Supreme Court February 2023| Full strength of 34 judges; AIBE; Decriminalisation of adultery; Compensation for bad haircut; DNA test in Divorce cases; and more

This roundup revisits the analyses of Supreme Court’s judgments/orders on validity of AIBE; ex-communication of Dawoodi Bohras; decriminalisation of adultery; permissibility of DNA test of children to prove allegations of adultery; and more. It also covers reports on the career trajectory & important decisions of Justice Surya Kant and Justice Dipankar Dutta and the newly appointed 7 judges of the Supreme Court; Explainers on important law points; and Cases Reported in SCC Weekly in the month of February.

“Genetic information is broadly understood as shedding light on a person’s essence, as going to the very heart of who he/she is. That kind of intimate, personal information, which is so highly valued in our society, is precisely what the law protects in the right of privacy, which extends even to children.”

Justice BV Nagarathna

Aparna Ajinkya Firodia v. Ajinkya Firodia, 2023 SCC OnLine SC 161

Constitution Bench Verdicts

‘AIBE valid; BCI must ensure quality of lawyers entering the profession’: Read 8 suggestions by Supreme Court Constitution Bench

“Quality of lawyers is an important aspect and part of administration of justice and access to justice. Half-baked lawyers serve no purpose. It is this quality control, which has been the endeavour of all the efforts made over a period of time.”

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Ex-communication in Dawoodi Bohras matter deserves to be tagged with 9-judge bench Sabarimala Review due to overlapping issues

The 5-judge Constitution Bench observed that the decision which will be rendered by the nine-Judge Bench in the Sabarimala Temple Review will have a direct impact on the questions which arise for determination in this case.

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Decriminalisation of Adultery| Applicability of 2018 Joseph Shine judgment to defence personnels: Supreme Court reserves judgment

Applicant submitted that the 2018 judgment may cause instability within the defence personnel’s services since they function in peculiar conditions who are separated from their families for long durations when posted on borders under challenging conditions, in view of the 2018 judgment, there will always be a concern in their minds about the family indulging in untoward activity.

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Did you know? In the month of February 2023, the Maharashtra Political battle dominated the hearings before the Supreme Court’s Constitution Bench.

Read all the updates from the judgments delivered and the matters heard by the Constitution Bench in the month of February 2023 here.

Supreme Court Constitution Bench February 2023| Two verdicts delivered; Maharashtra’s political battle dominates hearings

Unmissable Stories

Supreme Court gets 7 new Judges; achieves sanctioned strength of 34

The month of February 2023 saw a lot of action in the Supreme Court, with 7 Judges swearing in as Supreme Court judges.

Know all about them here and here.

Rs. 2 Crores compensation for a bad haircut? Maybe! But not in absence of material supporting claim of loss suffered; Supreme Court asks NCDRC to decide matter afresh

In the case at hand, the woman had sought Rs. 3 Crores compensation, claiming that as a result of the bad haircut, she could not continue to lead her normal busy life as she no longer looked pretty; she had to face great humiliation and embarrassment; her career in the world of modelling was completely shattered; she went into a state of depression. NCDRC had awarded her Rs. 2 Crore compensation but without any material being produced by the woman to quantify the compensation.

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“Child cannot be used as a pawn to prove allegation of adultery against wife”; SC lays down scope of using DNA profiling in divorce cases

The Supreme Court held that merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. Only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.

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Justice LC Victoria Gowri appointment case vis-à-vis scope of judicial review in matters relating to appointment of High Court judges

Supreme Court said that the conduct of the judge and her/his decisions must reflect and show independence, adherence to the democratic and constitutional values. This is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights and the Rule of law.

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Also read: How in the fight between Justice LC Victoria Gowri’s ‘eligibility’ versus ‘suitability’ to become a judge, ‘eligibility’ won

Why Supreme Court allowed AIADMK leader E. Palaniswami to continue as the interim general secretary

Courts should not interfere in the internal issue of a party and leave it open to the party and its members to take a particular decision for better administration, stated Supreme Court

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Supreme Court stays Kerala HC order directing a woman in same-sex relationship to undergo counselling

The 3-judges Bench of Supreme Court has stayed the impugned order of the Kerala High Court whereby the High Court had asked DLSA to record statements of the detenu and make her undergo counselling. Allegedly, the woman has been kept in illegal detention by her parents.

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Supreme Court strikes balance; 20-year-old pregnant woman’s child to be adopted by couple registered with CARA

The woman lost her father during the Covid-19 pandemic and her mother is unwell. She also has a married sister, 10 years older to her. However, all of them showed their inability to raise the child.

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Contract and Specific Relief

Insurance Contract must be read as a whole with attempt to harmonise the terms; Supreme Court reiterates

The matter pertains to death of a Constable during election duty and claim of insurance raised after more than 7 years of the incident, wherein, the liability of insurance company and Election authorities was in question before the Supreme Court.

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Supreme Court shows dismay over Trial Court & Telagana HC’s orders allowing “hopelessly delayed” application seeking extension of time filed after 853 days; sets aside order

The Supreme Court was unimpressed with the explanation given by the plaintiff for the delay of 853 days that he initially fell sick with Jaundice and was later confined to house with High Blood Pressure, Diabetes and other diseases. The petition had extension of time to deposit the balance sale consideration of Rs. 15,00,000/-.

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Criminal Trials and Procedure

‘Conviction on the basis of ‘last seen’ theory not justified’; Supreme Court acquits accused in a 7-year-old boy’s kidnapping and murder case

The Supreme Court was of the view that the basic principle of criminal jurisprudence is that in circumstantial evidence cases, the prosecution is obliged to prove each circumstance, as well the as the links between all circumstances, beyond reasonable doubt. Such circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and the same should unerringly point towards the guilt of the accused.

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Supreme Court grants bail to murder accused in custody for more than 14 months

In a case of Cross FIRs relating to murder and attempt to murder, the Supreme Court has granted bail to the main accused in the murder case.

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When evidence unambiguously proves the guilt, absence of motive cannot weaken the conclusions: Supreme Court

The Supreme Court refused to grant the benefit of General Exception of unsoundness of mind under IPC in favour of the appellant, since he failed to discharge his burden of proof.

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Supreme Court grants anticipatory bail to 85% disabled accused in cheating case

Supreme Court in a case pertaining to allegations of cheating and criminal breach of trust, held that the accused is entitled for anticipatory bail, and directed the Investigating Agency to follow the procedure prescribed under CrPC for investigation against the disabled person

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Petition filed under Section 156(3) CrPC must satisfy the essential ingredients to attract alleged offences: Supreme Court

The Supreme Court observed that if allegations in the petition are vague and are not specific with respect to the alleged offences, it cannot lead to an order for registration of an FIR and investigation on the accusation of commission of the offences alleged.

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No illegality associated with the establishment of Delimitation Commission for the UT of Jammu and Kashmir: Supreme Court

Supreme Court held that there is neither illegality associated with the establishment of the Delimitation Commission, nor anything illegal about the exercise of delimitation of the constituencies undertaken by it.

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Caste-based discrimination in IIT-K| Continuation of proceedings can be a barrier in bringing back cordiality between faculty: Supreme Court disposes of criminal appeal

In a case related to caste-based discrimination against an associate professor of IIT-K by fellow faculty members, the Supreme Court played a conciliatory role and handled a very sensitive matter with equal sensitivity.

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Development Disputes

‘Blanket order directing status quo stalling entire 115-acre project not justified’: Supreme Court

Guided by the principles of prima facie case, balance of convenience and irreparable injury, the Supreme Court set aside the decision of Division Bench of Delhi High Court restraining a commercial project spread across 115-acres.

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‘Right to property not absolute; can be regulated under Town Planning laws’; Supreme Court upholds Rule mandating reservation of Open Spaces in Development Projects

The Supreme Court observed that an owner of land may not have an absolute and unqualified right which is the idea which not unnaturally comes to mind when the idea of ownership is under consideration.

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‘Amount deposited with the Registry should be deposited with banks to avoid loss’; Supreme Court asks Courts/Judicial Forums to frame guidelines

In a builder-home buyers’ dispute, the Supreme Court agreed with the builder ‘s argument that the rule embodied in Order XXI, Rule 4 of CPC, was applicable and the builder could not be fastened with any legal liability to pay interest after April 2005. The bench further opined that all courts and judicial forums should frame guidelines in cases where amounts deposited with the office or registry of the court or tribunal, should mandatorily be deposited in a bank or some financial institution, to ensure that no loss is caused in the future.

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Dishonour of Cheques

Supreme Court’s power under Section 406 CrPC to transfer Section 138 NI Act cases and effect of non-obstante clause under Section 142(1) NI Act

Supreme Court said that as four of the six cases have been filed by the respondent company before the Dwarka Courts at New Delhi and only two such cases are pending before the Courts at Nagpur, it would be convenient and in the interest of all concerned, that the cases be transferred to the Dwarka Courts at New Delhi.

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Section 138 NI Act| Conviction cannot be confirmed once parties enter into MoU for amicable settlement of dispute: Supreme Court

The Supreme Court observed that such settlement is nothing but a compounding of the offence and hence, the Court cannot override such compounding and impose its will.

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Supreme Court’s verdict on prospective applicability of MHA Notification restricting OCI cardholders from competing with Indian Citizens in NEET

The Supreme Court held that the impugned notification taking away the accrued rights of OCI cardholders should have prospective effect on children born after the said date.

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Environment Protection

Supreme Court directs District Coastal Zonal Management Authority to decide on the question of demolition of edible oil pipeline in Chennai

Supreme Court stated that the appellants may approach the relevant Coastal Zonal Management Authority within a period of one month as regards to laying down the pipelines was concerned which will be considered by any application made in regard to the continued use of the pipeline.

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Health and Healthcare

Supreme Court to examine scope of SHRC’s power to examine a medical negligence case dismissed by NHRC

NHRC had refused to interfere with the instant case of medical negligence, while SHRC issued certain directions. The High Court also did not find anything wrong with the directions of SHRC, hence, the petitioner approached the Supreme Court in the present matter.

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Insolvency and Bankruptcy

PF and gratuity dues not part of liquidation estate; cannot be recovered under Section 53 of IBC which provides for waterfall mechanism: Supreme Court

Supreme Court upheld the NCLT order that the provident fund, pension fund and gratuity fund are not part of the liquidation estate, for distribution under Section 53 of the IBC and the same has to be paid to the employees under the stated heads.

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Land and Property

Authorities cannot be punished for inaction in exercise of power within the prescribed period in the absence of statutory bar: Supreme Court

Supreme Court said that the Allahabad High Court committed a serious error in interpreting Rule 176(4) of Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952.

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Classification of ‘pushtaini’ and ‘gair-pushtaini’ landholders bad in law, creates dissonance between Land Acquisition Act’s object and effect: Supreme Court

The Supreme Court opined that even if such a classification had a rational nexus to the objective of the notification, the classification must also be legitimized by the parent statute.

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Effect of estoppel cannot be warded off by persons claiming through the one whose conduct generated such estoppel: Supreme Court

In a suit property where father executed a release deed for relinquishment of rights for valuable consideration, Supreme Court held that the effect of principle of estoppel cannot be warded off by appellants claiming through their father whose conduct generated this estoppel.

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Section 51 of the Transfer of Property Act applies on transferee who makes improvements in good faith on a property, believing himself to be its absolute owner: Supreme Court

Supreme Court upheld the Himachal Pradesh High Court’s order holding the respondent as the owner of the encroached land, as an encroacher cannot claim benefit of Section 51 of the Transfer of Property Act, 1882.

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Supreme Court sets aside Orissa HC order against Lokayukta’s direction to conduct preliminary inquiry against MLA; says Natural Justice principles not followed

Since the Odisha Lokayukta was not given any opportunity of being heard when the Division Bench of Orissa High Court set aside the inquiry order, the Supreme Court held the same as a manifest error in violation of the principles of natural justice.

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Money Laundering

Supreme Court grants bail to the accused for economic offences under PMLA on having served 50% of his sentence

The petitioner had contended that on account of his wife’s death, he was released on interim bail and had duly complied with all the conditions and had timely surrendered himself. The petitioner had also mentioned the fact that the two main accused in the case were enlarged on bail three years ago who were residents of Kanpur, Uttar Pradesh.

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Supreme Court dismissed Rana Ayyub’s challenge to Ghaziabad Special Court’s territorial jurisdiction in Money Laundering case

Explaining the scope of the territorial jurisdiction of Special Court under the Prevention of Money-laundering Act, 2002, the bench of V Ramasubramanian and JB Pardiwala, JJ also held that the trial of the scheduled offence should follow the trial of the offence of money-laundering and not vice versa.

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Practice and procedure

Period of suspension of legal proceedings is excludable in computing limitation period for enforcement of right under Section 22(5), SICA: Supreme Court

Supreme Court held that the period of suspension of legal proceedings is excludable in computing the period of limitation for the enforcement of such right in terms of Section 22(5), SICA. Further, the dismissal of the application under Section 9, IBC on the ground of ‘pre-existing dispute’ cannot be held to be patently illegal or perverse.

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Mere availability of an alternative remedy of appeal or revision would not oust High Court’s jurisdiction and render a writ petition “not maintainable”: Supreme Court

The Supreme Court observed that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law.

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Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act ,1870; Supreme Court reiterates

Supreme Court reiterated that in terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision must be read along with Section 149 of CPC.

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Service and Labour Matters

Revision of pay| VRS Employees or those who were terminated or dismissed cannot claim parity with those who retired on superannuation: SC

The Court was deciding the case where the ex-employees of Maharashtra State Financial Corporation had challenged decision denying the benefit of revision of pay scales, as recommended by the Fifth Pay Commission, to the employees who had retired or died during the period of 01.01.2006 to 29.03.2010.

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Ad-hoc judicial service does not count as ‘judicial service’ for elevation as a High Court judge: Supreme Court

Some members of the Andhra Pradesh State Judicial Service had claimed that the service rendered by them as District & Sessions Fast Track judges on Ad-hoc basis was not considered for elevation to the Bench of the Andhra Pradesh High Court.

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Classification of posts and determination of pay structure falls within Executive’s exclusive domain, Courts and Tribunals should not interfere; Supreme Court reiterates

“The wisdom and advisability of the Courts in the matters concerning the finance, are ordinarily not amenable to judicial review unless a gross case of arbitrariness or unfairness is established by the aggrieved party.”

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Can Scientist in NTRO be entitled to pensionary benefits, if she is relieved before completion of probation period? Supreme Court answers

Supreme Court held that the respondent could not have been given the pensionary benefits as Scientist -H in NTRO, as before her probation period was completed, she was relieved.

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ESI Act a social welfare legislation; Factories and establishments liable to pay ESI Contributions irrespective of the number of employees engaged at a time: Supreme Court

Supreme Court held that the Telangana High Court erred in setting aside the demand notice for the period after October 1989 and that the amended Section 1(6) was applied retrospectively. It was of the view that only in the case of demand notice for the period prior to inserting Section 1(6) of the ESI Act, it could be said that the same provision has been applied retrospectively.

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Supreme Court upholds NCLAT order on payment of dues to former employees of Jet Airways

Supreme Court refused to entertain a plea moved by the consortium and upheld the National Company Law Appellate Tribunal’s order directing the consortium to pay the provident fund and gratuity dues of the employees of Jet Airways

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‘Additional Special Road Tax not manifestly unjust’; Supreme Court upholds validity of Section 3A (3) of Himachal Pradesh Motor Vehicles Taxation Act, 1972

The State of Himachal Pradesh had appealed against the High Court’s decision which held Section 3A (3) of Himachal Pradesh Motor Vehicles Taxation Act, 1972 as ultra vires of the powers conferred upon the State Government under the Constitution of India. The Supreme Court set aside the said judgment of Himachal Pradesh High Court upholding the validity of Section 3A (3) and related notifications.

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Know Thy Judges

Justice Surya Kant

Born on 10-02-1962 in Hisar, Justice Surya Kant, has the distinction to be appointed as the youngest Advocate General of Haryana. Before being elevated as a Supreme Court Judge, Justice Surya Kant served as a Judge in the Punjab and Haryana High Court and as Chief Justice of Himanchal Pradesh High Court.

Justice Dipankar Datta

Justice Dipankar Datta, was born on 09-02-1965 in a Bengali family. He served as a Judge in the Calcutta High Court, and as a Chief Justice of the Bombay High Court, then he was sworn in as Supreme Court Judge by Chief Justice Dr D.Y. Chandrachud on 12-12-2022.

Read more…

Cases Reported in SCC Weekly

2023 SCC Vol. 1 Part 4

2023 SCC Vol. 2 Part 1

2023 SCC Vol. 2 Part 2

2023 SCC Vol. 2 Part 3

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