court is empowered to examine whether such exceptional circumstances exist or not. And the 3-fold test requirements laid down in the Constitution Bench judgment of K.S. Puttaswamy v. Union of India.57

The compulsory vaccine mandates were challenged on the ground that the natural immunity required from Covid-19 infection is more robust as compared to vaccine immunity and vaccines have proven ineffective in checking transmission of Covid-19 from one person to another and are especially ineffective in checking infection from new variants. The Court examining the aforesaid contentions referred to Article 47 of the Constitution of India as an obligation of the Union of India to improve the public health. After accepting the contention of the petitioner that the vaccines do not reduce the risk of transmission and that a risk of transmission qua the vaccinated and unvaccinated person to those around them, in such circumstances vaccination mandates become disproportionate and regressive. The unvaccinated as well as the vaccinated individuals stand on the same footing and vaccination has proven to be inactive against the new variants of Covid-19 SARS Virus. Accordingly, the restrictions pertaining to the mandatory Covid-19 vaccinations were considered to be disproportionate and having failed to have passed the constitution scrutiny.

On the other relief of public disclosure of segregated clinical trial data in public domain, the Court referring to the provisions of Drugs and Cosmetics Act, 1940 (hereinafter referred as “1940 Act”) and the New Drugs and Clinical Trials Rules, 2019 (hereinafter referred as “2019 Rules”), referred to the statutory dispensation provided thereunder. The Central Government has been empowered to carry out “accelerated clinical trials” and approval process. Referring to various statistics of the various stages of clinical trials which the various vaccines were subjected to prior being launched for public immunisation, the Court held that the tests have met the guidelines for good clinical practices and cannot be said to have been launched dehors the same. The Court further held that in light of the existing statutory regime, it is not necessary to disclose the entire primary clinical trial data, but if the results and key findings of such clinical data trials have been published, released and disclosed for the information of general public, then the statutory requirements stand satisfied as also international practices and guidelines.

On the issue of relief concerning improper collection and reporting of AEFIs by the Central Government, the Court held that national expert bodies and groups on vaccine administration for Covid-19 have been involved into overall scrutiny, vaccine safety and surveillance specially for the Covid-19 vaccines. A body of domain experts at the national level has arrived at conclusions that AEFI’s are minimal and are under constant surveillance of the Central Government. Requisite data with correct information is available with the Central Government so produced before the court to infer that AEFI’s are being properly monitored. In conclusion, thus the court declared the compulsory covid mandates are unconstitutional, whilst on all the other issues, ruled in favour of the Union.

A landmark judgment indeed on the scope of judicial review in such specialised areas of public health and safety and the scope of scrutiny by constitutional courts.

(12) Bhola Kumhar v. State of Chhattisgarh58

Coram: 2-Judge Bench of HM Justices Ajay Rastogi and C.T. Ravikumar;

Authored by: HM Justice C.T. Ravikumar

The issue that arose before the court was a very limited one viz. whether a convict is entitled to compensation for being kept incarcerated beyond the period of sentence imposed by the competent court and resultantly subjected to deprival of personal liberty. In this case, the appellant was convicted to undergo a sentence of 12 years by the District and Sessions Court for offences punishable under Section 376 of the Penal Code, 1860 (hereinafter referred as “IPC”) and Sections 3(2)(v) and 3(1)(xii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. He was subjected to rigorous imprisonment of a period of 12 years with a fine of Rs 10,000. On appeal, the Chhattisgarh High Court confirmed the conviction, but reduced the sentence to 7 years imprisonment from 12 years. The victim was directed to be compensated in terms of Section 357 of the Criminal Procedure Code, 1973 (hereinafter referred as “CrPC”), by being paid an amount of Rs 15,000 within six months, failing which, in default, to undergo imprisonment for one more year. The appellant was subjected to an excessive custody of 3 years, 3 months and 16 days. The State failed to include the remission period granted to the appellant, whilst taking a plea that remission should not be included in the overall period of imprisonment. Conjointly reading and interpreting the provisions of Madhya Pradesh Reorganisation Act, 2000, with Madhya Pradesh Jail Manual, 1968 (as adopted in the State of Chhattisgarh), the Court held that the period of remission is to be included in the overall period of sentence. On the complete analysis of facts, the court found that due to the disdainful attitude of the State, the appellant had to suffer the excess imprisonment. Holding that it resulted in deprivation of fundamental rights under Article 19(1)(d) read with Article 21 of the Constitution of India, the Court held that under Article 136 read with Section 386 CrPC, it had power to award compensation. Relying upon the judgments of Ambica Quarry Works v. State of Gujarat59 and A.R. Antulay v. R.S. Nayak,60 it was held that when manifest illegality or palpable injustice has been shown to have resulted as a guardian of the Constitution, the court can grant appropriate relief. The State was held vicariously liable for the acts/omissions committed by its officers and was directed to grant a compensation of Rs 7.5 lakhs to the appellant convict. This judgment is a landmark judgment on awarding of exemplary compensation for wrongful and illegal imprisonment beyond the period of sentence awarded to any convict.

(13) Satender Kumar Antil v. CBI61

Coram: 2-Judge Bench of Justice S.K. Kaul and Justice M.M. Sundresh

Authored by: Justice M.M. Sundresh

The judgment is one of the landmark judgments on consti-criminal jurisprudence relating to enlargement of accused on bail in various categories of offences. The court categorised the offences under various enactments under the 4 broad categories depending on the rigours and stage of consideration of bail application and discussed threadbare about what should be the broad approach of courts in granting bail in all such cases. Various stages of investigation and trial from the stage of registration of FIR, till the suspension of sentence in criminal appeals against conviction were discussed while laying down broad parameters and considerations for grant of bail by the Magistrates, Sessions and the appellate courts. The judgment possesses significance in constitutional law for the reason that it correlated the concept of bail with liberty, freedoms and Part III articles, especially Articles 19(1)(a), 19(1)(d) and 21 of the Constitution of India. The court discussed essentially the origin of concept and idea of bail; the principle of bail as a rule and jail as an exception by referring to a longline of precedents specially Gurbaksh Singh Sibbia v. State of Punjab62, Gudikanti Narasimhulu v. High Court of A.P.63, Sanjay Chandra v. CBI,64 etc. in the criminal jurisprudence. The court also broadly laid down guidelines regarding the approach to be followed by the trial as well as High Courts whilst considering bail applications under various provisions of the CrPC. A tabular narration of provision wise semantics of CrPC as detailed by the Supreme Court is as follows:

S.No

Section and Analysis by the Supreme Court

1.

Sections 41, 41-A, 60-A CrPC Powers of Arrest: Referring to the longline of judgments, especially Arnesh Kumar v. State of Bihar65, Rakesh Kumar v. Vijayanta Arya66, Mahesh Kumar Chaudhary v. State of Jharkhand67, Court held that the “power to arrest” is entirely different from the “necessity of arrest” to be felt by the police officer. Issuance of notice under Section 41-A, coupled with the reasons for satisfaction and necessity must be recorded by the police officer before curtailing the liberty of any person. In light of Section 60-A, any arrest made in contravention of abovementioned provision is illegal and the accused is not only entitled to be enlarged on bail, but the police officer must also be subjected to departmental action for misusing the policing powers. This will ensure that courts are not flooded and clogged with bail applications, specially for offences punishable upto seven years. This interpretation is in accord with the constitutional values of our country, where liberty and freedoms are given utmost premium over their restrictions which have to be resorted to in situations of extreme urgency.

2.

Sections 87, 88 CrPC: Issuance of warrants by Courts— The discretion conferred under Sections 87 and 88 with the courts for issuing NBWs must be resorted to exceptionally, in heinous offences, that too where the accused is apprehended for destroying the evidence or tampering with the evidences. Referring to the longline of judgments Pankaj Jain v. Union of India68, Inder Mohan Goswami v. State of Uttaranchal69, the Court held that NBWs should not be issued ordinarily against the accused as they amount to unreasonable coercive measures operating to the prejudice of liberty of any citizen unless and until convicted.

3.

Sectio 170 CrPC: Filing of Chargesheet— Interpreting Section 170, the Court held that it nowhere debars the trial court from taking a charge-sheet on record unless the accused is taken into custody. Referring to the longline of judgments of Siddharth v. State of U.P.70, Court on its own Motion v. CBI71, the Court observed that it is not essential in every case pertaining to cognizable and non-bailable offence that actual custody of the accused should be impressed upon at the time of filing of charge-sheet. This is however subject to the proviso that the accused was never arrested during investigation and he cooperated or responded to all the notices of appearances by the police. Even the accused is not entitled to file any application for the grant of bail through a formal application for the said purpose at the stage of issuance of process viz. Section 190 CrPC.

4.

Sections 204, 209 CrPC: Interpreting both the provisions, Court held that the Magistrate at the time of issuance of process, must exercise the power of remanding the accused to custody only when there is a necessity for doing so of the accused possessing the potential to destroy evidence or disturb the witnesses or interfere with the smooth trial. Even at this stage there is no requirement of a separate formal application for grant of bail, but must be enlarged in due course.

5.

Section 436-A CrPC: Accused must be enlarged on bail when maximum period of incarceration for an undertrial prisoner, as the one half of the maximum period of imprisonment specified for the offence has expired so committed by him. The period has to be reckoned from the date of the custody of the accused during the investigation, inquiry and trial. The court referred to a famous quote of Sir Edmund Burke in his book The World’s Famous Orations referring to impeachment of Warren Hastings about inherent inconsistency between law and arbitrary powers. Thus, it held that the approach of the court should be always towards granting of bail, rather than denying the same unless and until the gravamen of allegations points to active complicity of the accused.

6.

Section 440 CrPC: Provides for the amount of bond and surety as a precondition for grant of bail. It was held that individuals should always be able to comply with conditions whatever are imposed for grant of bail, failing which the conditions become onerous and violative of Section 44o. Referring to the longline of judgments of US Courts as also the precedents of a series of judgments in Hussainara Khatoon (1) v. State of Bihar72, the Court held that conditions must be conducive for the accused to be met for being enlarged on bail.

The court eventually directed the Parliament to consider introducing separate enactment in the nature of “Bail Act” so as to streamline the grant of bails for various categories of offences in one consolidated singular piece of enactment. Detailed guidelines were issued at the end as a summary of the whole judgment.

The remaining 12 judgments from July to December 2022 shall be covered and dealt with under Part II of the Article.


† Expert in constitutional law and practicing advocate at the Supreme Court of India.

†† Final year student at Chanakya National Law University, Patna.

1. (2022) 3 SCC 133.

2. (2004) 6 SCC 254.

3. (2014) 9 SCC 329.

4. (2000) 7 SCC 640.

5. (1997) 3 SCC 261.

6. (2022) 4 SCC 363.

7. (1997) 6 SCC 623.

8. (1997) 6 SCC 623.

9. (2022) 4 SCC 1.

10. (1984) 3 SCC 654.

11. (1980) 2 SCC 768.

12. (1976) 2 SCC 310.

13. (1984) 3 SCC 654.

14. (1985) 3 SCC 22.

15. (1986) 3 SCC 727.

16. (1984) 3 SCC 654.

17. (2008) 3 SCC 512.

18. (2022) 10 SCC 595.

19. (2006) 8 SCC 212.

20. (2006) 8 SCC 212.

21. (2006) 8 SCC 212.

22. (1995) 2 SCC 745.

23. (2006) 8 SCC 212.

24. (2006) 8 SCC 212.

25. 2022 SCC OnLine SC 171.

26. (1991) 1 SCC 212.

27. SLP No. 6637 of 2019, order dated 10-2-2022 (SC).

28. (2002) 5 SCC 111.

29. 2022 SCC OnLine SC 204.

30. (2013) 8 SCC 519.

31. (2015) 16 SCC 100.

32. (2019) 3 SCC 429.

33. (2019) 3 SCC 429.

34. (2008) 3 SCC 1.

35. (2019) 3 SCC 39.

36. (1979) 4 SCC 260.

37. (2022) 4 SCC 643.

38. (2002) 4 SCC 274.

39. Devina Sharma, (2022) 4 SCC 643, 651.

40. (2022) 7 SCC 323.

41. (2018) 7 SCC 1.

42. (2018) 7 SCC 1.

43. 2020 SCC OnLine SC 968.

44. (2008) 5 SCC 609.

45. (1983) 1 SCC 305.

46. (1991) 2 SCC 104.

47. (1997) 6 SCC 7.

48. (1983) 1 SCC 305.

49. 2022 SCC OnLine SC 386.

50. (2005) 1 SCC 394.

51. 1992 Supp (3) SCC 217.

52. 1992 Supp (3) SCC 217.

53. 2022 SCC OnLine SC 533.

54. 2022 SCC OnLine SC 533.

55. (2014) 5 SCC 438.

56. (2011) 4 SCC 454.

57. (2017) 10 SCC 1.

58. 2022 SCC OnLine SC 837.

59. (1987) 1 SCC 213.

60. (1988) 2 SCC 602.

61. (2022) 10 SCC 51.

62. (1980) 2 SCC 565.

63. (1978) 1 SCC 240.

64. (2012) 1 SCC 40.

65. (2014) 8 SCC 273.

66. 2021 SCC OnLine Del 5629.

67. 2022 SCC OnLine Jhar 620.

68. (2018) 5 SCC 743.

69. (2007) 12 SCC 1.

70. (2022) 1 SCC 676.

71. 2004 SCC OnLine Del 53.

72. (1980) 1 SCC 81.

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