Supreme Court April 2023| Marriage Equality, Unstamped Arbitration Agreements, Sealed Covers, Justice Gangopadhyay, Daughter’s Inheritance rights, and more

April was not the regular, run-of-the-mill month for the Supreme Court of India as it not only delivered some big judgments and began hearing the momentous Marriage Equality matter but also dealt with some unusual cases like Mr Put Mine, Advocate’s appearance, Justice Gangopadhyay controversy; and case of the Judge who lost job over unprepared judgments. This Roundup covers all of that and more!

supreme court april 2023

“The press has a duty to speak truth to power, and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy.”

Dr Justice DY Chandrachud, The Chief Justice of India,

Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366

Constitution Bench hearings

WhatsApp v Right to Privacy: New Data Protection Bill ready to be tabled in Monsoon Parliament Session, informs Centre; Supreme Court defers hearing

The issue before the Supreme Court pertains to the question whether WhatsApp’s privacy policy which was introduced in January 2021 is in violation of right to privacy under Article 21 of the Constitution of India.

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The momentous hearing on Marriage Equality Hearing

Petitioner contended that they were entitled to the Fundamental Right to marry which was entrenched in the Constitution which includes the choice of a marital partner. Neither the State nor Society could intrude into the domain of individual right to pursue a way of life which were central to their identity and autonomy.

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Also Read

Supreme Court Constitution/5-Judge Bench Roundup | The momentous same-sex marriage hearing dominates the month of April 2023; Big ruling on unstamped arbitration agreement

5-Judge Bench Verdict on Unstamped Arbitration Agreement

Unstamped Arbitration Agreements are not valid in law: Majority

The Supreme Court in 3:2 majority approved paragraph 22 and 29 of Garware Wall Ropes case, and to this extent also approved Vidya Drolia case.

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We Dissent! Here’s why 2 out of 5 Judges of Supreme Court ruled unstamped arbitration agreements are valid in law

The practice of dissent in judicial decision-making process plays a critical role in revealing constitutional commitment to deliberative democracy. Allowing judges to express differing views and engage in a dialogue about the law and its interpretation can potentially lead to a more nuanced and refined understanding of the law, as the Court grapples with competing interpretations and seeks to reconcile them in a principled manner.

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Sealed Covers violate natural and open justice

The Why-What-How of ‘Public Interest Immunity proceedings’, the ‘fairer’ alternative suggested by Supreme Court

Observing that the sealed cover procedure violates both principles of natural justice and open justice, the Supreme Court has held that the public interest immunity proceeding is a less restrictive means to deal with non-disclosure on the grounds of public interest and confidentiality.

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Press Freedom

‘Denying security clearance to a Media Channel for critical views has ‘chilling effect’ on Press Freedom’: Breakdown of Supreme Court’s Media One Verdict

The Supreme Court held that the critical views of the Media One News Channel on Government policies cannot be termed ‘anti-establishment’ as the use of such a terminology in itself, represents an expectation that the press must support the establishment.

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Bilkis Bano – Premature release of Convicts case

Supreme Courts asks Centre and Gujarat Government to produce files and give reasons for releasing 11 convicts

The Supreme Court asked the Gujarat Government reasons behind its decision to grant remission to the 11 life convicts, who were convicted for raping Bilkis Bano and murdering her family members

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Justice Abhijit Gangopadhyay versus Supreme Court

West Bengal Teachers’ Recruitment Scam| Justice Abhijit Gangopadhyay versus Supreme Court: Explained

In an interview with ABP Ananda, Justice Gangopadhyay had made remarks against TMC leader Abhishek Banerjee in relation to the West Bengal Teachers Recruitment Scam case, which was pending before him.

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The Mysterious ‘Mr Put Mine, Advocate’

“Mr Put Mine, Advocate” matter closed as Supreme Court accepts apology

Recently, in a matter one of the advocates of the petitioner was recorded as “Mr. Put Mine, Advocate”. Taking note of the mistake that caused lot of embarrassment to the Court as the same was widely circulated on WhatsApp and other social media, the Court initiated proceedings suo moto.

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Pronouncing unprepared judgments is gross negligence and callousness of Judicial Officer; SC upholds Civil Judge’s dismissal

The Supreme Court upheld the penalty of dismissal of Civil Judge and said that providing an unprepared judgment, fait accompli, is completely unacceptable and unbecoming of a Judicial Officer.

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Menstrual Hygiene

Supreme Court directs States and UTs to send their Menstrual Hygiene Management Policy to Centre

The Supreme Court viewed that it would be appropriate if the Union Government engages with all the State governments and Union Territories to ensure that a uniform national policy is formulated with sufficient leeway for the States and UTs to make adjustments, based on the prevailing conditions in their territories.

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Daughters’ Inheritance rights

Supreme Court’s verdict on daughter’s right to inherit ancestral property before Hindu Succession Act 2005 Amendment and validity of settlement deed, explained

Since the daughter had not signed the alleged settlement deed, the Supreme Court clarified that “In a suit for partition of joint property, a decree by consent amongst some of the parties cannot be maintained”.

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Advocates and Advocacy

[Enrolment fees] Supreme Court issues notices to Union Government, Bar Council of India and State Bar Councils

Supreme Court will be examining the validity of exorbitant enrolment fees charged by State Bar Councils

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‘Lawyers cannot go on strikes’; Supreme Court asks High Courts to constitute Grievance Redressal Committee to hear genuine grievance

Criticising the practice of the advocates going on strike and abstaining them from work, the Court observed that it is appropriate that their genuine grievances are considered by some forum so that such strikes can be avoided.

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Arbitration and Conciliation

Explained| Supreme Court verdict on scope of Pre-referral jurisdiction of High Court under S. 11 of Arbitration and Conciliation Act

The limited scope of judicial scrutiny at the pre-referral stage is navigated through the test of a ‘prima facie review’

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Contract and Specific Relief

Unregistered agreement to sell an admissible evidence in a suit for specific performance; Supreme Court upholds Madras High Court Judgment

Supreme Court said that as per proviso to Section 49 of the Registration Act, 1908 an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument, subject to Section 17(1A) of the Registration Act.

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Consumer Protection

Consumer Forums cannot award Compound Interest as Compensation under Consumer Protection Act, 1986 in Real Estate Disputes

The Court observed that for determination of compensation, the Consumer Forum must examine the time value for money, an in-depth analysis of all the facts and materials surrounding factors, including uncertainties of market are to be considered.

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“Corruption must be dealt with iron hands”; SC sets aside Gujarat HC order granting anticipatory bail to IRS officer Santosh Karnani

When there is prima facie satisfaction that there is something more than a mere needle of suspicion against the accused, the Court cannot jeopardise the investigation, more so when the allegations are grave in nature.

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High Profile Cases

Supreme Court affirms Gauhati HC’s reversal of Assam MLA Akhil Gogoi’s discharge in anti-CAA protest case but grants bail

The Supreme Court observed that this was not a case where Akhil Gogoi should be allowed to be detained in custody, especially after having secured an order of discharge, rightly or wrongly.

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Supreme Court issues notice to Delhi Government and Police over Anurag thakur and Parvesh Verma hate speeches during anti CAA protests

The Bench said that the reasoning of the Lower Courts that sanction under Section 196 of CrPC was required from the Union Government might not be correct.

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Supreme Court sets aside Rajasthan High Court Judgment directing summoning and recording of evidence of IPS Ajay Pal Lamba

The Supreme Court said that the power to take additional evidence in an appeal is to be exercised to prevent injustice and failure of justice, and thus, it must be exercised for good and valid reasons necessitating the acceptance of the prayer.

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Supreme Court quashes forgery, cheating case against late Prakash Singh Badal and son Sukhbir

The Supreme Court’s decision shall not affect the pending proceedings before the High Court of Delhi against the order of the ECI as the Court did not express anything on the Constitution of the Shiromani Akali Dal

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SC sets aside Bombay HC order acquitting Prof GN Saibaba and others in UAPA Case

The Court directed to remit the matter back for fresh disposal before another bench of the High Court.

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SC orders transfer of all FIRs against Munawar Faruqui to Indore; makes previous interim bail order ‘absolute’

The Supreme Court gave huge relief to Comedian Munawar Faruqui, by clubbing all FIRs and complaints registered against him at various places.

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Criminal Investigation, Trial and Justice

Woman’s unnatural death in matrimonial home, within 7 years of marriage, not sufficient to convict husband/in-laws for dowry death

The Supreme court observed that for woman’s death to be considered dowry death under Section 304B and 498A IPC, the cruelty or harassment has to be soon before the death.

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28 years later, Supreme Court sets aside death penalty of man, after finding him juvenile during the commission of multiple murders

Supreme Court said that the degree or dimension of the offence should not be the direct approach of the Court in its inquiry into juvenility of an accused or convict.

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‘Possible that the entire story was a complete set-up by police’ ; Supreme Court sets aside conviction in rioting, criminal trespass and murder case

The Supreme Court doubted the prosecution’s story due to various lacunas existing in it, the manner in which the investigation was conducted and the material inconsistency in the statements of the eyewitnesses.

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Supreme Court | 74-year-old lawyer gets bail in abetment of suicide case

In the case at hand, a man had shot himself dead following a monetary dispute with the 74-year-old Advocate’s sone and two others.

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Supreme Court sets aside Punjab and Haryana HC’s reduction of sentence in rash and negligent driving case

Supreme Court said that the High Court did not properly consider the instant case of rash and negligent driving, and that the principle aim and object of IPC is to punish offenders.

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Minor Rape Case | Supreme Court extends anticipatory bail granted to POCSO accused

The Patna High Court had rejected the petitioner’s anticipatory bail in this matter, while the Supreme Court granted protection to the petitioner against arrest on 16-12-2022.

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“Undue leniency in sentencing shakes public confidence in Criminal Justice System”: Supreme Court modifies sentence in minor’s rape-murder case

Supreme Court considered the case wherein the Trial Court proposed award of death sentence for rarest of the rare case, while the Jharkhand High Court modified it to life imprisonment for whole biological life without any scope for remission.

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Suggestions to witness by defence and reply to the same forms part of evidence to determine guilt of accused; SC upholds conviction in murder case

Supreme Court was quick to clarify that if prosecution was unable to prove its case on its own legs, then it won’t be able to derive advantage from the weakness of the defence and the Court would not be able to convict the accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness.

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Reformative element requires equal attention before imposing fixed term sentence without remission

The Supreme Court stated that it was imperative to conduct evaluation of mitigating circumstances at the trial stage, in order ‘to avoid slipping into a retributive response to the brutality of the crime’.

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Further Investigation permissible even after the final report laid before the Magistrate has been accepted

The Supreme Court made clear that further investigation cannot be put at par with prosecution and punishment and hence, the principle of double jeopardy would not apply.

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‘Transfer of trial to another State will cause serious impediment’; Supreme Court refuses to transfer murder case trial outside State of West Bengal

Supreme Court commented on the patent illegalities and the pro-active exercise of multiple jurisdictions in the instant case.

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Constitutional Courts can exercise power of imposing a modified or fixed-term sentence even where capital punishment is not imposed or proposed

To identify whether the case of an accused under S. 302, IPC falls in the category of ‘rarest of the rare’ case, for the purpose of modification of sentence, it is no consideration by itself that the accused is a first-time offender and has no antecedents.

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Right to default bail under S. 167(2) CrPC cannot be denied by filing chargesheet without completing investigation

The right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right flowing from Article 21 of the Constitution of India, observed the Supreme Court.

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Food Adulteration

Written warranty from manufacturer can protect Vendor from criminal liability under Food Adulteration Act: SC

Section 19(2)(a)(ii) of the Prevention of Food Adulteration Act, 1954 provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article of food from any manufacturer with a written warranty.

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Narcotics and Drugs

No person accused of trading commercial quantity of narcotics is liable to be released on bail unless Court is satisfied of reasonable grounds proving innocence

A regular offender, mastermind, kingpin of “ganja” trade cannot be granted bail if prima facie guilt is established and is likely to commit the same offence when enlarged on bail.

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Supreme Court issues notice to Intelligence Officer for non-compliance of Section 50 of the NDPS Act

The petitioner relied upon S.K. Raju v. State of West Bengal, (2018) 9 SCC 708 which had observed that wherever the search of a person takes place, the requirement of mandatory compliance of Section 50 of NDPS was attracted, irrespective of whether the contraband was recovered from the body of the person or not.

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Electricity/Power Generation

Supreme Court castigates APTEL for virtually rubber stamping State Commission’s findings on coercion vis-à-vis Power Purchase Agreement

Supreme court was of the opinion that the “casual approach of APTEL, in not reasoning how such findings could be rendered, cannot be countenanced. As a judicial tribunal, dealing with contracts and bargains, which are entered into by parties with equal bargaining power, APTEL is not expected to casually render findings of coercion, or fraud, without proper pleadings or proof, or without probing into evidence.”

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Adani power entitled to Change in Law for 100% of contracted capacity which is 70% of installed capacity of Phase IV extension of Mundra Project

The Supreme Court opined that it is unjust on the part of Haryana Utilities to say that 70% of the installed capacity should be further bifurcated and the Change in Law benefit should be restricted only to 70% of the installed capacity.

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Supreme Court explains what qualifies as ‘Change in Law’; directs DISCOMS to compensate Power Generators for all additional charges levied by State instrumentalities

Supreme Court has requested the Union of India along with Ministry of Power to evolve a mechanism so as to ensure timely payment by the DISCOMS to the Generating Companies, which would avoid huge carrying cost to be passed over to the end consumers.

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‘Specificity in show-cause notice required for imposing fine’; Supreme Court quashes MP High Court’s order maintaining 3 years’ debarment of transformer manufacturer

Supreme Court observed that the High Court had the opportunity to correct the obvious errors in its order, since one part of the matter was not even considered, and the other part also lacked requisite attention to contentions.

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Environment Protection

SC finds directions prescribing uniform one km Eco- Sensitive Zones around forests, Sanctuaries ‘impossible to implement’; modifies order

The Supreme Court said that if the directions are continued, rather than avoiding man-animal conflict, it will intensify the same.

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Insolvency and Bankruptcy Code

‘No inconsistency between Regulation 30A of IBBI Regulations and Section 12A of IBC’; Supreme Court sets aside NCLT order

Supreme Court clarified that the substituted Regulation 30A of IBBI Regulations clearly provided for withdrawal applications being entertained before constitution of Committee of Creditors.

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Land Acquisition

Odisha’s 6000 families to get their land back as SC quashes acquisition of 6000 acres of agricultural land for Anil Agarwal Foundation’s Vedanta University project

The Supreme Court observed that the entire acquisition proceedings and the benefits, which were proposed by the State Government to Anil Agarwal Foundation for setting up Vedanta University were vitiated by favourism and violative of Article 14 of the Constitution of India.

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Rent Control

Whether stamp duty payable on sale deed to be calculated as per prevailing market value of property on execution date? Supreme Court answers

“Stamp Act in its application to Uttar Pradesh has been amended by the UP (Stamp Amendment Act 1952) and Article 23 of Schedule IB as applicable to UP.”

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Service Law

Courts cannot prescribe qualification or declare equivalency of a course, unless the rule itself prescribes equivalency

Supreme Court said that the denial of promotion was on the ground that candidates do not possess the prescribed requisite qualification namely “Diploma in Civil Engineering”, and not because they possess a two-year diploma not three-year diploma.

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Whether Government employee entitled to annual increment, earned one day prior to retirement?; Supreme Court answers

Supreme Court held that, “the entitlement to receive increment therefore crystallises when the government servant completes requisite length of service with good conduct and becomes payable on the succeeding day.”

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‘Pension cannot be denied dehors the authority of law’; SC sets aside BSF Commandant’s conviction, allows him to retain superannuation benefits

The Court said that the search of the Commandant’s house did not result in recovery of any incriminating documents/article and without other materials incriminating the appellant or pointing to his guilt, the statement of a single person alone cannot result in conviction of the Commandant and deprive him of his pension benefits.

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‘Candidates cannot taint Selection Process with mala fides on being unsuccessful’; Supreme Court sets aside J&K HC verdict quashing appointment of 64 Drug Inspectors

The Supreme Court observed that having participated in the selection process without any demur or protest, the writ petitioners cannot challenge the same as being tainted with mala fides, merely because they were unsuccessful.

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Supreme Court stays arbitrary termination of 269 Assistant Teachers appointed by West Bengal Board of Primary Education

It was alleged that the Calcutta High Court had arbitrarily cancelled the appointment of petitioners who were appointed as Assistant Teachers of Government aided primary school in the year 2017-2018.

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Can Government employees claim Double Overtime Allowance as per the Factories Act? Supreme Court answers

The Court stated that the “claim of the respondents ought to have been tested by the Tribunal and the High Court in the proper perspective to see whether it is an attempt to get the best of both the worlds.”

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Social Welfare

Community Certificate cannot be declared fake without hearing the certificate holder: Supreme Court

In the case at hand, as the right to be heard was denied to the community certificate holder, the burden of proof to disprove the nature of the certificate, had not been discharged. Hence, the Supreme Court presumed the community certificate to be genuine.

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Register all migrants on eShram portal for Ration Card within 3 months: Supreme Court

“Without the ration card a migrant/unorganized labourer or his family members may be deprived of the benefit of the schemes and may be the benefit under the National Food Security Act”, the Supreme Court observed.

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SC’s direction to Uttarakhand Public Service Commission to provide scribe helps Judicial Service aspirant with writer’s cramp in appearing Preliminary Examination

The Court noted that the All-India Institute of Medical Sciences had issued a certificate to the petitioner indicating that he is suffering with writers’ cramp.

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Amended Section 153C of the Income Tax Act, 1961 applicable retrospectively to searches conducted prior to 2015 Amendment

The amendment in Section 153-C of the Income Tax, 1961 was brought and the words “belongs or belong to” were substituted by the words “pertains or pertain to” after a ruling by Delhi High Court in Pepsico India Holdings Private Limited v. ACIT, 2014 SCC OnLine Del 4155

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Imported LCD panels classifiable under chapter 90, entry 9013.8010 of Customs Tariff Act

“It is necessary to refer to ‘general rules of interpretation’ of first schedule of Customs Tariff Act, 1975 for the purpose of relevant classification of the goods under CTA.

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No penalty leviable under Section 271-C of Income Tax Act on mere belated remittance of TDS by assessee

The Supreme Court observed that the consequences on nonpayment or belated remittance of the TDS would be under Section 201(1A) and Section 276-B of Income Tax Act, 1961.

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CIT can revise erroneous order by Assessing Officer causing prejudice to revenue; Supreme Court overrules it’s 2000 verdict

The Supreme Court stated that the erroneous assessment order had resulted in loss of the Revenue in the form of tax. Thus, the High Court had committed a very serious error in setting aside the order passed by the Commissioner passed in exercise of powers under Section 263 of the Income Tax Act.

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Assessee not entitled to deduction u/s 80-IB of Income Tax Act on Duty drawback / DEPB Schemes profit

The Supreme Court affirmed the order passed by the High Court stating that the respondent assessee was neither entitled to the deductions nor profit earned under Section 80-IB on the amount of DEPB as well as Duty Drawback Scheme.

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Reopening of completed assessments if Income Tax searches unearth ‘incriminating material’: Supreme Court resolves conundrum

The Revenue had submitted that the Assessing Officer is competent to consider all the material that is available on record, including that found during the search, and make an assessment of ‘total income’. While some of the High Courts agreed with the said proposition, some disagreed. The Supreme Court was, hence, called upon to resolve the conundrum.

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Mens rea not an essential ingredient for contravention of S. 45, Gujarat Sales Tax Act, 1969

“The intention of the legislature is very clear and unambiguous that the moment any eventuality as mentioned in Section 45(5) occurs, the penalty shall be leviable as mentioned in sub-section (6) of Section 45 of the Gujarat Sales tax Act, 1969”, the Supreme Court observed.

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Noida’s Grand Venice Mall not a tourist destination; not entitled to freehold rights and tax exemption

The Supreme Court rejected petitioner company’s claim based on a policy of 2013 amended in 2016 for subject land whose completion certificate was already issued in 2015 since it turns out to be hollow due to its non-applicability on the subject land or the petitioner’s project.

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High Courts not precluded from scrutinizing ITAT’s determination of Arm’s Length Price vis-à-vis Transfer Pricing

The Supreme Court asserted that it was always open for the High Court to consider and examine whether the Arm’s Length Price had been determined while taking into consideration the relevant guidelines under the Act and the Rules.

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Supreme Court deprecates condition of deposit for bail in offences u/s 132 GST Act

The Supreme Court said that onerous condition requiring deposit of Rs. 2 crores cannot be imposed for bail.

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Guiding Principles for the Courts

Explained| Supreme Court judgment on application of principle of Res Judicata and other CPC provisions

The Supreme Court said that before examining the defendants’ ground of res judicata to oppose the eviction petition, several aspects may have to be looked into, like whether such an issue was substantively at issue in the previous suit and similar such other questions may crop up.

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SC directs all Courts and Tribunals to number paragraphs in Orders and Judgments in seriatim

The Court gave directions for Judgment writing to all the Courts and Tribunals, in a case where the impugned Judgment before the Court was a certified copy obtained from the Ounjab and Haryana High Court; however, it was not numbered paragraph-wise.

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Non-impleading of all legal representatives won’t abate the suit if the estate of the deceased is substantially represented by other defendants

Placing its reliance on Bhurey Khan v Yaseen Khan 1995 Supp (3) SCC 331, the Bench stated that the suit will not abate for the reason of non-substitution of all legal representatives of the deceased if the suit was substantially represented.

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E-filing in DRTs, DRATs | Supreme Court balances adoption of technology and access to justice; asks Centre to set up e-sewa kendras; seek Bar Association suggestions

CJI led bench observed that “Technology is an enabler and a facilitator. Hence, no segment of the citizens should be left behind in the adoption of technology, least of all, in terms of access to justice.”

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High Courts have very limited jurisdiction at the stage of discharge or while exercising its powers under S.482 CrPC

The Supreme Court held that Punjab & Haryana High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under Section 482 CrPC. and/or in exercise of the powers under Article 226 of the Constitution

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‘Specificity in show-cause notice required for imposing fine’; Supreme Court quashes MP High Court’s order maintaining 3 years’ debarment of transformer manufacturer

Supreme Court observed that the High Court had the opportunity to correct the obvious errors in its order, since one part of the matter was not even considered, and the other part also lacked requisite attention to contentions.

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SCC Weekly

2023 SCC Vol. 3 Part 4

2023 SCC Vol. 3 Part 5

2023 SCC Vol. 4 Part 1

Know Thy Judge

Justice Aniruddha Bose

Justice Rajesh Bindal

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