Constitutional Law Judgments

This article is a roundup of all the landmark constitutional law judgments delivered by the Supreme Court of India from January to April 2023 inclusive of all that showcased consideration, interpretation, and evolution of important constitutional law principles. The judgments are as follows:

(1) Vivek Narayan Sharma v. Union of India1

(Delivered on 2-1-2023)

Coram: 5-Judge Bench of Justices S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna

Majority judgment by —Justice B.R. Gavai

Dissenting opinion by —Justice B.V. Nagarathna

Reference to the Constitution Bench arose in the context of writ petitions filed challenging Notification dated 8-11-2016 issued by Central Government under Section 26(2) of the Reserve Bank of India Act, 1934, through which act/policy of demonetisation was introduced. Vide this policy, the Central Government declared that bank notes of denomination of existing series of value of Rs 500 and Rs 1000 shall cease to be legal tender w.e.f. 9-11-2016. Six questions were considered as the issues to be answered by the Constitutional Bench, which were as follows:

98.1. (i) Whether the power available to the Central Government under sub-section (2) of Section 26 of the RBI Act can be restricted to mean that it can be exercised only for “one” or “some” series of banknotes and not “all” series in view of the word “any” appearing before the word “series” in the said sub-section, specifically so, when on earlier two occasions, the demonetisation exercise was done through the plenary legislations?

98.2. (ii) In the event it is held that the power under sub-section (2) of Section 26 of the RBI Act is construed to mean that it can be exercised in respect of “all” series of bank notes, whether the power vested with the Central Government under the said sub-section would amount to conferring excessive delegation and as such, liable to be struck down?

98.3. (iii) As to whether the impugned Notification dated 8-11-2016 is liable to be struck down on the ground that the decision-making process is flawed in law?

98.4. (iv) As to whether the impugned Notification dated 8-11-2016 is liable to be struck down applying the test of proportionality?

98.5. (v) As to whether the period provided for exchange of notes vide the impugned Notification dated 8-11-2016 can be said to be unreasonable?

98.6. (vi) As to whether the RBI has an independent power under sub-section (2) of Section 4 of the 2017 Act in isolation of provisions of Sections 3 and 4(1) thereof to accept the demonetised notes beyond the period specified in notifications issued under sub-section (1) of Section 4?

On the first issue, referring to the judgments of Chief Inspector of Mines v. Lala Karam Chand Thapar2 and Tej Kiran Jain v. N. Sanjiva Reddy3, it was held that word “any”/“anything” is the widest import and equivalent to “everything”. It is of wide amplitude and the word “any” dictionarily means “one” or “some” or “all”. It has a diversity of meanings that may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject-matter of the statute. Applying the principle of purposive interpretation, it was held that Section 26(2) of the RBI Act, would confer power on the competent authority to restrict the usage of banknotes of all the denominations, and cannot be restricted to only one series or set of denominations. Central Government can direct for restriction or elimination of all the series of bank notes.

On the second issue, it was held that the Section 26(2) cannot be treated as conferring excessive unguided powers and thus not liable to be struck down. Referring to the judgment of Harakchand Ratanchand Banthia v. Union of India4, to hold that if there are inbuilt safeguards to the exercise of power to be exercised by senior officers; if there are statutory checks hatched in at the time of exercise of power and it is responsibly conferred on publicly elected representatives, then it cannot be treated as unguided and uncanalised. Referring to the Constitution Bench judgment in MCD v. Birla Cotton, Spg. and Wvg. Mills5, it was held that if there is an adequate guide or policy spelt out in the enactment and that the power is to be exercised towards the said objective, then sufficient guidance is available to the statutory authority exercising powers. In cases of economic legislation or powers relatable to fiscal decisions, much more latitude must be offered to the executive and the delegatee of the power. Accordingly, it was held that power conferred by Section 26(2) is not unguided, uncanalised, more so when it is conferred on the RBI which is statutorily vested with the power for the management of currency of the whole country. The Central Government acts on the recommendations of RBI and not any other ordinary executive authority whilst exercising powers under Section 26(2) of ordering demonetisation and thus it cannot be treated as being excessively exercised or a piece of excessive delegation for a defective decision-making process, Court referring to Section 26 held that scope of judicial review in matters of economic policy is extremely restricted. Referring to the judgment of Prag Ice & Oil Mills v. Union of India6, R.K. Garg v. Union of India7, it was held that courts in the exercise of powers of judicial review ordinarily do not interfere with policy decisions unless such policy can be assailed on the grounds of mala fide, arbitrariness, unfairness, etc. The Court referred to detailed deliberations, documentations and correspondences between the Central Board of Directors of the RBI and the Central Cabinet, wherein the necessity of curbing the menace of fake currency was emphasised upon and its unchecked circulation in the Indian economy.

On the fourth issue, Court held that the meeting of RBI had the requisite quorum, followed by recommendations to the Central Government. The Central Government and RBI were in active consideration of the matter for at least a period of 6 months, and both cannot be expected to act in two isolated boxes. Interpreting and explaining the meaning of the term “recommend”, by relying upon the judgments of V.M. Kurian v. State of Kerala8 and Manohar v. State of Maharashtra9, it was held that it is a statement expressing commendation or a message of this nature. The enquiry would be limited in such matters to whether there was an effective consultation between the Central Government and the Central Board before the decision was taken and whether they made their respective points of view known to each other, discussed and examine the relative merits of their views prior to taking of such a decision by the Central Government. After perusing the records, the Court held that RBI and the Central Government were in consultation with each other, and that relevant factors supported by material were shared between both and thus it cannot be said that the procedure of consultation was not followed prior to issuance of the demonetisation notification.

On the fifth issue, Court held that the decision-making on the issue was to be affected and carried out with utmost confidentiality and speed. If the news of such a measure is leaked out, it is difficult to imagine how disastrous the consequences would be and thus on spot overnight decisions taken by the Central Government cannot be doubted or shot down as hasty in nature. Confidentiality and secrecy in such sorts of measures is of paramount importance and such secrecy and confidentiality cannot lead to notification being rendered unsustainable.

Court also examined and applied all the tests of proportionality to the decision taken by the Central Government to come to the conclusion that notification in exercise of executive power cannot be treated as disproportionate to the cost which it was designed to serve. Accordingly, the reference was answered by the majority.

Dissenting opinion

Justice B.V. Nagarathna delivered a dissenting opinion regarding the exercise of demonetisation by the Central Government under Section 26(2) of the Reserve Bank of India Act.

On the first issue, while relying on Nazir Ahmad v. King Emperor10, the principle of “to do a thing in a particular way or not at all”, the lady Judge observed that the correct procedure for recommending demonetisation under Section 26(2) of the Reserve Bank of India Act, 1934 (for short “RBI Act”) is that firstly, a proposal for demonetisation should be initiated by the Central Board of the Reserve Bank. The Central Government may then accept this recommendation and only thereafter issue a notification in the Gazette in this regard or reject the same.

However, this does not take away the power of the Central Government to initiate the process of demonetisation. The Central Government can exercise this power, however, only by enacting a plenary legislation or law in this regard and not under Section 26(2) of the RBI Act. It was observed that a matter as critical as demonetisation cannot be carried out by way of issuance of an executive notification and a meaningful discussion and debate in Parliament on the proposed measure, would have lent legitimacy to the exercise.

On the second issue, it was held that the power under sub-section (2) of Section 26 is vested with the Reserve Bank and not the Central Government. Referring to Kanai Lal Sur v. Paramnidhi Sadhukhan11 and Illachi Devi v. Jain Society12, held that the plain meaning of the word “any” series of banknotes of “any denomination” would not imply “all” series of banknotes of “all denominations”. The reliance was placed on the principle that when the words of a statue are clear, plain and unambiguous, no question of construction of a statue arises and the Court is bound to give effect to the plain meaning of the statute and in this case, a plain reading of Section 26(2) suffers from no ambiguity as “any” means “specified or particular” and not “all”. Extending the power to recommend the demonetisation of “all” series or “all” denominations of banknotes to the Central Board would be arbitrary and unconstitutional as it amounts to excessive delegation and vesting of powers with the Reserve Bank. In that backdrop, therefore the question of vesting powers to the Central Government under this section does not arise at all.

On the third issue, it was observed that the impugned Notification dated 8-11-2016 was issued under sub-section (2) of Section 26 by the Central Government without any independent opinion of the RBI’s Central Board to it. Thus, in terms of Section 26(2), the Central Government failed to exercise discretion in the matter properly as statutorily prescribed. The impugned notification, the subsequent Ordinance of 2016 and the Act of 2017 incorporating the terms of the impugned notification were resultantly declared unlawful in the minority opinion.

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(2) Assn. of Old Settlers of Sikkim v. Union of India13

(Delivered on 13-1-2023)

Coram: 2-Judge Bench of Justices M.R. Shah and B.V. Nagarathna

Authored by: Justice M.R. Shah

The petitioners challenged the constitutionality of Section 10(26-AAA) of the Income-Tax Act, 1961, particularly the definition of “Sikkimese” under Section 10(26-AAA) to the extent it excludes Indians who were settled in Sikkim prior to merger of Sikkim with India on 26-4-1975. Challenge was also laid to proviso to Section 10(26-AAA) of the Act of 1961, which excluded any Sikkimese women marrying non-Sikkimese/Indian after 1-4-2008. The challenge was laid primarily on the ground that exemption is not available to Indian settlers resulting in indiscrimination amongst the residents of Sikkim alone who formed homogeneous class. The Court traced the geographical history of the State of Sikkim prior to its merger with India on 26-4-1975, which was existing as an independent kingdom for around 333 years prior to merger. Sikkim by way of the Constitution’s 36th Amendment Act, 1975 was made a full-fledged State in India, being included in Entry 22 of Schedule 1 to the Constitution of India. A notification was accordingly issued on 21-7-1975 where under everybody settled in Sikkim as on or before the cut-off date were deemed to be Indian citizens, facing the distinction between original Sikkimese and those who took up Sikkimese citizenship. The Court analysed certain facts and statistics vis. the total 95% of the population of Sikkim getting the benefit of Section 10(26-AAA) of the Income-Tax Act with only 5% left out from such exemption. Out of this 5%, only 1% are persons like old Indian settlers who have settled in Sikkim prior to its merger with India in April 1975. There is no distinction between those Sikkim subjects whose names are recorded in the register maintained under the Sikkim Subjects Regulation, 1961 and those Indians who have settled in Sikkim prior to the merger of Sikkim but not recorded in the register. Merely because Indian citizenship was not surrendered at the time when the 1961 register was being prepared, cannot be a ground to deny exemption to all the old settlers, who did not leave Indian citizenship. The exclusion of old Indian settlers fails to have any nexus with the object and purpose of Section 10, which is to grant the benefit of exemption from payment of income tax to residents of Sikkim. Further, even the exclusion is not justified only for old Sikkimese based on the cut-off date of April 1975, because the cut-off date also fails to have any rational linkage with denial or grant of exemption on the said basis. Referring to the judgments of D.S. Nakara v. Union of India14 and State of Rajasthan v. Rao Manohar Singhji15, it was held that such a denial only to old settlers prior to 1975 amounts to arbitrariness premised on arbitrarily determined cut-off date being thus violative of Article 14 of Constitution of India. On the similar ground, denial of exemption to women marrying Indians or non-Sikkimese after 1-4-2008 fails to provide any justification for such denial, more so also lacks any rational nexus with the cut-off date of April 2008. The proviso also was struck down for being inherently arbitrary and discriminatory towards women, with the writ petitions being allowed.

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(3) Ashwini Kumar Upadhyay v. Union of India16

(Delivered on 27-2-2023)

Coram: 2-Judge Bench of Justices K.M. Joseph and B.V. Nagarathna

Authored by: Justice K.M. Joseph

The writ petition under Article 32 of the Constitution of India was filed seeking a direction to the Central Government for constituting “renaming Commission” for finding out the original names of ancient, historical, cultural, and religious places and thereafter to rename them, instead of continuing their nomenclature under the barbaric foreign invaders and Mughal emperors. Referring to the judgment of Kesavananda Bharati v. State of Kerala17, and S.R. Bommai v. Union of India18, Court stated that secularism under the Constitution implies the attitude of the State towards religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. Explaining secularism as more than passive attitude of religious tolerance, it is stated to be a positive concept of equal treatment of all religions, one of benevolent neutrality. Accordingly, the reliefs that were sought for of renaming of ancient historical places from the one named under the title of barbaric invaders and Muslim rulers was dismissed.

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(4) Anushka Rengunthwar v. Union of India19

(Delivered on 3-2-2023)

Coram: 2-Judge Bench of Justices A.S. Bopanna and C.T. Ravikumar

The petitioners were Overseas Citizens of India Card Holders (for short OCI card holders), who were aspiring to become doctors by pursuing an MBBS course after securing admission through the NEET selection process and thereafter postgraduation (PG) as also further advanced courses in the field of medicine. Earlier, they were eligible to take all the examinations in India for pursuing medical courses in various medical colleges of the country. However, in March 2021, by issuance of notification, the existing right for appearing in the NEET examination for OCI candidates was taken away, being made ineligible to seek admission against any seat reserved for Indian citizens. The said notification was challenged on multiple grounds at the instance of OCI card holders. Relying on the judgment of Navtej Singh Johar v. Union of India20, it was argued that such impugned notification falls foul on the “doctrine of non-retrogression” holding that rights should never be shrinked or contracted, but always be expanded. Court after analysing the notifications occupying the field form the day the petitioners were eligible to participate held that impugn notification restricts the eligibility of OCI card holders for admissions only against the NRI category seats or any such supernumerary seat, but not to other open general category seats. Court however declined the argument that in a progressive and ever-improving society, there is no place for retreat and that society should always march ahead. Relying on the judgment of Universal Imports Agency v. Chief Controller of Imports and Exports21 and Navjyoti Coop. Group Housing Society v. Union of India22, it was further held that whenever any new policy decision is taken, the same should not be taken unilaterally, but only after inviting objections and considering the claim of stakeholders, especially who shall become ineligible or thrown out of the fray from participating in any selection, recruitment, or appointment process. “Legitimate expectation” should not be defeated without any overriding public interest or reason for justifying so denial of some benefit or advantage which a person has been enjoying in the past should not be without any reasons and sufficient opportunity to comment on such reasons. All the petitioners had umbilical connection with the country and had positioned and prepared themselves in a manner as to pursue medical education in India. A statutory right conferred upon them earlier had sown the seed of hope recognising the affiliation to India and thus, it cannot simply be contented that statutory right conferred earlier has been taken away. The denial or modification of such right bestowed earlier should be made with prospective effect and not made retroactively taking away their assured right provided earlier. Having undertaken their entire educational career in India, they cannot at this stage turn back to their country in which they were born to secure professional education or to compete with the students thereunder. The change of eligibility conditions through the notification amounts to shifting of the goal post when the game is about to be over, for which the retroactive operation resulting in retrospective consequences should be set aside and adverse consequences occurring to the petitioners must be avoided. Accordingly, it was held that notification issued in March 2021 must apply to candidates becoming eligible thereafter and not to the petitioners. Further, the modification so made denying the benefit to the petitioners could not be justified as reasonable and non-arbitrary, when it is leading to gross prejudice to the petitioners. Thus, OCI card holders who have secured the position or the said status after issuance of the notification shall be governed by the eligibility prescribed thereunder and not those who procured it earlier. All the petitioners and other similarly situated OCI card holders were held to be entitled to the rights and privileges which have been conferred earlier to the issuance of notification of March 2021 without any exclusion or denial. The writ petitions were accordingly allowed in terms of the aforesaid direction.

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(5) GAIL v. Indian Petrochemicals Corpn. Ltd.23

(Delivered on 8-2-2023)

Coram: 2-Judge Bench of Justices Sanjay Kishan Kaul and Abhay S. Oka

Authored by: Justice Sanjay Kishan Kaul

Indian Petrochemicals Corporation Ltd. (“IPCL”) was allotted Natural Gas (for short “NG”) and extraction of its fractions through pipelines laid down by itself based on contract executed with Gas Authority of India Ltd. (GAIL). The transmission of gas was to be carried out through the pipelines commissioned, established and maintained by IPCL itself without any costs borne or paid by GAIL in said regard. Dispute started when GAIL levied “loss of transportation charges” ( “LTC”) in terms of the contract endorsed between both the parties. This stipulation in the contract was challenged by way of writ petition under Article 226 before the High Court on the ground that LTC could not be levied, since the entire transmission of NG was happening through the pipelines belonging to IPCL. IPCL contended in response to the appeal of GAIL before the Supreme Court that High Court had rightly exercised its writ powers for striking down a contractual clause by relying upon the judgments of Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly24, as also Kalpraj Dharamshi v. Kotak Investment Advisors Ltd.25, since there was uneven, unequal bargaining capacity of contracting parties in a commercial dispute with seemingly unfair unreasonable clauses in the contract. Three issues were addressed by the Supreme Court, which were as follows:

(a) Whether the writ petition filed by IPCL challenging Clauses 4.04 and 10.01 of the Contract was maintainable.

(b) Assuming such a petition was maintainable, whether the High Court could have invalidated the aforementioned clauses on the ground of unequal bargaining power and arbitrariness/unfairness.

(c) Whether monetary relief in the form of refund could have been granted after the order dated 19-9-2006 (Indian Petrochemicals Corpn. Ltd. v. Union of India26) was passed.

On the first issue, it was held that GAIL being a public sector undertaking (PSU) qualified as a State under Article 12 of the Constitution of India, which was enjoying a monopolistic position at the time of entering the contract with IPCL. Writ jurisdiction can be exercised when the State, even in its contractual dealings fails to exercise a degree of fairness or practises any discrimination by exercising its monopolistic powers. The levy of such LTC was ex-facie discriminatory, since IPCL was firstly mandated to build its own pipeline as per the contract and admittedly it never used GAIL’s pipeline or infrastructure for transmission of NG. The IPCL was clearly faced with a “Hobson’s choice” due to such unreasonable stipulations in the contract, where they had to either give up the contract if the pipelines were not constructed or accept the clauses levying LTC. Thus, GAIL clearly exercised unequal bargaining power at the time of signing of contract, wherein IPCL was placed at the receiving end only. Such a contractual clause is manifestly arbitrary and cannot be sustained. The writ petition could not have been thrown out on the grounds of availability or alternative civil remedy. On the relief pertaining to refund of LTC charges already paid by IPCL to GAIL, it was observed that since there was a delay in approaching the writ court, therefore charges paid 3 years prior to filing of writ petition would only be refundable. The appeals were resultantly disposed off with the aforementioned directions.

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(6) Central Board of Dawoodi Bohra Community v. State of Maharashtra27

(Delivered on 10-2-2023)

Coram: 5-Judge Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari

Authored by: Justice Abhay S. Oka

Reference to the Constitution Bench arose in the context of writ petition filed for the review of the view taken in a Constitution Bench judgment in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay28. In Sardar Syedna case29 it was held that the Bombay Prevention of Excommunication Act, 1949 (for short “the Excommunication Act”) violated the freedom to manage religious affairs enshrined in Article 26(b) of the Constitution of India as the practice of excommunication amongst the Dawoodi Bohra Community forms an integral part of the management of the community and therefore it is rendered unconstitutional and void.

In the instant writ petition the petitioners are seeking the issuance of a writ of mandamus directing the State Government to give effect to the provisions of the Excommunication Act after reconsidering the decision in Sardar Syedna case30.

The petitioners are aggrieved by the actions of the leader of the Dawoodi Bohra Community wherein they excommunicate any of the members of their community and such excommunicated members lose access to community spaces like mosques and burial grounds. In addition to the aforesaid the petitioners contended that such excommunication is violative of Articles 17, 19, 21 and 25 of the Constitution and therefore cannot be protected by Article 26 of the Constitution. However, during the pendency of the matter, the Excommunication Act was repealed by the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 casting doubt over the very maintainability of the case. The broad questions therefore considered by the Court were:

(1) Whether anything survives in the writ petition for a decision on merits?

(2) If the above question is answered in the positive, whether the view taken in Sardar Syedna case31 needs reconsideration?

On the first issue, it was held that despite the Excommunication Act being repealed, the issue remains whether the power to excommunicate is non-justiciable being protected under clause (b) of Article 26. Moreover, this issue requires examination in the present-day context. Further, in Sardar Syedna case32 the findings rendered by the Court was only with respect to the right of the head of the Dawoodi Bohra community to excommunicate another member of this community. The Court held that it was wrong to render the entire Excommunication Act void in a judgment that primarily deals with only one community and the question of whether excommunication prevailing in other religions, castes or sub-castes is constitutionally valid still remains.

On the second issue, placing reliance on Navtej Singh Johar case33, the Court categorically held that morality under Articles 25 and 26 should be interpreted under the guiding principles of constitutional morality as opposed to societal morality. Therefore, the issue to be considered was whether the practice of excommunication stands the test of constitutional morality. It was found that an excommunicated person virtually becomes an untouchable person and the act of excommunication results in his civil death thereby taking away the dignity and liberty of that person. The Court held that this is against the constitutional morality and therefore the view taken in Sardar Syedna case34 should be reconsidered by a larger Bench.

In Kantaru Rajeevaru v. Indian Young Lawyers Assn.35 (Sabarimala Matter), a 9-Judge Bench was constituted after the Constitution Bench held that the freedom of religion guaranteed under Articles 25 and 26 of the Constitution of India needs authoritative pronouncement by a largerBench of not less than seven Judges. Out of the 7 questions framed by this Bench, two questions were:

2.3. (3) Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?

2.4. (4) What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include constitutional morality?

The Court held that these questions also arise in the present case and the judgment of the 9-Judge Bench in Kantaru Rajeevaru case36 has a significant impact on the instant case and therefore the instant case was referred to be tagged along with the review of the Kantaru Rajeevaru case37 pending before the 9-Judge Bench.

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(7) Anna Mathews v. Supreme Court of India38

(Delivered on 10-2-2023)

Coram: 2-Judge Bench of Justices Sanjiv Khanna and B.R. Gavai

Authored by: Justice Sanjiv Khanna

The constitutional issue in writ petition related to the ambit of judicial review in the matter of appointment of Judges to High Courts under Article 217 of the Constitution of India. Referring to the judgment of Mahesh Chandra Gupta v. Union of India39, it was held that appointment of Judge is an executive function of the President of India, which is preceded by the constitutional requirement of consultation under Article 217(1) of the Constitution of India. The fitness of a person to be appointed as a Judge of the High Court is evaluated in the consultation process and that evaluation of worth and merit of a person is matter entirely different from eligibility of a candidate for elevation. There is a difference between “eligibility” and “suitability” of the candidate, wherein eligibility is an objective factor, whereas suitability relates to fitness of a person to be appointed as a Judge, which is excluded from the purview of judicial review. The judicial review is permissible only on the aspect of eligibility and not suitability. Referring to the Constitution Bench judgment of the Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union of India40, it was held that judicial review lies when there is lack of eligibility or “lack of effective consultation” but not on the “content” of consultation. The judicial review is not available qua any candidate except on the grounds of want of consultation with named constitutional functionaries or lack of any conditional eligibility in the case of appointment. It was further held that Supreme Court takes the final call only after consultations, recommendations and inputs from various agencies, including intelligence agencies, comments from the Government, as also dismissive letters, communications and complaints from various quarters. Thus, conduct of the Judge may not be determinative of his or her eligibility and having once taken the oath, she has already pledged to work as a Judge to uphold the Constitution and the laws. Accordingly, the writ petitions were dismissed at the admission stage.

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(8) Haji Abdul Gani Khan v. Union of India41

(Delivered on 13-2-2023)

Coram: 2-Judge Bench of Justices Abhay S. Oka and Sanjay Kishan Kaul

Authored by: Justice Abhay S. Oka

The challenge was laid to the legality and validity of the action of constituting the Delimitation Commission for the Union Territory of Jammu & Kashmir (for short “UT of J&K”) under the provision of the Delimitation Act, 2002 and the consequential exercise of delimitation undertaken by the Commission. Declaration under Article 370(3) of the Constitution of India was issued on 6-8-2019, through which it was declared that Article 370 shall cease to be operative, followed by the enactment of the J&K Reorganisation Act, 2019, providing for reorganisation of the State of Jammu and Kashmir. Two Union territories were constituted, one as a Union Territory of Ladakh and the other as a UTs of J&K comprising the existing State of J&K other than the Kargil and Leh districts. Article 239-A of the Constitution of India was amended to include the Union Territory of J&K along with the existing Union Territory of Puducherry, conferring power to the Parliament to enact the law for creating legislature for the Union Territory. The Delimitation Act of 2002 is not applicable to the erstwhile State of J&K and, thus, made applicable by virtue of Section 62 of the J&K Reorganisation Act to the newly formed UTs of J&K and Ladakh. A Delimitation Commission was constituted headed by the retired Judge of the Supreme Court with the State Election Commissioners as ex-officio members of the said Commission. Since, no challenge was made to various constitutional amendments, abrogating Article 370, as also the provisions of the Jammu and Kashmir Reorganisation Act, therefore, Court proceeded to test the legality and validity of the executive action only. Since no challenges were made to aforesaid constitutional amendments and the Reorganisation Act, therefore, in view of the 2019 presidential order, all the provisions of the Constitution of India were made applicable to the State of J&K and the special status of the same virtually came to an end. Conjointly reading and interpreting Articles 3, 4 and 239-A of the Constitution of India, the Court held as follows:

26. … (a) Parliament by making a law can convert an existing State into one or more Union Territories.

(b) Parliament is empowered by law to create a body of legislature for the Union Territories of Puducherry and J&K. Accordingly, sub-section (2) of Section 14 of the J&K Reorganisation Act provides that there shall be a Legislative Assembly for the Union Territory of J&K.

(c) Even if the law made by Parliament creating a body of legislature for Union Territories of Puducherry and J&K has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.

Article 170 was also held not to be applicable, as was argued on behalf of the petitioner, as the said article occurs under Chapter III, Part VI of the Constitution of India, which pertains to only the State Legislature and thus cannot have any application to the legislatures of Union Territories. The legislature of Union Territories will be governed by the law made by the Parliament under Article 239-A, and not by the provision of Chapter III, Part VI of the Constitution of India.

On the exercise of delimitation, Sections 60 and 62 of the J&K Reorganisation Act were elaborately referred to and interpreted to mean that the process of readjustment stipulated thereunder is nothing but the exercise of delimitation that can be carried out. Thus, there was no illegality in the exercise of delimitation/readjustment of the constituencies undertaken by the Delimitation Commission for the purposes of dividing Union Territory into 90 constituencies on the basis of 2011 census figures. The Delimitation Commission was rightly empowered to undertake the exercise of delimitation or readjustment based on the 2011 census as the earlier exercise of delimitation of the constituencies was not made on the said basis.

Since the Delimitation Act, 2002 was made applicable for the first time to the State of Jammu and Kashmir w.e.f. 31-10-2019, in view of the presidential order, a mandatory duty was cast of readjustment of the constituencies of both the newly created Union Territories of J&K and Ladakh. Thus, there was nothing wrong in undertaking the delimitation for the first time after the Constitution of the said Union Territories.

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(9) Ramesh Chandra Sharma v. State of U.P.42

(Delivered on 20-2-2023)

Coram: 2-Judge Bench of Justices Krishna Murari and S. Ravindra Bhat

Authored by: Justice Krishna Murari

The appeals are preferred against the judgment of the Full Bench of Allahabad High Court upholding the differently quantified compensation to landowners on the basis of classification between “pushtaini” and “gair-pushtaini” landowners. The “pushtaini” landholders whose lands were acquired, were given additional compensation @ Rs 3 per square yard along with 15% as rehabilitation bonus on the compensation already awarded, as also the 10% area of the acquired land, whereas those who were declared as “gair-pushtaini” were denied this additional benefit. On a cleavage of opinion between two Division Benches, matter went to the Full Bench of the High Court. Three broad issues framed by the Supreme Court in the appeals preferred before it, which were as follows:

23. … I. Whether the appellants, by signing the agreement, have waived their right to seek for revised compensation?

II. Whether the classification made under the Land Acquisition Act, and the U.P. Land Acquisition Rules, 1997 between pushtaini landowners and gair-pushtaini landowners for the payment of compensation at different rates is liable to be struck down as violative of Article 14 of the Constitution?

III. Whether the classification made by the Full Bench of the High Court between pushtaini landowners and gair-pushtaini landowners is in contravention to the law laid down by this Court in Nagpur Improvement Trust v. Vithal Rao43?

On the first issue of waiver of the right to receive higher compensation by the appellant after executing mutual agreements with the land development authority, Greater Noida, it was held that no men can be expected to predict the future violation of their fundamental rights. Referring to words of Jurist and thinker Francis Bacon said in the 17th century, it was stated that just because mutual agreements were signed, the landowners never forfeited their right to seek revised compensation as the cause of action accrued to them much after entering into the agreement. It was further held that even though available alternative remedy of approaching the Reference Court was not resorted to, the writ petitions were maintainable, since the appellant’s laid challenge to non-payment of additional compensation on the ground of discrimination and violation of Article 14, which was thus squarely maintainable.

While examining differentiation between the “pushtaini” and “gair-pushtaini” landowners, the court referred to the reasonable classification test, relying upon the judgments of State of W.B. v. Anwar Ali Sarkar44, Rustom Cavasjee Cooper v. Union of India45 to state that whilst applying such a test courts would not only look into the objects of the impugned Act, but will also look into the effects of the impugned Act. The classification made between both the categories of landowners was on a specious presumption that only “pushtaini” landowners permanently reside on a subject land, with land being their primary source of income only and not the “gair-pushtaini” landowners. This assumption and resultantly classification is not backed by any empirical data produced by the authority. While the classification is based upon the object of giving fair compensation, however, the effect of such classification is creating a dissonance between the object and its effect, great discrimination and injustice is being caused to the “gair-pushtaini” landowners. To justify such a classification, therefore it was incumbent on the Greater Noida Authority to have discharged their burden of proof by backing their claim with evidence, facts and statistics, in the absence of which the said plea or mere statement of facts cannot be accepted.

The court then applied the “Wednesbury principle” and “proportionality test” to test the validity of the classification and the reasonableness underlying it. Referring to the judgments of K.S. Puttaswamy (Privacy 9-J) v. Union of India46 and Gujarat Mazdoor Sabha v. State of Gujarat47, the five-pronged test was stated to be applicable for testing the proportionality of any legislative and administrative measure. Applying the said five-pronged test, it was held that “gair-pushtaini” landowners find it difficult to rehabilitate themselves as effectively as the “pushtaini” landowners for want of payment of said additional compensation. Thus, it directly affects the end objective of rehabilitation of “gair-pushtaini” landowners, which is the principal object of payment of compensation. It thus violated the third (the measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim) and fourth (restrictions must not only serve legitimate purposes; they must also be necessary to protect them) principle of the proportionality test. Thus, clearly the classification failed to meet the proportionality test and was resultantly unsustainable.

Referring to the judgment of Nagpur Improvement Trust case48, it was further held that authority while acquiring the land cannot distinguish between types of owners, as the object of achieving land for the public purposes is met with, irrespective of the type of owner whose land is being acquired. Classification on the basis of nature of owner of the land cannot be allowed, lest power-holding members of the society always get away with the larger compensation and marginalised may get lesser compensation. The Land Acquisition Act does not distinguish between classes of owners and uniformly provides compensation to all classes as it all depends on the public purpose for which the land is acquired. Accordingly, the classification between the two categories of landowners was held to be discriminatory, unreasonable, and violative of Article 14 of the Constitution of India with consequential directions to Greater Noida Authority to pay the said amount within a time bound period to all the “gair-pushtaini” landholders.

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(10) State of Gujarat v. H.B. Kapadia Education Trust49

(Delivered on 21-2-2023)

Coram: 2-Judge Bench of Justices Dinesh Maheshwari and B.M. Trivedi

Authored by: Justice B.M. Trivedi

The appellant State of Gujarat laid challenge to judgment of Gujarat High Court through which interpreting the provisions of the Gujarat Secondary Education Act and the Regulations framed thereunder, the State was directed to provide grant-in-aid for employment of Principal of the minority school run by Jain community. It was held that denying grant-in-aid to the school is violative of Article 30 of the Constitution of India. The solitary issue before the Supreme Court was whether a minority institution is entitled for grant-in-aid from the State Government for continuing the employment of any teacher or faculty dehors the eligibility and appointment conditions mentioned under the State Regulations and the grant-in-aid Code enacted by the State Government, by virtue of constitutional protection conferred under Article 30.

It was contended by the State in appeal that as per applicable Regulations employee of a registered secondary school shall stand compulsorily retired on completion of 58 years of age and that regulations prevail over grant-in-aid Code. If the management intends to continue the employment of any teacher beyond the age of 58, then the said management shall not be entitled for any grant-in-aid from the Government, nor such school would be entitled to receive any grant in respect thereof. Such provisions pertain to recognition, eligibility criteria for receiving grant-in-aid from the Government and uniformity is necessary to be applied across all the schools, all the educational institutions on such matters. Referring to the Constitution Bench judgment in T.M.A. Pai Foundation v. State of Karnataka50, it was held that such eligibility conditions for grant-in-aid do not dilute the minority status of the educational institution concerned and are valid if they are imposed on other educational institutions receiving the grant on parity. Referring further to the judgment of State of U.P. v. Abhay Nandan Inter College51, it was further held that Article 30 protection cannot be extended in a manner that goes beyond the pale of very right itself and assumes the form of a better right than that enjoyed by non-minority institutions.

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(11) State of Punjab v. Principal Secretary to the Governor of Punjab52

(Delivered on 28-2-2023)

Coram: 2-Judge Bench of Justices D.Y. Chandrachud and P.S. Narasimha

Authored by: Justice D.Y. Chandrachud

Challenge was to the action of Governor, State of Punjab deferring/postponing the holding of budget session of the 16th Punjab Vidhan Sabha on 3-3-2023. The reasons for not exceeding to the request for the summoning of the State Legislature under Article 174(1) of the Constitution of India were essentially that the Chief Minister had failed to furnish full details and information as sought for by the Governor in his various query letters. The queries raised by the Governor in the past related to various administrative decisions taken by the executive of the Punjab Government headed by the Chief Minister, which were not responded properly to the satisfaction of the Governor. This inaction of the Governor on the summoning of the legislative assembly for the budget session led to filing of Article 32 petition before the Supreme Court. Referring to Article 167 of the Constitution of India, it was stated that the Chief Minister has a sanguine duty to communicate and furnish all the details relating to functioning of the executive Government to the Governor as and when sought for.

On the aspect of summoning of the State Legislature for budget session, referring to Article 174 as also the Constitution Bench judgment of itself in Shamsher Singh v. State of Punjab53, it was held that the Governor exercises all his powers and functions conferred on him on the aid and advice of his Council of Ministers. The Indian Constitution does not envisage a Presidential form of Government and thus the powers of Governor as the constitutional head at the State level are no different. The powers of legislature are extraordinary and parliamentary democracy will become a dope with national elections and numerical exercise if President/Governor are allowed to stall summoning of legislatures at their own sweet discretion. Referring to another Constitution Bench judgment of Nabam Rebia v. Arunachal Pradesh Legislative Assembly54, it was held that the power of summoning of legislature is to be exercised on the aid and advice of the Council of Ministers and not by his own discretion by the Governor. The Governor is duty-bound to comply with the advice of duly elected Government. Thus, on the pretext of its own questions or doubts having not been responded or resolved by the Chief Minister, the summoning of the State Legislature could not have been deferred/postponed by the Governor. The dereliction of the Chief Minister to respond to the Governor does not furnish a justification to not comply with the constitutional obligation to summon the house for its budget session. Accordingly, the writ petition was disposed of with the directions and propositions of law as stated above.

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(12) Anoop Baranwal v. Union of India55

(Delivered on 3-3-2023)

Coram: 5-Judge Bench of Justices K.M. Joseph, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar and Ajay Rastogi

Majority judgment by — Justice K. M. Joseph

Concurring opinion by —Justice Ajay Rastogi

The Court was called upon to interpret the true effect and scope of Article 324(2) of the Constitution of India, which relates to appointment, tenure, and duration of the Chief Election Commissioner (for short “CEC”) and Election Commissioners (for short “EC”). The matter was referred to the Constitution Bench in view of Article 145(3) of the Constitution of India, since the reliefs prayed for in the writ petition related to devising of procedure for the appointment of CEC and EC till the Parliament makes any law on the said aspect. Court extensively referred to the Constituent Assembly Debates (“CAD”) to hold that the Election Commission was envisaged to be an independent entity, free from political clutches, influences and that Parliament was obligated to make law in the said regard. The Court also detailed various provisions of the Constitution of India that employ the phrase/words “subject to any law to be made by Parliament”, to hold that appointment of CEC and EC, unlike the Comptroller and Auditor General is to be made through a law duly enacted by the Parliament, and not by the President of India. Court also traced the history of the Election Commission of India (“ECI”) being headed only by CEC to start with, but to be enhanced with the addition of ECs. Referring to the judgment of S.S. Dhanoa v. Union of India56 and T.N. Seshan v. Union of India57, it was held that the President exercises power of appointing CEC and EC only because of the absence of such law, awaited to be made by Parliament. ECs enjoy the same status as that of CEC with the only difference being that whereas CEC is envisaged to be a permanent fixture, ECs can be variable in their strength, maybe, cannot be conferred the type of irremovability that is bestowed on the CEC. The other CECs are placed under the protective umbrella of the independent CEC. Referring to various Committee Reports, the Court underscored that the independence of the ECI can only be strengthened if the ECs are also provided with the same protection of office and tenure as the CEC.

The Court then examined the concept of “separation of powers” and “judicial activism“; right to vote being a constitutional right, more than the statutory right; importance of independent elections in a democracy; powers, function, and jurisdiction of the Election Commission of India, wherein it not only exercises administrative powers but also plenary quasi-judicial powers. The Court also elaborated the necessity of an independent Election Commission for preserving and protecting the fundamental rights of citizenry and strengthening rule of law and that ECI cannot be left to be controlled by a “yes man”.

The court then analysed the irregularities in the appointment of EC Mr Arun Goyal and if there is a vacuum in the implementation of Article 324, whether the court should interfere by resorting to judicial activism. Referring to the long line of judgments on the powers of the Supreme Court in the said regard, especially in Vineet Narain v. Union of India58, Union Carbide Corpn. v. Union of India59, Vishaka v. State of Rajasthan60, Court held that where there exists veritable gaps or vacuum or failure on the part of Parliament to discharge its obligatory duty of framing a law, the court may not shy away from what essentially would be part of its judicial function. The Court can issue appropriate directions and guidelines to fill up the vacuum till a law is duly enacted in terms of Article 324(2). Accordingly acting on the recommendations of Goswami Committee Report, as also the 255th Law Commission Report, directions were issued for appointment of CECs and ECs through a three-member Committee comprising the Prime Minister, leader of opposition and the Chief Justice of India. A permanent Secretariat separately for the ECI and charging its expenditure to the Consolidated Fund of India be established so that ECI becomes truly independent.

Concurring opinion

Concurring opinion by Mr Justice Ajay Rastogi also discussed the law and necessity of an independent and impartial ECI for the perseverance of rule of law and democracy of the country. However, in his concurring opinion and the final directions, an additional direction was included which pertained to be in accordance with the further direction on the grounds for removal of ECs. The protection of office and tenure be the same and akin to CEC, that is on the grounds as the Judge of the Supreme Court, subject to recommendation of a CEC as provided under second proviso to Article 325 of the Constitution of India. The reference to the larger Bench was accordingly answered with the aforesaid directions.

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(13) Union of India v. Union Carbide Corpn.61

(Delivered on 14-3-2023)

Coram: 5-Judge Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari

Authored by: Justice Sanjay Kishan Kaul

Curative petition was filed by the Union of India seeking reconsideration of the settlement that was affected in the aftermath of Bhopal Gas Tragedy. The primary ground of seeking review of the full and final one-time settlement order passed by the Supreme Court in 1987 was because of the following reasons:

(a) error in the computation of death cases;

(b) error in the computation of temporary injury cases;

(c) error in the computation of minor injury cases; and

(d) other cases.

It was argued that thus the compensation ignored actual facts and figures of death cases and those temporarily injured with the long-lasting impact. The settlement was sought to be recalled and revival of the suit for damages was preferred by the affected aggrieved families and Central Government. The Court repelled the grounds of curative petition stating that without a settlement arrived at the relevant point of time, immediate funds would have never been available for the victims. This immediate fund amount was utilised towards the disbursement of compensation that was reasonably over and above of what was otherwise available or accrued to them under law. The Supreme Court also found that no ground of fraud was pleaded in the curative petition; that previously the Union of India itself on many occasions had opposed the prayer on behalf of various victims to reopen the entire settlement amount. Therefore, when Union of India had opposed the said request of reopening of the settlement amount on multiple occasions, the same cannot be allowed to be reagitated or reopened again and again, when already substantial funds from the corpus had been withdrawn. The Court therefore declined to interfere with the award passed on the basis of settlement or to review the same in exercise of curative jurisdiction. The petition was dismissed.

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(14) Icon Education Society v. State of M.P.62

(Delivered on 17-3-2023)

Coram: 2-Judge Bench of Justices Dinesh Maheshwari and P.V. Sanjay Kumar

Authored by: Justice P.V. Sanjay Kumar

The short question before the Supreme Court was whether a minority educational institution in the State of Madhya Pradesh is required to get the fees charged by it fixed by the Admission and Fee Regulatory Committee (for short “AFRC”) under the provisions of the Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (for short “Act of 2007”). The society pleaded that it is entitled for exemption from fixation of fees by AFRC, which request was declined by the authorities.

Referring to the judgment of the Constitution Bench in Modern Dental College and Research Centre v. State of M.P.63, it was held that only power available to the AFRC under Act of 2007 is to “regulate the fees” proposed by the institution, conditioned by the parameter specified under Section 9(1) of the Act. Liberty was given to the unaided institution to propose the fees they wish to charge keeping in mind the factors set out thereunder to the AFRC, from which no constitutional protection can be claimed. It is not permissible for the AFRC to unilaterally fix the fees to be charged by the society, nor the appellant society can claim complete immunity in undertaking the said exercise by seeking exemption from any interference by AFRC. Even though it is a society having a minority character, it must necessarily submit the fees proposed by it in the professional courses offered by it, which must be examined by the AFRC for scrutinising whether it is excessive or not and falling outside the factors prescribed under Section 9. In this way, interpreting the provisions of the Act of 2007 harmoniously, the Court disposed of the appeal.

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(15) Union of India v. Parashotam Dass64

(Delivered on 21-3-2023)

Coram: 3-Judge Bench of Justices Sanjay Kishan Kaul, Abhay S. Oka and B.V. Nagarathna

Authored by: Justice Sanjay Kishan Kaul

Cardinal issue before the Supreme Court was whether order passed by Armed Forces Tribunal (for short “AFT”) would be amenable to challenge in the writ jurisdiction under Article 226 of the Constitution of India before any jurisdictional High Court. The primary contention on behalf of the petitioner was that exclusion of judicial review under Article 226 of the Constitution of India cannot be countenanced as there was no viable alternative appeal mechanism available against the judgments of AFT. Article 136(2) does not permit any special leave to appeal to the Supreme Court against orders of AFT and secondly Section 31 of the AFT Act provides the possibility of appeal only if “a point of law of general public importance” is involved, not otherwise. Court disagreed and overruled the observations and directions laid down in the judgment of Union of India v. Kant Sharma65, putting embargo on exercise of Article 226 jurisdiction by the High Courts. Article 226 was stated to be different from Article 227, not inhibited or controlled by superintendent powers under Article 227. It was held that at least two judicial scrutinies independently be available to any litigant and be not denied.

Court also rejected the plea of Union of India to carve out certain exceptions to the exercise of judicial review by writ courts. If the proceedings before any authority result in denial of fundamental rights or they suffer from jurisdictional error, then writ jurisdiction can be exercised over any such kind of proceedings and thus exceptions cannot be carved out to the same. Judgment of Kant Sharma case66 was accordingly overruled to be not laying down the correct proposition of law. All the matters were remitted back to the High Court, wherever High Courts had taken a view that writ petitions are not maintainable against the orders/judgments of AFT.

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(16) Orissa Administrative Tribunal Bar Assn. v. Union of India67

(Delivered on 3-3-2023)

Coram: 2-Judge Bench of Justices D.Y. Chandrachud and Hima Kohli

Authored by: Justice D.Y. Chandrachud

The appeals laid challenge to the judgment of Odisha High Court affirming the abolition of the Odisha Administrative Tribunal (for short “OAT”) by the Central Government. The abolition took place on the request of the State Government, which was made in view of the multiple tiers of adjudication involved relating to disputes entertainable by OAT. The State mentioned that having multiple tiers of adjudication of service disputes, especially after the judgment of L. Chandra Kumar v. Union of India68, the very raison d’être of OAT was defeated as, speedy justice could not be delivered. Accordingly, all the cases entertainable and pending before the OAT were to be transferred to the Odisha High Court. The recommendation of the State of Odisha was accepted by the Central Government leading to the abolition of OAT. The following issues were delved into and resolved by the Supreme Court:

24. … (a) whether the writ petitions instituted by the appellants before the Orissa High Court were maintainable;

(b) whether Article 323-A of the Constitution makes it mandatory for the Union Government to establish SATs;

(c) whether Section 21 of the General Clauses Act can be invoked to rescind the notification establishing the OAT, thereby abolishing the OAT;

(d) whether the abolition of the OAT is arbitrary and therefore violative of Article 14 of the Constitution;

(e) whether the abolition of the OAT is violative of the Fundamental Rights of access to justice;

(f) whether the Union and State Governments have violated the principles of natural justice by failing to provide the OAT Bar Association and the litigants before the OAT with an opportunity to be heard before arriving at a decision to abolish the OAT;

(g) whether the Notification dated 2-8-2019 is invalid because it is not expressed in the name of the President of India;

(h) whether the transfer of cases from the OAT to the Orissa High Court has the effect of enlarging the jurisdiction of the latter;

(i) whether the State Government took advantage of its own wrong by ceasing to fill the vacancies in the OAT;

(j) whether the failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT vitiates its decision to abolish the OAT; and

(k) whether the Union Government became functus officio after establishing the OAT.

Referring to the judgments of M.P. High Court Bar Assn. v. Union of India69 as also T.N. Govt. All Deptt. v. Union of India70, it was held that previously the Supreme Court declined to intervene and interfere with the decision of tribunals in the States. On the aspect of maintainability of the writ petition at the instance of the Bar Association, it was held that the existence of the legal right of the petitioner alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. If impugned action is likely to adversely affect the right of the person approaching the court, the petition becomes maintainable and cannot be rejected at the threshold. Referring to the judgment of State of Orissa v. Ram Chandra Dev71, it was held that speedy redressal of grievances is a facet of the Fundamental Rights of access to justice, the facet of right of the Bar Association was also violated and thus, the writ petition was clearly maintainable.

It was further held that Article 323-A of Constitution of India does not preclude the Union Government from abolishing SAT’s. The expression “may” occurring under Article 323-A is a permissive provision, in the nature of being just facilitative and enabling no conditions are specified in which the power conferred under Article 323-A of the Constitution of India to be exercised, there are multiple factors that enter into consideration whether a tribunal is to be established or not established. The word “may” under Article 323-A cannot be imparted the character of the word “shall” and it is just directory and enabling in nature.

On the argument of invocation of Section 21 of the General Clauses Act for the abolition of OAT, it was held that there is no bar to the applicability of Section 21(2) administrative orders and decision-making process, especially for resigning the notification issued earlier establishing OAT. The only exception of applicability of Section 21 of the General Clauses Act is a power exercised in a quasi-judicial capacity and to all administrative decisions Section 21 applies by necessary implication. Section 21 was thus equally applicable to the Administrative Tribunals Act, since the decision to establish OAT was clearly administrative and not quasi-judicial in nature of the Central Government. In fact, the abolition of OAT amounts to revival of the jurisdiction of the Odisha High Court, with the transfer of all the pending cases from the erstwhile OAT to the High Court. Thus, the administrative power was exercised simply for resumption of the jurisdiction of the High Court which was originally enjoyed by it. Such revival was nowhere barred under Article 323-A of the Constitution of India.

Repelling the argument of abolition notification of OAT being unreasonable, arbitrary, and resultantly violative Article 14, the court went on to examine whether the decision is affected by extraneous or irrelevant considerations. Referring to the judgments of Associated Provincial Picture Houses, Ltd. v. Wednesbury Corpn.72, when a decision becomes unreasonable or arbitrary was duly explained, it was found that the State Government had to incur huge financial expenditure in maintaining the establishment of OAT, which was not contributing to speedy justice post the judgment of L. Chandra Kumar case73. Facts and figures are also quoted, which were all treated to be relevant and germane considerations having nexus with the decision taken by the State Government of abolition of OAT. The Court also applied the proportionality test to evaluate the validity of executive action of abolition of OAT, to hold that the decision cannot be treated as disproportionate.

The argument of the notification being invalid, having not been expressed in the name of the President of India was also rejected, whilst interpreting Articles 77 and 166 together. Referring to the judgment of Air India Cabin Crew Assn. v. Yeshaswinee Merchant74, it was held that the exercise of statutory power is not rendered invalid merely because it is not expressed to have been taken in the name of the President. Any non-compliance with provisions of Articles 77 and 166 does not invalidate the order, but it precludes the drawing of any such irrevertible presumption of the order having been issued by the President or the Governor. The notification cannot be treated to be unconstitutional on the said score. Article 77 on this count was held to be directory in nature as non-compliance does not have any bearing on the process of decision-making itself. Thus, the notification could not be treated to be invalid merely because of absence of the President therein behind its issuance.

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(17) Arup Bhuyan v. State of Assam75

(Delivered on 24-3- 2023)

Coram: 3-Judge Bench of Justices M.R. Shah, C.T. Ravikumar and Sanjay Karol

Authored by: Justice M.R. Shah

Concurring opinion: Justice Sanjay Karol

The judgment arose out of reference made to a larger Bench against the earlier judgment in Arup Bhuyan v. State of Assam76, as well as State of Kerala v. Raneef77. The earlier Bench in Arup Bhuyan case78 and Raneef case79 had held that mere membership of any banned organisation under the provisions of the Unlawful Activities (Prevention) Act, 1967 ( “UAPA”) without any explicit guilt may not make him culpable for offences provided thereunder, unless he resorts to violence or incites people to violence or does any act intended to create disorder or disturbance of public peace by resorting to violence. Likewise, in Arup Bhuyan case80 relying upon a number of American doctrines and judgments, it was observed that mere membership of any banned organisation will not attract criminality.

The Union of India made broadly the following arguments before the larger Bench for reconsideration of the earlier views in both the judgments:

(a) Neither Arup Bhuyan case81 nor Raneef case82 were matters relating to challenge to validity and constitutionality of any of the provisions of UAPA, nor the Union was ever heard by being provided with a fair opportunity of replying prior to taking of the view.

(b) American doctrines and judgments cannot be applied mechanically or blindly to various constitutional provisions of Part III, especially that pertaining to UAPA enactment.

Court after examining both the judgments came to the conclusion that in none of the matters, was there any challenge laid to the constitutionality or validity of the UAPA or the provisions contained thereunder. The petitioner filed SLP related to grant of bail to a person being proceeded against in charge for commission of offences under UAPA and never questioning the validity of the provisions of UAPA. Since the Union of India was not heard, the judgment required reconsideration. The Supreme Court accordingly held that in the absence of Union of India, without challenging the constitutional validity, the view as taken was clearly untenable.

On the question of applicability of American doctrines and precedents to the freedoms guaranteed under Article 19, it was held that the legal position in India insofar as freedoms under Part III of the Constitution of India are concerned, stands on a much different footing. American doctrines and precedents would not apply mechanically and blindly in the Indian context, till and until they are sync with the constitutional and statutory provisions prevalent in the country. The American doctrine of “clear and present danger” and “imminent lawless action” shall not apply in the Indian context, where a special enactment is stated to be applicable. Court further held that reasonable restrictions under Article 19, especially on the grounds of “sovereignty” and “integrity” of India can be imposed upon freedom of speech and expression or other rights guaranteed under Article 19. UAPA is an enactment relatable to sovereignty and integrity of India, and therefore reasonable restrictions can be imposed through the provisions of the said legislation. Nothing in the American Constitution corresponds to Articles 19(2) and (3), allowing the legislature to make laws imposing such restrictions therefore reliance on the American Constitution and the doctrines that have evolved therein is not permissible. A number of judgments of the Supreme Court of India and the United States were referred to and relied upon to bring out the distinction between the Indian context and the American context when it comes to limiting the fundamental ights provided under Article 19. Referring to the judgments of Babulal Parate v. State of Maharashtra83, and Madhu Limaye v. Sub-Divisional Magistrate84, it was held that in India, the fundamental rights are restricted through reasonable restrictions, which can be imposed by the State. In the present matter since the reasonable restrictions that have been mentioned are all subject to the freedom of speech and expression and other freedoms as specified under Article 19 are subjected to reasonable restrictions.

Thereafter, after examining the anatomy of the entire UAPA, especially Sections 3 to 6 of the UAPA, the larger Bench held that a comprehensive procedure is prescribed, after which Central Government approves any organisation to be notified as a banned organisation. Such organisations can neither make new members, nor carry out any of its activities.

Membership of such a banned organisation, which has been banned after a thorough meticulous process is prescribed vide Sections 5 and 6 of the UAPA. Therefore, if the person continues to be a member of the organisation even after its notification as a banned organisation under UAPA, then he attracts penal liability for continuing his membership. There is no question of vagueness or indefinite nature of the statutory provision as the person concerned is presumed to be aware of the declaration of the organisation concerned as a banned organisation and that his continued membership shall attract criminal consequences. The ratio as laid down in the judgments of Arup Bhuyan case85 and Raneef case86 stating that “active membership” is required to be proven was held to be an incorrect law and accordingly overruled by the Court as per incuriam and the reference was answered with the above reasoning.

Justice Sanjay Karol concurring with the majority opinion made a further endeavour to trace the development of the law on Article 19 in India and the application of judicial decisions of Courts of the US on the same.

The Constitution (Sixteenth Amendment) Act, 1963, empowered the State to impose reasonable restrictions on the freedom of speech and expression guaranteed under Article 19 of the Constitution. Relying on State of Bihar v. Shailabala Devi87, O.K. Ghosh v. E.X. Joseph88, Shreya Singhal v. Union of India89 and Kaushal Kishor v. State of U.P.90, it was held that the aforementioned constitutional amendments to Article 19 “save and enable the State” to make laws restricting freedoms under one of the permitted heads of restrictions (such as sovereignty and integrity of India, security of the State and incitement to an offence) and also have a proximate link to it.

Reiterating the judicial position on this issue and referring to Dharam Dutt v. Union of India91, it was held that the right conferred by Article 19(1)(c) can be subjected to those restrictions which satisfy the test of Article 19(4) of the Constitution. In Jamaat E-Islami Hind v. Union of India92, it was held that principles of natural justice must be applied to adjudication under the UAPA Act, but this requirement must be tailored to safeguard the public interest which always outweighs the lesser interest.

On the other hand, the First Amendment of the American Constitution has no exceptions resonating with ‘reasonable restrictions’ in the Indian Jurisprudence. “Congress shall make no law which abdridges the freedom of speech” makes it amply clear that the State holds lesser power to impose restrictions on the freedom of speech in the USA, when compared to India and reliance for this deduction was placed on Babulal Parate (Supra), Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India93, and Madhu Limaye v. SDM, Monghyr94 which reaffirms the same position. Further, in Shreya Singhal (Supra) it was held that under the Indian Constitution, speech may be restricted only under one or more of the eight designated subject matters set out in Article 19(2), which vastly differentiates it from the Constitution of the US.

However, it was held that in certain cases, the Judgements of a court of law in the US can be relied upon by Indian Courts, thus not imposing a blanket bar on the reliance of such foreign Judgements. In Express Newspapers and Ors. v. UOI and Ors.95, it was observed that Article 19(1)(a) of the COI is based on the First Amendment of the American Constitution and therefore it would be “legitimate and proper” to refer to the decisions of the Supreme Court of the United States to “appreciate the true nature, scope and extent of this right”. It was held that this opinion was based on a due recognition of the “paucity of authority in India on the nature, scope and extent” of Article 19(1)(a) at that point of time and therefore within these specific contours, reliance can be placed on decisions of the Supreme Court of the US.

In the earlier Judgement of Arup Bhuyan (Supra), and Indra Das v. State of Assam96 reliance was placed on the Judgement of the Supreme Court of US’s Elfbrandt v. R. Russell et al.97 which rejected the doctrine of ‘guilt of association’. Further, Indra Das (Supra) placed reliance on Scales v. United States98 to make a distinction between an active and a passive member of an organisation. In Scales (Supra) it was held that the statute does not make all association with an organisation illegal, and there must be clear proof that a defendant “specifically intends to accomplish the aims of the organisation by resort to violence”. Similarly, a long line of Judgements of the Supreme Court of the US were relied upon earlier in Arup Bhuyan (Supra) and Indra Das (Supra) including Brandenburg v. Ohio99 where it was held that Ohio’s Criminal Syndicalism Act cannot be sustained which punishes persons who “advocate or teach the duty, necessity or propriety” of violence “as a means of accomplishing industrial or political reform” or the justification and advocation of it. The Act also punishes volunatry assembly with a group formed to “to teach or advocate the doctrines of criminal syndicalism”. In Brandenburg (Supra) it was held that a State does not have the power to forbid or proscribe the advocacy of use of force or violation of a law unless such advocacy is likely to and directed to incite or produce imminent lawless action. Indra Das (Supra) relying on a number of decisions of the Supreme Court of the US and Arup Bhuyan (Supra) read down Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 10 of the UAPA to bring them in consonance with the Constitution.

It was held that these abovementioned decisions of the Supreme Court of the US are in contradistinction to the scenario in question in India for the reason that they largely involve indictment on the basis of membership of political organisations or incidents of free speech advocating for overthrow of the Government. However, the ambit of UAPA is narrrow and restricted to only those organizations aiming to compromise the sovereignty and integrity of India and further such organizations have to be notified to be unlawful for membership to be prohibited. The UAPA provides for a public notification declaring an organisation unlawful under Section 3 of the UAPA which can be challenged and adjudicated upon under Section 4 of the UAPA creating checks and balances within the framework of the UAPA.

It was held that a vast, varied and scholarly jurisprudence has been developed by the Supreme Court of India over seven decades in the specific context of the situations and conditions prevalent in India. Decisions rendered in a distinct scenario as well as in demonstrably different constitutional provisions especially those involving considerations of national security and sovereignity cannot be justifiably be relied upon in India mechanically in ignorance of the prevailing constitutional provisions.

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(18) SBI v. Rajesh Agrawal100

(Delivered on 27-3-2023)

Coram: 2-Judge Bench of Justices D.Y. Chandrachud and Hima Kohli

Authored by: Justice D.Y. Chandrachud

Challenge was made to Reserve Bank of India (Frauds Classification and Reporting by Commercial Banks and Select FIs) Directions, 2016 issued by the Reserve Bank of India ( “RBI Directions”). These Directions were challenged on the primary ground that no opportunity of being heard is envisaged to borrowers before classifying them or their accounts as fraudulent. The Court through its detailed judgment held that principles of natural justice, particularly the use of audi alteram partem has to be necessarily read into the master directions on fraud to save it from the vice of arbitrariness, since it entails serious civil consequences for the borrower.

Under the impugned RBI directions, not only lender bank or entity can directly classify the account as fraud, but also automatically report fraud to CBI for penal action, as also all other banks for treating the borrower concerned likewise. Referring specially to Clauses 8.9, 8.11 and 8.12, it was contended that the dispensation provided under the impugned direction has serious detrimental consequences on the borrower, including wiping him out entirely from commercial business.

Court however rejected the contention of the borrowers that no right to hearing can be envisaged prior to the registration of FIR against any borrower. Principles of natural justice are not applicable at the stage of reporting of a criminal offence. Referring to the long line of judgments viz. State of Orissa v. Binapani Dei,101 and Canara Bank v. V.K. Awasthy102, it was held that whenever any authority has the power to take punitive or damaging action, every such decision must be preceded by reasonable opportunity of being heard and that administrative action must be made consistent with the rules of natural justice. The duty to act judicially is implicit in the exercise of such power, lest such an order made to the prejudice of any person is a nullity. The expression “civil consequences” encompasses infraction of not merely property or personal rights, but of civil liberties, material deprivations, and non-pecuniary damages. Analysing the scheme of RBI directions, especially Clause 8.12, it was held that it has serious civil consequences on the business and commercial survivors of the borrower. The law laid down in SBI v. Jah Developers103 would therefore be applicable squarely. Holding that classification of the borrower’s account as fraud under RBI directions debars the company from raising finances, which is nothing less than a civil death, in addition to infraction of their fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. It is akin to blacklisting a borrower through a different expression of words and thus the law laid down in Erusian Equipment & Chemicals Ltd. v. State of W.B.104, and Joseph Vilangandan v. Executive Engineer (PWD)105, would be applicable to providing sufficient opportunity of hearing with all procedural safeguards to the borrower concerned.

The RBI and lender banks contended that there is an implied exclusion of audi alteram partem and principles of natural justice (“PNJ”) by the directions as they do not explicitly provide for hearing to a borrower. Referring to the judgments of Swadeshi Cotton Mills v. Union of India106, and Mangilal v. State of M.P.107, it was held that even when there is no provision, PNJ can be read into statute all the regulations framed thereunder as a necessary precursor to any adverse prejudicial decision. The usage of phrase “immediate action” is necessary, cannot lead to a construction that excludes requirement of prior hearing. Immediacy or urgency requiring swift action is a situational fact having a direct nexus with the likelihood of adverse consequences on fail in production. Where the urgency is not so extreme, it is practicable to adjust and strike a balance between the competing claims of hurry and hearing. Since the procedure for declaration of any borrower as fraudulent is a long-drawn process stretching over 5 to 6 months, therefore PNJ cannot be excluded on the grounds of immediacy of such action. The banks can always serve a notice, giving borrowers an opportunity to submit their reply, before classifying their accounts as fraud.

The court next dealt with the contention pertaining to the constitutional validity of RBI Master Directions. Referring to judgments of Cantonment Board v. Taramani Devi108, and DTC v. Mazdoor Congress109, it was held that any administrative action or decision violating the rule of audi alteram partem is per se arbitrary and violative of Article 14. Any statutory provision must be so interpreted that it is consistent with the PNJ. It must be presumed that the legislature and statutory authorities intend to act in accordance with the PNJ and no statutory provision would negate the opportunity of compliance of the PNJ. Such a requirement of PNJ can be by necessary implication read into any statutory provision. If such a requirement of an opportunity to show cause is not read into the rule, it would be open to challenge as violative of Article 14 of theConstitution of India, the power being inherently arbitrary in nature. Accordingly, the Court held that audi alteram partem must be read in necessarily under Clause 8.9 and other such clauses of RBI directions on fraud. Since the said opportunity was not provided by the lenders, therefore all the decisions taken by banks/lending institutions were unsustainable and deserve to be quashed. Accordingly, the various appeals were disposed of in terms of the directions issued in the judgment.

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(19) Madhyamam Broadcasting Ltd. v. Union of India110

(Delivered on 5-4-2023)

Coram: 2-Judge Bench of Justices D.Y. Chandrachud and Hima Kohli

Authored by: Justice D.Y. Chandrachud

A challenge was made to a decision of the Union of India of revoking the permission granted to Madhyamam Broadcasting Limited to uplink and downlink news and current affairs television channel called Media One (for short “MBL”). The Single Bench as well as the Division Bench dismissed the petitions filed by it relying on certain materials disclosed solely to the court in a sealed cover by the Union Ministry. In the initial permission granted to MBL in September 2011, as a licensing authority, it possessed the power to revoke the licence on the grounds of national security and public order. Subsequently, a show-cause notice (“SCN”) was issued in February 2016 in view of denial of security clearance by the Ministry of Home Affairs (for short “MHA”) proposing to revoke the permission granted to MBL. After the issuance of SCN, renewal was permitted to MBL for another five years. Subsequently, in January 2022 after another series of SCNs, MIB revoked the permission on the primary ground of MHA denying the security clearance and in public interest. The Court framed 3 broad issues for consideration by it in the appeal preferred by MBL:

22. … (1) whether security clearance is one of the conditions required to be fulfilled for renewal of permission under the Uplinking and Downlinking Guidelines;

(2) whether denying a renewal of licence and the course of action adopted by the Division Bench of the High Court violated the appellants procedural guarantees under the Constitution; and

(3) whether the order denying renewal of licence is an arbitrary restriction on MBL’s right to the freedom of speech and expression under Article 19(1)(a) of the Constitution.

The Court held that principles of natural justice seeks to realise four momentous purposes: fair outcome, inherent value and fair procedure, legitimacy of the decision and decision-making authority and dignity of individuals. For this reason, it has to be necessarily read in as a precondition to passing off any administrative decision by any administrative authority. Referring to the judgment of Maneka Gandhi v. Union of India111, it was held that reasonability must not only inform substantivity in the decision-making process, but also the procedural aspect of its principles of proportionality demand that fair procedure must be adopted in arriving at any decisions, absent which even if the decision is correct, but it would stand vitiated being disproportionate on procedural ground. The concept of proportionality analysis assesses both the object as well as the means to utilise to achieve the said object. Any breach of fundamental rights must also satisfy the reasonableness of the procedure employed at arriving at the said decision. The Court also delineated the ingredients of right to a fair hearing, which are twofold viz. reasoned order and disclosure of the material relevant to the decision accompanied with open justice. Explaining the necessity of passing the disclosed order preceded by disclosure of all necessary material to the affected party, the Court held that if any of the ingredients of procedural fairness are violated then the ultimate decision becomes suspect a non-reason order perpetuates a non-application of judicial minds in assessing the varsity of the inputs. The court also criticised the approach of the High Court in adopting the sealed cover procedure whilst adjudicating the writ petition. The right of the petitioner of an effective constitutional writ remedy was left as a “dry parchment” due to adoption of a sealed cover procedure in which the appellant was severely prejudiced. Court also criticised the adoption of sealed cover as a procedure violative of fundamental rights of any litigant held that judgment of High Court becomes unsustainable on the said score as well.

The dispensation of non-compliance of PNJ on the grounds of national security was also examined at length, especially the duty to disclose reasons and it was held that there must be material on the basis of which the authority must reasonably and proportionately conclude that there is a real possibility that the activities harm national security and that disclosure of any material would widely affect national security. The State can claim secrecy and privilege from disclosure of documents or complying with PNJ on grounds of national security, but however if there is a departure it must be shown adequately that requirements of national security outweigh the duty of fairness and the same must be established through cogent material.

The court also examined the decision of revocation of licences on the grounds of proportionality, especially in the backdrop of defences of national security. On the ground of defence of “class immunity” and of public interest of disclosure of material to MBL, relying upon the judgment of S.P. Gupta v. Union of India112, it was held that the “doctrine of class immunity” in India is open to judicial review, it is always open to the court to weigh and balance the extent to which any document may be or may not be disclosed and which part and to what extent it must be kept secret. The court in the said exercise determines, when claims for immunity on the grounds of public interest are made determines if—

134.(vii) … (a) the disclosure of the document would in effect be against public interest (effects test); and

(b) if so, whether the public interest in disclosure is so strong that it must prevail over public interest in the administration of justice (the balancing test).

If the Court arrives at the conclusion that disclosure causes serious harm to an important public interest, then it may decline to direct for disclosure. Therefore courts must use the proportionality standard to assess claims of public interest immunity against disclosure of any information or document and the standards laid down in the Constitutional Bench judgment of Modern Dental College and Research Centre v. State of M.P.113 must be relied upon. Eventually after discussing all the above principles, it was held that MBL’s right to fair hearing, disclosure of necessary information and documents were violated, especially when the same were done on the grounds of denial of security clearance by the MHA. Accordingly, the non-renewal of the permission was set aside and the denial of clearance by the MHA was also quashed, with the civil appeals being accordingly allowed by the court.

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(20) Prakash Chandra Yadav v. State of Jharkhand114

(Delivered on 10-7- 2023)

Coram: 2-Judge Bench of Justices Aniruddha Bose and Sudhanshu Dhulia

Challenge was made to judgments of Jharkhand High Court which affirmed the detention of appellant detained under Jharkhand Control of Crimes Act, 2002 (for short “Act of 2002”). The Act deals with externment and detention of anti-social elements in the State of Jharkhand, as defined under the Act. The appellant was served with a detention order when he was in judicial custody, mentioning 18 pending cases as grounds for retaining the appellant. The representation against the detention was tendered by the appellant, which was sent through email and received by the Government within 5 to 6 days on 26-8-2002. The Advisory Board took a decision on 2-9-2022, that is after receipt of representation sent by the appellant but failed to consider the representation of the appellant whilst confirming the initial detention order. Non-consideration of representation sent by the appellant by the Advisory Board, despite having been sent much prior thereto was the principal ground of challenge to the orders confirming detention. The Court held that statutory procedural requirements were not complied with by the Advisory Board, nor by the State Government, which vitiated the entire detention of the appellant. Article 22(4) of the Constitution of India of the appellant was thus clearly violated. Relying on the judgment rendered in Jayanarayan Sukul v. State of W.B.115, it was held that laws of preventive detention must not only be strictly construed, but also strictly applied.

However, the court accepted the contention of the State that since subsequent procedure was not followed, therefore orders extending detention were void and not the initial detention undertaken by the detenu. Referring to the Constitution Bench judgment in K.M. Abdulla Kunhi v. Union of India116, it was held that unexplained delay in disposal of the representation of the detenu, rendered the continued detention unauthorised and illegal. Resultantly the extended period of detention was held to be illegal and thus detention orders were quashed by the Supreme Court.

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(21) Shilpa Sailesh v. Varun Sreenivasan117

(Delivered on 1-5- 2023)

Coram: 5-Judge Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari

Authored by: Justice Sanjay Kishan Kaul

The core issue before the Constitution Bench related to powers of the Supreme Court available under Article 142 of the Constitution of India in reducing or waiving the period of 6 months for moving the second motion under Section 13-B(2) of the Hindu Marriage Act, 1955 (hereinafter “HMA 1955“) for dissolution of marriage. Many High Courts and even Family Courts had taken a view that such a period can be waived off of 6 months, when there was absolutely no possibility of the spouses cohabiting or residing together. The following substantial questions of law arose for consideration before the Supreme Court:

8. … (i) the scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India;

(ii) … whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution of India, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Protection of Women from Domestic Violence Act, 2005, Section 125 of the Criminal Procedure Code, 1973, or criminal prosecution primarily under Section 498-A and other provisions of the Penal Code, 1860. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142(1) of the Constitution of India is an ancillary issue to be decided; and

(iii) … whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer.

Expanding and elaborating the width and breadth of Article 142 of the Constitution of India, it was held that it is an equitable power for resolving and reconciling the intersection between general and specific laws. It covers every kind of proceedings in court, whether civil or criminal, interlocutory or final, before or after judgment, within the sweep of expression “cause or matter”. The powers under Article 142 are complimentary to that specifically conferred on the Supreme Court by various provisions of the statute. However, Article 142, howsoever rightly worded cannot be used to ignore express statutory provisions dealing with the subject and thereby achieving something indirectly which cannot be achieved directly. Examining the nature of Section 13-B(2) of the HMA, 1955, it was stated that the court must consider the following questions whilst exercising discretion to waive the mandatory cooling-off period they are as follows: how long the parties have been married; how long litigation is pending; how long they have been staying apart; are there any other proceedings between the parties. After examining all the factors, if the court comes to the conclusion that there is no likelihood of success of mediation/conciliation, then the minimum statutory time period can be waived. The Supreme Court can pass an order to do complete justice in any proceedings, which the Family Court of the High Court can so pass.

Referring further to the judgments of Munish Kakkar v. Nidhi Kakkar118 and Sivasankaran v. Santhimeenal119, where the parties had been engaged into multifarious litigation including divorce proceedings for almost 2 decades and several attempts to mediate failed to yield any results, then under Article 142, (recognising the futility of completely failed and brokendown marriage, even if there is opposition to grant of divorce), the court can grant decree of divorce. Accordingly, after discussing the long line of judgments, it was further held that power to do “complete justice” is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the HMA, 1955. The court’s power to dissolve marriage on settlement by passing a decree of divorce by mutual consent as well as quashing other proceedings including criminal proceedings remains and can be exercised irrespective of the fault of the parties. Accordingly, the questions referred to the Constitution Bench were answered by the Supreme Court.

(22) C. S. Gopalakrishnan v. State of T.N.120

(Delivered on 9-5-2023)

Coram: 2-Judge Bench of Justices Dinesh Maheshwari and P.V. Sanjay Kumar

Authored by: Justice P.V. Sanjay Kumar

The State of Tamil Nadu had enacted certain land acquisition enactments in pursuance of its various social welfare schemes, in exercise of powers conferred under Entry 42, List III of the Seventh Schedule to the Constitution of India (hereinafter “COI”). However, owing to the presidential assent they had received under Article 254(2) of the Constitution of India, they withstood on book as validly enforceable despite being repugnant to the Land Acquisition Act (LA Act, 1894). These State Acts were rendered void being repugnant to the new Land Acquisition Act, 2013 (hereinafter “LA Act 2013”), after its enactment. The LA Act of 2013 was amended by the State of Tamil Nadu, which also received presidential assent on 1-1-2014. These enactments were laid to challenge on various grounds before the High Court, which repelled all the writ petitions. The following issues essentially arose before the court:

6. … 1.”Are the State enactments void because of inherent arbitrariness?

2. Did the President of India fail to apply his mind while granting assent to Section 105-A?

3. Did the impugned State enactments become repugnant once the Parliament “made” the new Land Acquisition Act. If so, did the presidential assent to Section 105-A inserted by Tamil Nadu Act (1 of 2015) revive the three Acts?

4. Are the provisions of Sections 105-A(2) and (3) mandatory, and if so, whether non-compliance with these provisions (is, sic) fatal to the validity of these enactments.

Though findings on all issues were returned against petitioners/landowner by the High Court, on the 3rd issue, the writ petitions were accepted in favour of the landowners holding that since the enactments were not re-enacted, and not reconsidered by the President, mere insertion of Section 105-A in the new LA Act was inadequate. On this score and ground accordingly, the 3 State Acts were held void since Section 105-A did not resurrect them and was a mere dead letter. During the pendency of special leave petitions, all the 3 enactments in question were revived and enacted, through the assent of the President under Article 254(2) of the Constitution of India to be applicable retrospectively.

Since the 3 Acts were re-enacted and reimplemented post grant of presidential assent, therefore the issues became academic and the only issue which the Supreme Court proceeded to examine was whether the T.N. Acquisition Acts and the Highways Act are void owing to inherent arbitrariness and infringement of Article 14 of the Constitution of India. It was asserted that owners whose lands are acquired under the Highways Act (State Legislation), vis-à-vis those whose lands are acquired under the new LA Act, 2013, are treated on different footing, with the former being denied higher compensation on the same terms, compared to the latter. The classification was thus unreasonable leading to violation of Article 14 of the Constitution of India. The Court distinguished the judgments of P. Vajravelu Mudaliar v. Collector (LA)121, Commr. and Collector, Kamrup v. Durga Nath Sarma122, and Nagpur Improvement Trust case123, holding that in all these cases validation of repugnant State law under Article 253(2) of the Constitution of India by obtaining presidential assent did not happen and therefore the argument of discrimination and violation of Article 14 was accepted. Referring to the judgment of State of Karnataka v. Ranganatha Reddy124, and Javed v. State of Haryana125, it was held that legislation enacted by the State in exercise of its plenary legislative power cannot be compared with the provisions of another legislation, even though pari materia, if it is enacted by Parliament, or by another State Legislature within its powers to legislate. The sources of power for both the legislations are different and so do differ those who exercise the power. Such twin legislations enacted by two different legislatures cannot be read conjunctly, nor comparatively for the purposes of finding out if they are discriminatory and Article 14 does not permit striking down of a law of one State on the ground that it is in contrast with laws of the Centre or of another State. Reference for buttressing this constitutional proposition was also made to the judgment of U.P. Avas Evam Vikas Parishad v. Jainul Islam126, as also Savitri Cairae v. U.P. Avas Evam Vikas Parishad127. The attack therefore launched against the T.N. Highways Act on the strength of disparity and discrimination in the norms and procedures prescribed therein in comparison with the new LA Act, 2013 was repelled.

The assent of the President resuscitates and operationalises a repugnant act or repugnant provisions of any Act, enacted by the State, otherwise repugnant to the provisions of parliamentary enactment. Merely because restrictions beneficial to landowners imposed upon the Government or land acquiring authority are not present in the T.N. Highways Act, but present in the LA Act 2013, cannot be a ground or reason enough to invalidate it. There is no possibility or room available to the State of Tamil Nadu for exercising arbitrary discretion in adopting one legislation or the other for the purposes of acquiring lands, as contended by the landowners. Since operation and effect of the new LA Act, 2013 is expressly excluded by the Validation Act of 2019, therefore post the procurement of presidential assent, State of Tamil Nadu would be bound to apply only the Highways Act for acquiring lands for the purposes reserved thereunder and cannot pick and choose for the applicability of new LA Act 2013. Accordingly, the SLP’s were dismissed.

*         *         *         *

*Expert in Constitutional, Civil & Commercial Laws and Practising Advocate at the Supreme Court of India.

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