“It is a no brainer that the right to freedom speech and expression, in a human-rights based democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality which lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, do not permit such rights to be employed in a manner so as to attack the rights of another.”
Justice BV Nagarathna
Kaushal Kishor v. State of Uttar Pradesh, , 2023 SCC OnLine SC 6
Constitution Bench Verdicts
Demonetisation
Breakdown of the majority and minority opinions
While BR Gavai, J has written the majority opinion for himself and SA Nazeer, A.S. Bopanna, V. Ramasubramanian, JJ, to uphold the legality of the 2016 demonetization, BV Nagarathna, J is the lone dissenter who has held that though demonetisation was well-intentioned and well thought of, the manner in which it was carried out was improper and unlawful. [2023 SCC OnLine SC 1]
Freedom of Speech of Ministers
The issue emerged after SP leader Azam called the unfortunate incident of 2016 gang-rape of a minor and her mother in Uttar Pradesh a “political conspiracy only and nothing else”. V Ramasubramanian, J delivered the verdict for himself and SA Nazeer, AS Bopanna, BR Gavai, JJ, however, BV Nagarathna, J, while agreeing with the reasoning and conclusions arrived at by the majority on certain questions referred, went on to lend a ‘different perspective’ on some issues. [2023 SCC OnLine SC 6]
Did you know? In both the Constitution Bench judgments delivered by the Supreme Court in the month of January 2023, Justice BV Nagarathna was the lone dissenter on certain issues.
Delhi versus Centre
The tussle between the Delhi Government and the Centre explained as Supreme Court reserves verdict
On the final day of the hearing, Solicitor General, sought reference of Constitution Bench’s 2018 judgment which interpreted Article 239-AA of the Constitution and asserted the supremacy of the elected government by stating that Lieutenant Governor was bound by ‘aid and advice’ of Council of Ministers.
Euthanasia
A 5-Judge Constitution Bench of Supreme Court was hearing application to modify guidelines prescribed in 2018 Euthanasia Judgment and viewed that the guidelines need modifications. Thus, simplified the process for passive euthanasia.
Did you know? The Constitution Benches assembled in seven matters in the month of January 2023 alone, apart from delivering two judgments. Since 2022, the Constitution Benches have been sitting more regularly, and their hearings are being live telecasted. This much-needed change has been brought by former Chief Justice of India Uday Umesh Lalit1, who once said that he has never seen two constitution benches at the same time in the Supreme Court, adding that every Supreme Court judge is “good enough” to be given equal chance to become a part of the Constitution Benches2.
Unmissable Stories
Sikkim’s old settlers vis-à-vis Income Tax exemption
Noting that there is no disqualification for a Sikkim man, who marries a non-Sikkimese after 01.04.2008, the Supreme Court observed that the discrimination is based on gender.
While MR Shah, J, has struck down the definition of “Sikkimese” in Section 10(26AAA) of the Income Tax Act, 1961, Nagarathna, J, has called for saving the Explanation to Section 10(26AAA) and has created a stopgap ‘sub-clause (iv)’ till the Union of India makes the requisite amendment to the provision.
Cinema Hall Owners versus Movie Goers
Supreme Court finds no fault in cinema hall owners prohibiting outside food and beverages
The Supreme Court held that the J&K High Court transgressed its jurisdiction under Article 226 of the Constitution by directing the cinema hall owners not to prohibit movie goers from carrying eatables and beverages from outside within the precincts of a cinema hall and by directing the State to enforce this direction to the cinema hall owners.
Google versus CCI
The Supreme Court had reservation to express its opinion on the merits of the case which would otherwise affect the proceedings pending before NCLAT and stated that the findings of the CCI at the interlocutory stage was neither without jurisdiction nor suffered from any error which would necessitate interference in the appeal.
Lakhimpur Kheri Violence
Supreme Court grants interim bail to Ashish Mishra in Lakhimpur Kheri Case
Supreme Court grants interim bail to Ashish Mishra, son of Union Minister Ajay Mishra in an unfortunate and grave incident at Lakhimpur Kheri which led to the loss of eight lives, consisting of four protesting farmers, one journalist and three others.
Haldwani Eviction Case
“Cannot uproot 50,000 people overnight”; Supreme Court stays Haldwani Eviction
A workable arrangement had to be arrived at to segregate people who may have no rights in the land and those who have, coupled with rehabilitation schemes.
Did you know? 82 Judgments were delivered by the Supreme Court in the month of January 2023, including 2 Constitution Bench judgments3.
More Stories
Arbitration
Upholding the Karnataka High Court order, the Supreme Court held that the Karnataka High Court has not committed any error in permitting the respondents to file affidavits/additional evidence in the proceedings under Section 34 of the Arbitration Act. However, permitted the appellant to cross-examine and/or produce contrary evidence.
Contract and Specific Relief
While Justice Shah stated that the Kerala High Court has erred in interfering with the judgment of Trial Court of passing a decree for specific performance; Justice Nagarathna affirmed the Judgment of the High Court.
Crime, Criminals and Trials
Murder convicts in a 37-year-old case to walk free after Supreme Court gives them benefit of doubt
Supreme Court held that the charge that the convicts had committed murder was not proved beyond reasonable doubt; hence, they were and are entitled to the benefit of doubt. Thus, it set aside the Trial Court and Allahabad High Court’s judgment and order and acquitted the convicts.
The Supreme Court observed that the prosecutrix had betrayed her husband and three children by having relationship with the accused during the subsistence of her marriage and had continued to live with the accused even after finding out that he was a married man having children.
Supreme Court has ordered that the Rajasthan High Court’s impugned order being interlocutory in nature, shall not be treated as precedent for cancellation of bail granted to the petitioner in other cases, and the question of law was kept open to be decided in an appropriate case.
The Supreme Court stated that the Allahabad High Court erred in granting bail to the respondent, keeping in view the nature and gravity of the offence, the relationship between the parties and the prima facie evidence on record with reference to common intention as well as antecedents of the respondent.
Explained| Can bail be cancelled on merit once the accused is released on default bail?
“The Courts have the power to cancel the bail and to examine the merits of the case in a case where the accused is released on default bail and released not on merits earlier. Such an interpretation would be in furtherance to the administration of justice.”
The Supreme Court upheld the conviction order passed by Chhattisgarh High Court, and further held that a lapse of time in death would not per se constitute a determinative factor as to diminish the offender’s liability from the offence of murder to that of culpable homicide, not amounting to murder.
Supreme court has upheld a decision by the Bombay High Court that the period of parole should be excluded from the period of the sentence when considering 14 years of actual imprisonment for the purpose of premature release of convicts.
Dishonour of Cheques
Supreme Court sets aside Madras High Court’s reversal of acquittal in a cheque bouncing case
The Supreme Court observed that the scope of interference in an appeal against acquittal is limited and that the Madras High Court ‘could not have interfered with the finding of acquittal recorded by the learned Trial Court.
Environment Protection
“The Supreme Court held that the lands covered by the special orders issued under Section 4 of PLPA have all the trappings of forest lands within the meaning of Section 2 of the 1980 Forest Act and, therefore, the State Government or competent authority cannot permit its use for non-forest activities without the prior approval of the Central Government with effect from 25-10-1980.”
Health and Healthcare
Observing that performance of functions identical to those performed by medical practitioners by persons who do not possess the qualifications prescribed under the Central Act, could have dangerous consequences, the Supreme Court held that Rural Health Practitioners enlisted under the Assam Act, are underqualified to perform functions similar to those performed by medical practitioners registered in accordance with the Indian Medical Council Act, 1956.
Inviting tenders from the entities mentioned in paragraph 4(vi)(b) of the National AYUSH Mission Operational Guidelines is the most transparent and non-arbitrary method of allocation that can be undertaken. Hence, the appellant must henceforth purchase Ayurvedic medicines only through a free and transparent procedure such as tenders, and deviation from this rule to procure medicines by nomination can be done, only if exceptional circumstances exist.
Heritage Protection
Taking note of the sorry state of affairs as to how the city of Bengaluru, once considered to be one of India’s best cities, a ‘Garden city’ has been ruined on account of haphazard urban development, the Supreme Court observed that the warning flagged by the city of Bengaluru needs to be given due attention by the legislature, executive and the policy makers and proper balance needs to be struck between sustainable development and environmental protection.
“We are shocked and amazed at the manner in which the State of Rajasthan has permitted its heritage to be destroyed and continues to permit it to be destroyed while claiming its rights under the Rajasthan Escheats Regulation Act, 1956!” exclaimed the Supreme Court.
Insolvency and Bankruptcy
Inconsistent position taken in the Vidarbha Industries verdict? Supreme Court issues notice
The petitioner alleged that the National Company Law Appellate Tribunal had relied upon the decision of Vidarbha Industries, which even though was clarified in review petition of Axis Bank but was still contrary to the settled position in law laid down in Innoventive Industries. Tushar Mehta, Solicitor General contended that the principle enunciated in Vidarbha Industries would be liable to dilute the substratum of the Code.
The Supreme Court stated that it was neither a case where the appellant did not make any application within the stipulated time under the 2019 Scheme nor where the appellant deliberately did not deposit the settlement amount.
Practice and Procedure
It was observed that judicial discipline required that once the conviction was confirmed by the Supreme Court that too after hearing the accused, the High Court should not have thereafter made any comment on the merits of the case.
The Supreme Court’s observation came after the Commissioner of Customs (Appeal) had referred to Wikipedia for coming to the conclusion in a case under the Central Excise Tariff Act, 1985.
The Supreme Court noticed that in the case at hand, without giving any reasonable time to the investigating agency to investigate the allegations in the FIR, the Madras High Court has, in haste, quashed the criminal proceedings.
The observation of the Supreme Court came in a case where the deposition of the prosecutrix was recorded by the trial court in English language though she had deposed in her vernacular language.
The Supreme Court expressed its displeasure by the attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims.
The Supreme Court observed that the important role of the Regulator cannot be circumvented by simply asking for rectification under Section 111-A of the Companies Act, 1956.
Property rights
The Supreme Court observed that the defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession.
The Supreme Court has directed ONGC and State to either comply with the Gujarat High Court’s order directing the permanent acquisition of land by ONGC on or before 26.04.2023 or face necessary consequences.
While Justice Shah stated that the plaintiff had not produced the Power of Attorney, Justice Nagarathna opined that non-production of Power of Attorney was not fatal to the case of the original plaintiff.
Right to Information
The prayer seeking free public access to chargesheets and final reports was made relying on ruling in Youth Bar Association of India v. Union of India, (2016) 9 SCC 473, wherein the Supreme Court had directed copies of FIRs to be published within 24 hours of their registration on the police websites or on the websites of the State Governments.
SARFAESI
Supreme Court opined that instead of shifting the burden of proof on the secured creditor to prove that the secured property was not agricultural property, the Telangana High Court should have laid down the burden of proof on the borrowers.
The Supreme Court considered the provisions of Section 15 to 23 read with Section 24 of the MSMED Act and the provisions of SARFAESI Act and stated that there is no repugnancy between the two enactments and no conflict between the specific subject of ‘priority’. It, hence, upheld the subsequent enactment of law with non-obstante clause in SARFAESI Act over MSMED Act.
Borrower to pre-deposit 50% of the “debt due” including ‘interest’ under Section 18 of SARFAESI Act
The Court was called upon to decide as to while calculating the amount to be deposited as predeposit under Section 18 of the SARFAESI Act, 50% of which amount the borrower is required to deposit as pre-deposit and whether while calculating the amount of “debt due”, the amount deposited by the auction purchaser on purchase of the secured assets is required to be adjusted and/or appropriated towards the amount of pre-deposit to be deposited by the borrower under Section 18 of the SARFAESI Act.
Service matters
Supreme Court said that prior approval of the Director of Education is mandatory as per Section 18 of the Rajasthan Non-Governmental Educational Institutions Act, 1989, on termination after the disciplinary proceedings.
The bench of KM Joseph and BV Nagarathna, JJ has held that the definition of ‘family’ under the Central Civil Services (Pension) Rules, 1972 is a restrictive and specific one and cannot be expanded to take within its sweep, all heirs, as provided under Hindu law, or other personal laws.
Nursing Assistants not entitled to the Nursing Allowance on a par with the Staff Nurse
They neither had relevant experience nor possessed educational qualification for appointment as Staff Nurse. Therefore, the Supreme Court held that the High Court erred in directing that the Nursing Assistants serving in Assam Rifles were entitled to Nursing Allowance on a par with the Staff Nurse.
Taxation
Supreme Court noted that the ‘interest’ only follows the ‘principal’, therefore, the ‘principal’ being the payable tax, resulted into no liability to pay the tax along with return. Consequently, held that there is no liability to pay interest if there was no liability to pay the tax.
The Supreme Court observed that taxation depends upon the language of the charging section and what is brought to tax within the four corners of the charging section.
The Supreme Court was hearing the case where a manufacturer was earlier manufacturing “Spun Line Crown Cork” used for sealing the glass bottles but now with the use of modern technologies, was manufacturing “Double Lip Dry Blend Crowns”, also used for sealing the glass bottles.
Did you know? Supreme Court gave split verdict in two judgments in the month of January 2023. Both the judgments were delivered by the bench of MR Shah and BV Nagarathna, JJ.
Know Thy Judges
Justice S. Abdul Nazeer Retires- Throwback to a Career of Four Decades
Justice S. Abdul Nazeer retired after an extensive tenure of 6 years as a Supreme Court judge. During this time, Justice Nazeer had been a part of some path-breaking decisions such as- Right to Privacy, Triple Talaq, Ayodhya verdict etc. Justice Nazeer has also been the part of the Constitution Bench which decided upon the validity of Central Govt’s 2016 Demonetisation Scheme.
Know Thy Judge | Justice Chudalayil Thevan Ravikumar
Justice C.T. Ravikumar is known among the legal circle for having a firm grasp of precedents and statutory provisions.
Did you know? Justice Nazeer’s retirement has brought down the Supreme Court’s judge strength to 27 (The sanctioned strength is 34, including the CJI).
Cases Reported
SCC Weekly
From the SCC archives
Trespasser’s right to protect his person & property against true owner
In Ram Rattan v. State of U.P., (1977) 1 SCC 188, the 3-judges Bench comprising S. Murtaza Fazal Ali, P.N. Bhagwati, and V.R. Krishnaiyer, JJ., delved into the scope of a trespasser to exercise the right of private defence of property and person.
1. Supreme Court Constitution Bench 2022 Roundup & the matters to look forward to in 2023: The SCC OnLine Blog, dated 28.12.2022
2. Enjoyed journey of 37 years in Supreme Court: CJI U U Lalit, The Print; dated 07.11.2022
