“A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements”.
– Justice Surya Kant1
Early Life and Education
Justice Surya Kant was born on 10-02-1962 in Hisar (Haryana). He earned his LL. B degree in 1984 from Maharishi Dayanand University, Rohtak and completed his LL. M from Directorate of Distance Education, Kurukshetra University, Kurukshetra in 2011and also earned the distinction of standing First Class First in his Master’s degree in Law2.
Advocacy and Judgeship
Justice Kant began his practice in District Court, Hisar in 1984 but later in 1985 shifted his base to Punjab and Haryana High Court. His practice was heavily focused on Constitutional, Service and Civil matters. He represented number of Universities, Boards, Corporations, Banks during his practice, and later was designated as Senior Advocate in March 2001.
Did You Know? Justice Kant was appointed as the youngest Advocate General of Haryana on 07-07-2000.3
Justice Kant was appointed as Advocate General, Haryana and held the office till his elevation as a Permanent Judge to the Punjab and Haryana High Court on 09-01-2004. He was also nominated as a Member of the Governing Body of National Legal Services Authority on 23-02-2007 for two consecutive terms.
Justice Kant became the Chief Justice of Himachal Pradesh High Court with effect from 05-10-2018 and on 24-05-2019 was elevated as a Judge of the Supreme Court of India.4
Notable Judgements at Supreme Court
Did You Know? Justice Surya Kant is slated to be appointed as the Chief Justice of India in May 2025.5
Ashish Mishra v. State of U.P., 2023 SCC OnLine SC 86
In a special leave petition filed against the judgment and order passed by the Allahabad High Court, the Division bench of Surya Kant and J.K Maheshwari, JJ., 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.
Tejesh Suman v. State of Rajasthan, 2023 SCC OnLine SC 76
In a special leave petition filed against the judgment and order of the Rajasthan High Court, wherein the Court had vacated the interim protection awarded to the petitioner, because he was taken into custody in another matter, the division bench of Surya Kant and V. Ramasubramanian, JJ., ordered that the 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 pending cases shall be decided by the High Court as per its own merits and in accordance with law. However, the question of law that “whether anticipatory bail would be maintainable if a person is already arrested and is in custody in relation to another offence” was kept open to be decided in an appropriate case.
Hewlett Packard India Sales (P) Ltd. v. Commissioner of Customs (Import), 2023 SCC OnLine SC 31
While dealing with a case where 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 Division bench of Surya Kant* and Vikram Nath, JJ., cautioned the adjudicating authorities against completely relying on such online sources.
Also Watch | Don’t rely on crowd sourced resources like Wikipedia; SC cautions Courts & Adjudicating Authorities
Don’t rely on crowd sourced resources like Wikipedia; SC cautions Courts & Adjudicating Authorities
CCE v. Merino Panel Product Ltd., 2022 SCC OnLine SC 1677
In an appeal originated from the order passed by the Customs, Excise and Service Tax Appellate Tribunal setting aside the show cause notice issued by the appellant/Revenue to the respondent/ Assessee, on the ground that it had invoked an incorrect method of valuing related party transaction, the division bench of Surya Kant* and J.B. Pardiwala, JJ., held that the circular of 01-07-2002 is not contrary to the intent of the Central Excise Act, 1944 and Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 and the object behind it is to merely use “reasonable means” as outlined under Rule 11 of the CEVR, in conformity with S. 4(1)(a) of the CEA and R. 9 of the CEVR, so as to reach the assessable value of goods for determination of excise duty.
Singapore Airlines Ltd. v. CIT, (2023) 1 SCC 497
In an appeal filed by Singapore airlines against the judgment passed by the Delhi High Court holding that the airlines is required to deduct tax at source under S. 194-H of the Income Tax Act, 1961, on the supplementary commission accrued to travel agents by the airlines to sell airline tickets, the division bench of Surya Kant* and MM Sundresh, JJ., held that if a relationship between two parties as culled out from their intentions as manifested in the terms of the contract between them, indicate the existence of a principal agent relationship as defined under Section 182 of the Contract Act, then the definition of “Commission” under Section 194-H of the IT Act stands attracted and the requirement to deduct TDS arises. Further, it overruled CIT v. Qatar Airways, 2009 SCC OnLine Bom 2179.
In re TN Godavarman Thirumulpad v. Union of India, 2022 SCC OnLine SC 1318
In a writ petition and interlocutory applications filed seeking clarification of the judgment passed by this Court, wherein it was ordered that, there should be no development within 1 Km of the eco-sensitive zone (‘ESZ’) around the national park, sanctuary or protected area, that was later modified, allowing ongoing projects to continue, the full bench of B.R. Gavai, Surya Kant and J.B. Pardiwala, JJ., upheld the eco-sensitive zone notifications for Sanjay Gandhi National Park and Thane Flamingo Creek Sanctuary.
Babanrao Rajaram Pund v. Samarth Builders & Developers,(2022) 9 SCC 691
In an issue revolving around the importance of the words “final and binding” in an arbitration agreement, the Division bench of Surya Kant* and Abhay S Oka, JJ., held that when the arbitration agreement luminously discloses the intention and obligation of the parties to be bound by the decision of the tribunal, the lack of express mention of the words “final and binding” does not mean that a valid arbitration clause does not exist.
“Even if we were to assume that the subject-clause lacks certain essential characteristics of arbitration like “final and binding” nature of the award, the parties have evinced clear intention to refer the dispute to arbitration and abide by the decision of the tribunal. The party autonomy to this effect, therefore, deserves to be protected.”
N.V. Sharma v. Union of India, 2022 SCC OnLine SC 1003
In a relief to politician and lawyer Nupur Sharma, the Division bench of Surya Kant and JB Pardiwala, JJ., transferred all the FIRs filed against her in Prophet Remark case to the IFSO Unit of the Delhi Police for the purpose of investigation. The Court also clarified that the directions in the present order will also extend to any other FIRs/complaints which may be registered/entertained against Nupur Sharma in future in respect of the same subject matter. Should such an eventuality arise, the investigation of those FIRs/complaints shall also stand transferred to the IFSO Unit of the Delhi Police for the purpose of investigation.
Also Read |Prophet Remark Row | Here’s why Supreme Court has stayed Nupur Sharma’s arrest
S.G. Vombatkere v. Union of India, (2022) 7 SCC 433
In the petitions challenging the Constitutionality of S. 124-A of the Penal Code 1860 dealing with the offence of Sedition, the 3-judge bench of NV Ramana, CJ., Surya Kant and Hima Kohli, JJ., urged the State and Central Governments to restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124-A of IPC while the sedition law is under consideration.
“…we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments.”
Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321
In the Lakhimpur Kheri violence case, where the Allahabad High Court had granted bail to the accused Ashish Mishra despite the fact that the ‘victims’ had got disconnected from the online proceedings and could not make effective submissions, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ while deciding whether a ‘victim’ as defined under Section 2(wa) CrPC is entitled to be heard at the stage of adjudication of bail application of an accused., held that a ‘victim’ within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings.
“He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.”
Lawyers Voice v. State of Punjab, (2022) 3 SCC 521
After a massive security lapse that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ observed that the matter cannot be left to be resolved through one-sided enquiries and a judicially trained independent mind, duly assisted by officers who are well acquainted with the security considerations and the Registrar General of the High Court who has seized the record, would be best placed to effectively visit all issues and submit a comprehensive report. The Court, hence, formed a committee to be chaired by Justice Indu Malhotra, former Supreme Court Judges.
N. Raghavender v. State of A.P., 2021 SCC OnLine SC 1232
The 3-Judge Bench of N.V. Ramana, CJ., Surya Kant* and Hima Kohli, JJ., held that the Bank is not the trustee of the money that a customer deposits in a bank and the same is not held by the former on trust for him. The money so deposited becomes a part of the banker’s funds who is under a contractual obligation to pay the sum deposited by a customer to him on demand with the agreed rate of interest. Such a relationship between the customer and the Bank is one of a creditor and a debtor.
Surinder Singh v. State (UT of Chandigarh), 2021 SCC OnLine SC 1135
Explaining the principles of sentencing policy, the 3-judge bench of NV Ramana, CJ and Surya Kant* and AS Bopanna, JJ., held that while there are practical difficulties in achieving absolute consistency in regards to sentencing, the awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence.
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Bijendar v. State of Haryana, (2022) 1 SCC 92
In a case where the Trial Court and Punjab and Haryana High Court had shifted the burden of proof on the accused merely for the reason that there has been a rise in the incidents of dacoity, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ., held that the Trial Court and the High Court have erroneously drawn adverse inference against the accused, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the accused.
“It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are oftenly reluctant to speak truth due to fear or other extraneous reasons.”
Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985
The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ., appointed an Expert Committee to investigate the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”
While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, here’s why it eventually decided to step in.
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State of M.P. v. Mahendra, 2021 SCC OnLine SC 965
In a case where the accused had lured minor girls aged 8 and 9, took them inside the room, closed the doors and rubbed his genitals against those of the victims, the Division bench of Surya Kant* and Hima Kohli, JJ., held that these acts were deliberately done with manifest intention to commit the offence of rape and were reasonably proximate to the consummation of the offence.
The Court held that since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, he was guilty of attempting to commit rape as punishable within the ambit and scope of S. 511 read with S. 375 IPC as it stood in force at the time of occurrence. The incident dates back to year 2005.
Vipan Kumar Dhir v. State of Punjab, 2021 SCC OnLine SC 854
While explaining the principles governing cancellation of bail, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ., held that it is necessary that ‘cogent and overwhelming reasons’ are present for the cancellation of bail.
“Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non-conducive to fair trial, making it necessary to cancel the bail.”
PLR Projects (P) Ltd v. Mahanadi Coalfields Ltd., 2021 SCC OnLine SC 332
Taking note of the existing 220 vacancies in the High Courts, the 3-judge bench of SA Bobe, CJ and SK Kaul and Surya Kant, JJ stressed upon the importance of the Chief Justices of the High Courts making recommendations in time and opined that there is no such impediment to initiate a new process without waiting for the result of the earlier recommendations.
The Court noted that the vacancies are known and the norms permit making recommendations up to six months in advance. However, even recommendations for 220 existing vacancies appear not to have been made much less for vacancies, which are going to arise in the next six months.
Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283
A 3-Judge Bench comprising of N.V. Ramana, Surya Kant* and Aniruddha Bose, JJ., upheld the judgement of High Court of Judicature at Madras, whereby the order of acquittal of the Judicial Magistrate was reversed and the appellants had been convicted under Section 138 of the NIA, 1881. The Bench expressed,
“Once the appellant 2 had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt.”
Union of India v. K.A. Najeeb, (2021) 3 SCC 713
The 3-judge bench of NV Ramana, Surya Kant* and Anirudhha Bose, JJ., refused to interfere with the bail granted by Kerala High Court to KA Najeeb arrested under the Unlawful Activities (Prevention) Act, 1967 but has imposed the condition that Najeeb shall mark his presence every week on Monday at 10 a.m. at the local police station and inform in writing that he is not involved in any other new crime. He shall also refrain from participating in any activity which might enrage communal sentiments.
“In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith.”
Shah Faesal v. Union of India, (2020) 4 SCC 1
In a writ petition filed under Art. 32 of the Constitution pertaining to two Constitutional Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a 5-Judge Constitution Bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that
“Judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”
Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 3 SCC 52
The 9-Judge Constitution Bench of SA Bobde, CJ and R. Banumathi, Ashok Bhushan, L. Nageswara Rao, M M Shantanagoudar, S A Nazeer, R. Subhash Reddy, B R Gavai and Surya Kant, JJ, while framing seven issues in the Sabrimala reference, opined that the same can be referred to a larger bench in its Review jurisdiction.
Ravi v. State of Maharashtra, (2019) 9 SCC 622
While relying on California v. Ramos, 463 U.S. 992 where it was observed that “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination”, a 3-judge bench comprising of R. F. Nariman, Surya Kant* and R. Subhash Reddy JJ., upheld (2:1) the death penalty awarded to an accused for rape and murder of a two- year- old girl.
The Court observed that the Sentencing Policy needs to strike a balance between (a) deterrent effect and (b) complete reformation for integration of the offender.
“The Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12years without murder of the victim, ‘death penalty’ can also be imposed.”
The Court shedding the light on duty of the Court and expectation of the people of the country, observed that “The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterrent punishment that commensurate(s) with the gravity of offence.”
Rajesh Dhiman v. State of H.P., (2020) 10 SCC 740
“If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account.”
While analysing the issues (1) whether bias was caused by complainant also being the investigating officer, (2) whether alternate version has been established and what is the effect of lack of independent witnesses and (3) whether High Court erred in reversing acquittal in appeal, a 3-judge bench comprising of NV Ramana, Surya Kant,* Hrishikesh Roy, JJ., held that, firstly, the mere fact that the investigating officer was also the complainant would not entitle an accused to acquittal and that it was necessary to demonstrate either actual bias or real likelihood of bias. Secondly, if alternate version has been established, the evidence given must only be so conclusive that all reasonable doubts are removed from the mind of an ordinary person and in the present case, the appellant failed to make out a case with alternate version. Moreover, it was held that non-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Thirdly,the Court held that High Courts could reverse acquittals and award appropriate sentence, including where there are patent errors of law, grave miscarriage of justice, or perverse findings of fact.
Raveen Kumar v. State of H.P., (2021) 12 SCC 557
“The Supreme Court in exercise of its powers under Article 136 ordinarily examines only whether the High Court has failed to correctly apply principles governing appeals against acquittal.”
A 3-judge bench comprising of NV Ramana, Surya Kant,* Hrishikesh Roy, JJ., while relying on Hira Singh v. Union of India, (2020) 20 SCC 272, held that for the purpose of sentencing and determining whether the threshold of ‘commercial quantity’ was met, the total quantity of the mixture, including the neutral substance is relevant.
The Court clarifying the moot point whether High Court can set aside a finding of acquittal, held that there was no bar on a High Court set aside a finding of acquittal by a lower court.
“There is no difference of power, scope, jurisdiction or limitation under the CrPC between appeals against judgments of conviction or of acquittal. An appellate court is free to reconsider questions of law as well as fact, and re appreciate the entirety of evidence on record. There is, nonetheless, a self-restraint on the exercise of such power, considering the interests of justice and the fundamental principle of presumption of innocence. In practice, appellate courts are reluctant to interfere with orders of acquittal, especially when two reasonable conclusions are possible on the same material.”
The Court also opined that courts should be cautious while relying on any evidence which the witness had not been confronted with despite an opportunity to do so.
Kirti v. Oriental Insurance Company Ltd., (2021) 2 SCC 166
“…the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.”
While deciding a motor vehicle claim and taking account into gendered nature of housework, the 3-judge bench of NV Ramana,* SA Nazeer and Surya Kant,* JJ., increased the total motor accident compensation of Rs 22 lakhs awarded by the Delhi High Court to Rs 33.20 lakhs and held that “any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience.”
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Rohtas v. State of Haryana, 2020 SCC OnLine SC 1014
“The duty of the prosecution is to seek not just conviction but to ensure that justice is done. The prosecution must put forth the best evidence collected in the investigation.”
While deciding a criminal appeals, the 3-judge bench of NV Ramana, Surya Kant* and Aniruddha Bose, JJ., held that usually the ‘common intention’ is indirectly inferred from conduct of the individuals and rarely through direct evidence and that the appellants are individually guilty for the offence of attempted murder, without the aid of Section 149 IPC because
The Court also explained the difference between Sections 34 and 149 of the IPC and held that “Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.”
Pravin Kumar v. Union of India, (2020) 9 SCC 471
“Judicial review is an evaluation of the decision making process and not the merits of the decision itself.”
While dismissing an appeal, a 3-judge bench of NV Ramana, SA Nazeer and Surya Kant,* JJ., held that the employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding.
The Court while analysing the issue whether strict rules of evidence can be applied to disciplinary proceedings, held that strict rules of evidence and procedure of a criminal trial are inapplicable to disciplinary proceedings. The Court also observed that though strict rules of evidence are inapplicable to disciplinary proceedings, but sometimes under certain circumstances it becomes necessary and enquiry officers put questions to witnesses in such proceedings in order to discover the truth
Discussing the scope of Judicial Review in service matters, the Court opined that “Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.”
Jitendra Singh v. Ministry of Environment, (2020) 20 SCC 581
“Protection of such village-commons is essential to safeguard the fundamental right guaranteed by Article 21 of our Constitution.”
While deciding an appeal for forcible possession of a common, local village-pond by the respondent industrialists, the Division Bench of Arun Mishra and Surya Kant,* JJ., held that ponds are public utilities meant for common use and that schemes which extinguish local water bodies albeit with alternatives are violative of Constitutional mandate provided under Art. 21 of the Constitution of India therefore are liable to be struck down.
“Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.”
CBI v. Sakru Mahagu Binjewar, (2019) 20 SCC 102
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought to be done save in the rarest of rare case when the alternative option is unquestionably foreclosed.”
A 3-judge bench comprising of Arun Mishra, BR Gavai and Surya Kant,* JJ., dismissed an appeal filed by the CBI challenging commutation of death penalty by the High Court in a murder case.
Relying on Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767, the Court held that S. 57 IPC does not in any way limit the punishment of imprisonment for life to a term of 20 years. Therefore, he upheld the commutation of a death penalty to 25-years ‘actual imprisonment’.
In Re: Contagion of COVID-19 Virus in Prisons, (2021) 12 SCC 819
“Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”
The 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ., noticing the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19), directed that the States/Union Territories to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.
Bhagwan Singh v. State of Uttarakhand, (2020) 14 SCC 184
“A gun licensed for self-protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents.”
Partly allowing an appeal, the 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., opined that celebratory firing of guns licensed for self-protection needs to stop.
The Court held that “appellants cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”
Closure of Mid-Day Meal Scheme, In re, (2020) 12 SCC 213
“While dealing with one crisis, the situation may not lead to creation of another crisis.”
Taking Sou Motu cognizance on non-availability of mid-day meals for children due to the closure of schools due to coronavirus spread, the 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., directed the States to come out with a uniform policy with the measures preventing spread of COVID-19 and also ensuring that the schemes for providing nutritional food to the children and nursing and lactating mothers are not affected.
Prahaladbhai Jagabhai Patel v. State of Gujarat, (2020) 3 SCC 341
Relying on Babu Singh v. State of U.P, (1978) 1 SCC 579, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., in the interests of justice, directed the release of appellants on bail.
The Court observed that “punitive harshness should be minimized and restorative devises to redeem the man, even through community service, meditative drill, etc. should be innovated.”
In re: Assessment of the Criminal Justice System in response to Sexual Offences, (2020) 18 SCC 540
“The need for speedy trial of the cases relating to offence of rape has been emphasized again and again this Court.”
Taking Sou Motu cognizance on assessment of the criminal justice system in response to sexual offences, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., noted that while the Nirbhaya gang rape case of 2012 has shocked the conscience of the nation but “the Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.”
The Court has called for records and status reports from all the States on various aspects of the criminal justice system in cases of sexual offences and held that previous sexual experience and in effect habituation to sexual intercourse is now irrelevant for the purpose of medical examination.
“Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman.”
The Court further held that, Forensic examination and report play important role during investigation as well as trial for linking the culprit with crime. Similarly, Medical treatment and examination of victim also plays a very important role.
“The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape.”
“Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial.”
Manoharan v. State, (2020) 5 SCC 782
Dismissing the review petition filed by Appellant to review it’s 2:1 verdict awarding death sentence, the 3-judge bench of RF Nariman, Surya Kant* and Sanjiv Khanna,* JJ., held that the dissent by one Judge is not a bar for upholding death penalty.
The Court held that in the present case the appellant misused societal trust and the crime was not a crime a passion but a well- crafted crime. The Crime committed by the Appellant were grave and shock the conscience of this Court and society that we cannot commute the sentence and without any doubt it will fall under rarest of the rare category.
“It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.”
Agreeing with the Justice Surya Kant on the dismissal of review petition and upholding of the conviction of the accused, Justice Khanna held that there is no good ground and reasons to review his observations and findings in the minority judgment.
Notable Judgements at High Court
Kulwinder Singh v. State of Punjab, 2007 SCC OnLine P&H 792
“The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice.”
Over-ruling the majority view in Dharambir v. State of Haryana, 2005 SCC OnLine P&H 190 and approving the minority view expressed by V.K. Bali, J., a 5-judge bench comprising of Vijender Jain,* C.J., P. Sathasivam, Rajive Bhalla, Surya Kant and Mahesh Grover, JJ., while deciding the issue “Whether the High Court has the power under Section 482 of the Cr.P.C. to quash the criminal proceedings or allow the compounding of the offences in the event of the parties entering into a compromise in the cases which have been specified as non-compoundable offences and in particular, in view of the provisions of Section 320 of the Cr.P.C.?”, held that the compromise is an essential condition for harmony in the society, it is the soul of justice and if the power provided under Section 482 CrPC is used to enhance such a compromise to reduces friction then it truly is “finest hour of justice”.
“The power under Section 482 of the CrPC cannot be a hostage to one class or category of cases. That would be a complete misconstruction of the intent of the Legislature, who placed its utmost faith in the inherent power of the High Court to break free the shackle of other provisions of the Code, to give effect to any order under it or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The wide amplitude of this provision of law cannot be diminished by any myopic interpretation and any straightjacket prescription.”
Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479
Justice Surya Kant* while deciding whether jail inmates have a right to have a conjugal life and procreation within the jail premises and whether such right comes under Art. 21 of the Constitution of India, dismissed the petition on the ground that the present jail infrastructure does not permit conjugal visits in jail, but the petitioner have sufficient condition to opt for parole.
Discussing the role of Court regarding protecting the rights of prison-inmates, the Court observed that “the Judiciary as the principal executor and promoter of the rule of law has to have major stakes in respect of the conditions prevailing in the prisons. The duty of the Courts towards jail reforms has become heavier than before after the enforcement of our Constitution as Article 21 guarantees dignified life to one and all including the prison-inmates.”
The Court held that the right to procreation survives incarceration and the right to life and personal liberty under Article 21 of the Constitution of India grants inmates the right to have conjugal visits or avail of artificial insemination.
“The right to conjugal visits or procreation or for that matter the right to secure artificial insemination as a supplement, are also, thus, subject to all those reasonable restrictions including public order, moral and ethical issues and budgetary constraints which ought to be read into the enjoyment of such like fundamental right within our Constitutional framework.”
Viresh Shandilya v. Union of India, 2004 SCC OnLine P&H 1054
In a PIL filed under Art. 226 of the Constitution of India regarding handing over the investigation of the “Burail Jail Break Case” to the CBI, a Division Bench comprising of Binod Kumar Roy, C.J. and Surya Kant,* J., declined to accept a blanket ban on these facilities as it would deprive not only the majority of inmates who are mere “under-trials” from the amenity of viewing TV but also will cause adverse effects upon the reformatory methods required to be adopted in the model jails even in relation to the ‘convicts’.
“In our view, the “under-trials” as well as the “prisoners” lodged in the Model Jail, Burail too have a right to information and the television can play a crucial role in that regard and to bring them in the mainstream of the civilized society, it will be too hard and anti-thesis of international conventions if a complete ban on viewing of TV is imposed.”
Madan Lal v. State of H.P., 2018 SCC OnLine HP 1495
Examining the issue whether the petitioner, as an interim measure be allowed the basic amenities of water and electricity, the Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., reiterated that right to water and electricity supply is an integral part of right to life under Article 21 of the Constitution of India.
“Potable water or electricity are integral part of Right to Life within the meaning of Article 21 of the Constitution of India. These are basic necessities for human being and can well be termed as essentials of human rights.”
Sharwan Kumar v. State of H.P, 2018 SCC OnLine HP 1695
Considering the petitioner’s concern regarding disposal of waste of the slaughtered birds or to ensure that it does not cause any nuisance to the adjoining area, the Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., directed the respondent authorities to ensure that the prescribed rules and conditions for setting up a slaughterhouse are meticulously complied with.
Anil Bansal v. State of H.P., 2018 SCC OnLine HP 1617
In a PIL filed under Art. 226 of the Constitution of India regarding non-availability of legal aid to inmates of the jail, the Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., directed the respondent authorities to provide legal aid with immediate effect to jail inmates.
Subhash Chand v. State of Haryana, 2007 SCC OnLine P&H 627
A 3-judge bench comprising of Vijender Jain, C.J., Rajive Bhalla and Surya Kant,* JJ., held that the refusal to accept the highest bid cannot foreclose the right of the highest bidder to put the action of the competent authority to judicial scrutiny, however, in those cases heavy onus will lie on the petitioner to establish his allegations as the State action shall always be presumed to be in accordance with law.
“The highest bidder who had a legitimate expectation to acquire ownership of the property, unless his bid was found to be suffering from any legal infirmity, has an indefeasible right to knock at the doors of an appropriate forum including a Constitutional Court and to question the legality of the decision of the competent authority on grounds like it being contrary to the Statute or the rules or the Constitution.”
The Court also held that the State Government cannot refuse to confirm the highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons.
* Judge who has penned the judgment.
*Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd., has prepared this report