landmark Constitutional law judgments

Part I of this article covered the Judgments delivered between January to April 2023. This part as a sequel takes forward and covers judgments from May to September 2023 inclusive of all the judgments that showcased consideration, interpretation, and evolution of important constitutional Law principles rendered by the Supreme Court.

The judgments are as follows:

(1) Adivasis for Social and Human Rights Action v. Union of India1

(Delivered on 10-5-2023)

Coram: 2-Judge Bench of Justices Abhay S. Oka and Rajesh Bindal

Authored by: Justice Abhay S. Oka

Two issues and grounds were raised in the civil appeal before the Supreme Court, which were as follows:

A. Whether once an area has been declared as a scheduled area under Clause 6(2) of the Fifth Schedule to the Constitution of India, only the members of Schedule Tribes (“ST”) become entitled to settle down to the complete exclusion of non-tribal members. Whether the non-tribal members lost their right to vote on such a declaration.

B. Whether parliamentary and State enactments, like the Representation of the People Act, 1950 or the Delimitation Act, 2002 ceased to apply to scheduled areas, post declaration by the Governor and in the absence of any notification making them applicable.

Examining Clause 5 of the Fifth Schedule of the Constitution of India, Court held that on declaration of any area as the scheduled area, the powers of the Governor are only to exclude the operation of any parliamentary or State enactment to the scheduled area, but till such exclusion through a notification duly issued, the parliamentary or the State enactment shall continue to apply. Further the Governor is only empowered to change or modify the provisions of the act or the Rules as he deems fit and necessary by issuing a notification. However, the said power cannot empower the Governor with the plenary powers to legislate or come up with new enactments all together contrary to applicable existing enactments.

It was further held referring to the Constitutional Bench judgment in Chebrolu Leela Prasad Rao v. State of A.P.2, that Governor cannot deal with the schedule area as per his whim and fancies, prevailing over the Constitution. The powers cannot supersede the fundamental rights guaranteed under Part III of the Constitution, to be exercised purely and subject only to the same and other provisions of Constitution of India. The power was never envisaged to be conferred as an arbitrary unguided power, but to be exercised in a rational manner keeping in view the objectives of the Constitution. Whilst holding so, the court drew distinction between previously existing Section 92(1) of the Government of India Act, 1935 and contrasted the same with the subsequently enacted Fifth Schedule to the Constitution of India. Accordingly, it was held that the right to settle and right to vote are governed by the RP Act and that every eligible voter is entitled to be registered in the electoral role of the constituency in which he is ordinarily residing. Thus, it cannot be contended that the right to vote is lost once the territory is declared as a scheduled area. The right to be ordinarily resident in such an area is not lost on non-tribals as the said right is conferred by the Constitution of India. Even the Delimitation Act is applicable and cannot be excluded in its operation in the said area, and no writ of mandamus can be issued for the reservation of the entire scheduled area in favour of the tribal candidates. Accordingly, the appeals were dismissed by the Supreme Court.

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(2) State (NCT of Delhi) v. Union of India3

(Delivered on 11-5-2023)

Coram: 5-Judge Bench of Justices Dr D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha

Authored by: Justice Dr D.Y. Chandrachud

Issue before the Constitution Bench was about control over “services” in the National Capital Territory of Delhi (NCTD), the Government of NCTD or the Lieutenant Governor (LG) acting on behalf of the Union Government. History of the provision “services” as provided under Entry 41 of the State List of Schedule VII to the Constitution was traced and discussed. How Article 239-AA is to be interpreted, was referred to the Constitution Bench about the scope of legislative and executive powers available to the Union vis-à-vis the NCTD was discussed. However, even after the Constitution Bench had answered the reference, the 2-Judge Bench again delivered a split verdict on whether “services” are excluded in view of Article 239-AA(3)(a) from the legislative and executive domain of GNCTD. The matter again travelled to the 5-Judge Bench.

On the interpretation of Article 239-AA by the Constitution Bench in 2018, the court stated the following:

(a) The Union Territory of Delhi was a sui generis model, wherein constitutional entrenchment of Legislative Assembly, Council of Ministers and Westminster style Cabinet System of Government were introduced and implemented. Therefore, the democratic and representative form of Government would run futile if Government of Delhi is not able to usher in policies and laws, being hindered by the restricted constitutional interpretations. A status similar to other Union Territories cannot be assigned to Delhi. Referring to various observations from the Constitution Bench judgment in State (NCT of Delhi) v. Union of India4, it was held that it is imperative to adopt an interpretation that upholds the spirit of the unique constitutional democratic mandate provided to the Government of NCTD with the inclusion of Article 239-AA.

(b) The Parliament has legislative competency to make laws on entries even on subjects mentioned in List II in case of NCTD, a dispensation contrary to what is followed in case of other States, List II being meant for respective State Legislatures. If Parliament makes a law in relation to any subject in Lists II and III, the executive power of the GNCTD gets delimited to the aforsesaid extent of the law enacted by Parliament. Otherwise, the legislative and executive power of the NCT extends to all subjects in Lists II and III except the three entries explicitly excluded by the article.

(c) The phrase “insofar as any such matter is applicable to Union Territories” is an inclusive phrase and cannot be treated as exclusionary and disabling in nature. It means that Legislative Assembly of NCTD shall have the power to legislate on any subject in the State or Concurrent List except the excluded subjects. It is to facilitate the automatic conferment of powers to make laws for Delhi except where an entry indicates that its applicability to Union Territories is excluded by implication on any express constitutional provision.

Referring to history, especially the Constitution (Seventh Amendment) Act, 1956, it was stated that erstwhile classification of States into various parts was done away , with the introduction of States and Union Territories, with the newly created Union Territories to be administered by the President acting through the administrator in terms of Article 231 of the Constitution of India. Through the Constitution (Sixty-ninth Amendment) Act, 1991, thereafter Article 239-AA was introduced and inserted, attributing a unique structure of governance on NCTD vis-à-vis other Union Territories. The Court referred to various other territories, States, which have received special treatment through a constitutional provision to hold that is extending a specific treatment to any specified State or territory is not unusual especially referring to Article 371 of the Constitution of India.

(d) The delicate balance between local interests and national interests is ably maintained by Article 239-AA, which was also dealt with adequately in the 2018 Constitution Bench judgment5. The Parliament has been endowed the plenary power to legislate on a subject in any of the three lists of Schedule VII for NCTD, which prevails over any law enacted by the Legislative Assembly, in case of repugnancy. Unlike Article 254, Parliament has in case of NCTD, the power to legislate even on subjects included under Lists 2 and 3. Thus, Article 239-AA adequately balances the interests of NCTD as well as the Union of India.

(e) Referring to the judgment of Advance Insurance Co. Ltd. v. Gurudasmal6, on the interpretation of Article 367, it was held that the term “State” in the Constitution must be read to include Union Territories, unless the context otherwise requires. The definition of “State” under Section 3(58) of the General Clauses Act, 1897 shall apply squarely to the interpretation of Article 239-AA.

(f) The phrase “Subject to the provisions of this Constitution”, is not uniquely employed under Article 239-AA but employed at multiple other places in the Constitution of India. However, it is to be harmonised in its contents to those of other entries so that exercise or existence of other provisions is not rendered nugatory. The usage of such phrase is to give effect to underlying principles in the Constitution and not to defeat them and exercise of legislative powers must be in sync with the basic structure of Constitution of India.

(g) Court held that the Constitution of India is not unitary in nature, but federal. Referring to the speech of Dr B.R. Ambedkar in the Constituent Assembly, it was stated that States are not the agencies of Union Government, nor dependent on them for their legislative or executive authority, but are co-equal in this matter. Even though the NCTD could not be accorded the status of State, the concept of federalism would still be applicable to NCTD. The LG was held by the Court to be authorised to exercise his discretion only in two classes of matters:

(h) Firstly, where the matter deals with issues which are beyond the power of NCTD, the powers be delegated by the President to the LG. Secondly, whereby under any law, he is required to exercise his discretion or he is exercising judicial or quasi judicial functions. Other than this, it is in the executive domain of the NCTD and the elected Government to take decisions being empowered constitutionally in this regard. The phrase “person serving in connection with the administration of NCT” shall refer to those persons under Rule 46 whose administration is linked with public order, police and land, subjects outside the domain of NCTD.

(i) The Court also examined the triple chain of accountability of civil servants in a cabinet form of Government and the role of Civil Services in the modern Westminster model of Government. Part XIV of the Indian Constitution is dedicated to “services”. Referring to the judgment of Jaipur Development Authority v. Daulat Mal Jain7, it was held that inidividual minister is answerable and accountable to the people for the acts of the officials working under him and owes the responsibility to the electors for all the actions taken in the name of the Governor. In turn, the Civil Service Officers in a federal polity are accountable primarily to the democratically elected Government and Ministers. If such accountability is taken away, then the principle underlying the triple chain of collective responsibility would become redundant. For this reason, therefore, the residents of the capital city must have a voice in how they are to be governed and it is the responsibility of the Government of NCTD to give expression to the will of people of Delhi, under whose control must lie the “services”.

The Court held that legislative power cannot be conflated on the ground that it is not exercised. Referring to the judgments of State of Bihar v. Kameshwar Singh8, and State of Haryana v. Chanan Mal9, it was held that legislature is never under an obligation to make a law in exercise of that power, nor can any court of law enforce any such obligation. The exercise of power of legislation is entirely different from existence of power to legislate vested on the Parliament. Referering to the scheme of Article 309 of the Constitution of India, it was held that the legislative field indicated under it is same as Entry 71 of the Union List or Entry 41 of the State List of Schedule VII. The power of the President or Governor to make any laws is a stop gap arrangement until provisions are made in this behalf by the appropriate legislature. It is transitional and therefore Article 309 does not in any way restrict the power otherwise available to the legislature, nor can it be substitutive of the same. The power of NCTD to legislate on “services” is never excluded, merely because the President has made Rules under Article 309 of the Constitution of India.

The Court also laid down the tests for determining when and whether legislation by the NCTD creates a “service” under Entry 41 of List II or not. Referring to the Constitution Bench judgment in State of Gujarat v. Raman Lal Keshav Lal10, it was held that administration of a “service”, under a state broadly involves following functions:

(i) the organisation of the Civil Service and the determination of the remuneration, conditions of service, expenses and allowances of persons serving in it;

(ii) the manner of admitting persons to the civil service;

(iii) exercise of disciplinary control over members of the service and power to transfer, suspend, remove or dismiss them in public interest as and when occasion to do so arises.

Therefore if any legislation provides for the aforesaid facets, then it is clearly a legislation (post satisfaction of the ingredients mentioned above) falling under Entry 41, List II. The Court examined the Delhi Fire Services Act, 2007 and Court held that the said Act of 2007 and the Rules framed thereunder provide comprehensively for posts, their recruitment process, salary and allowance, dismissal, power and control, which are constituents of “service” under Entry 41 of State List.

(j) The legislative and executive power of NCTD were held to be extending over all classes of services such as IAS or Joint Cadre Services, relevant for day-to-day implementation of policies and vision of NCTD, even if not recruited by the latter. The posting within the State Cadre as well as the Joint Cadre of constituent State shall be made by Government of that State, that is by the duly elected Government. “The reference to the State Government in relevant rules of All India Services or Joint Cadre Services of which NCTD is a part, shall therefore mean the Government of NCTD for all intended purposes”. Accordingly the Constitution Bench answered the reference as above.

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(3) Subhash Desai v. Governor of Maharashtra11

(Delivered on 11-5-2023)

Coram: 5-Judge Bench of Justices Dr D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha

Authored by: Justice Dr D.Y. Chandrachud

Reference to the Constitutional Bench of this Court arose from a 3-Judge Bench judgment framing the following issues for the Constitution Bench to be decided:

A. Whether a notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by this Court in Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly12. Nabam

B. Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the High Courts or the Supreme Court, as the case may be.

C. Can a court hold that a member is “deemed” to be disqualified, by virtue of his/her actions, absent a decision by the Speaker.

D. What is the status of proceedings in the House during the pendency of disqualification petitions against the members.

E. If the decision of a Speaker that a member has incurred disqualification under the Tenth Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition.

F. What is the impact of the removal of Para 3 of the Tenth Schedule.

G. The scope of the power of the Speaker to determine the whip and the leader of the House? What is the interplay of the same with respect to the provisions of the Tenth Schedule.

H. Are intra-party decisions amenable to judicial review? What is the scope of the same.

I. The extent of discretion and power of the Governor to invite a person to form the Government, and whether the same is amenable to judicial review.

J. The is the scope of the powers of the Election Commission of India with respect to the determination of a split within a party.

In Nabam Rebia case13, it was held that a Speaker cannot adjudicate upon disqualification petitions, when a notice of intention to move a resolution for the Speaker’s removal from office is issued. On the first issue, it was held that Nabam Rebia case14 does not apply to the factual matrix of the present case. However, it was found that Nabam Rebia case15 is in conflict with Kihoto Hollohan v. Zachillhu16 where it was held that there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the Tenth Schedule. Further, the position of Nabam Rebia case17 could be misused by defecting MLAs while leaving the Speaker without a remedy in case of improper removal, disrupt the functioning of the Tribunal under Para 6 of the Tenth Schedule, and create a constitutional hiatus in the functioning of the Tenth Schedule and therefore the court referred the judgment to a 7-Judge Bench.

On the second issue, the Court held that the Speaker is the appropriate constitutional authority vested with the power to adjudicate matters of disqualification. The Court relying on Kihoto Hollohan case18 and Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly19 held that the Speaker is expected to act fairly, independently and impartially and his actions are amenable to judicial review, however, the court cannot by itself decide on matters of disqualification under Article 226 or Article 32.

On the third issue, it was held that in Article 190(3) the term “thereupon” denotes that the seat only becomes vacant after the Speaker decides the disqualification petition, not otherwise automatically upon resignation or any other reason and therefore till the decision of the Speaker is declared, the legislator is entitled to his membership of the house and all rights connected therewith.

On the fourth and fifth issue, it was held that Article 189(2) only applies when it is subsequently discovered that an MLA is not entitled to vote. Disqualification only applies prospectively, the actions taken by the legislators during the pendency of disqualification proceedings are irrevocable and the decision of the Speaker does not relate back to the date, when the MLA indulged in prohibitory conduct.

On the sixth issue, it was held that after the deletion of Para 3, the only defence against disqualification under the Tenth Schedule that remains is a merger of the defecting faction with another party. The defence of a “split” is no longer available to members who face disqualification proceedings any any other interpretations would defeat the purpose of deletion of Para 3. Further, the Election Commission of India (ECI) is the sole authority that can decide disputes between rival factions claiming to be the same party under the Election Symbols (Reservation and Allotment) Order, 1968 (“Symbols Order”).

On the seventh issue, the Court dismissed the contentions of the respondents that the terms “political party” and “legislature party” are inextricably intertwined. The Court held that the distinction is made clear in the definition clause and the Tenth Schedule would be unworkable without recognising this distinction.

In the instant case, the Shiv Sena political party due to internal disputes split into two factions- the faction led by Mr Uddhav Thackeray (petitioners) and the faction led by Mr Eknath Shinde (respondents). Based on the resolution of one faction, the Deputy Speaker replaced the leader of the legislative party with Shri Eknath Shinde and the Chief Whip of Shiv Sena Legislative Party with Shri Bharat Gagavale which the Court held to be illegal. The Court held that the Speaker should have conducted an independent enquiry to identify the Whip authorised by the Shiv Sena political party, not simply a faction of the Shiv Sena political party.

On the ninth issue, relying on Justice Dr D.Y. Chandrachud’s dissent in K.S. Puttaswamy (Aadhaar 5-J) v. Union of India20, it was held that Article 212 cannot be interpreted as placing all procedural infringements beyond the pale of judicial review and such an interpretation would completely disregard the importance of legislative processes in a constitutional democracy. Further it was held that Ramdas Athawale v. Union of India21, cannot be interpreted to mean that all procedural infringements are not subject to judicial review. The Court distinguished between irregularity and illegality of procedure based on two factors: (i) the nature of the procedure which was violated; and (ii) the impact of such a violation on democratic ideals and held that procedural infringements would in fact vitiate the proceedings based on their purpose and the impact of their infringement on the democratic functioning of Parliament.

On the tenth issue, it was held that Para 15 of the Symbols Order gives the ECI the power to determine whether one or none of the rival sections or groups is the recognised political party and such decision is binding on all rival sections and groups. Relying on Sadiq Ali v. Election Commission of India22 it was held that the ECI does not only determine which faction represents a political party, but also which faction is the political party itself entitled to the party symbol.

The Court further held that the decision of the ECI would have no bearing on the disqualification proceedings, since it is prospective in nature and neither of the constitutional proceedings will be stayed for the other.

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(4) Animal Welfare Board of India v. Union of India23

(Delivered on 18-5-2023)

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

Authored by: Justice Aniruddha Bose

Pursuant to the judgment in Animal Welfare Board of India v. A. Nagaraja24, three State Amendments were made to the Prevention of Cruelty to Animals Act, 1960 (“PCA Act”) and the rules framed thereunder in Maharashtra, Karnataka and Tamil Nadu. These validating enactments essentially allowed the practice of “Jallikattu” in Tamil Nadu, “Kambala” in Karnataka and “bullock cart race” in Maharashtra, which were previously disallowed by the judgment in A. Nagaraja case25. Reference to the Constitution Bench in the instant case arose from a batch of WPs and PIL challenging these State Amendments.

The Court first dealt with the issue of animal rights and to what extent these rights are conferred. It was held that in A. Nagaraja case26, the Supreme Court only recognised the statutory rights of animals under Sections 3 and 11 of the PCA Act, and not as their fundamental rights. It was held that the fundamental rights of animals cannot be recognised and therefore Article 14 will not apply to them.

Relying on State of U.P. v. Babu Ram Upadhya27, the Court held that in order to appreciate the true scope of the amending Acts, the amending Acts should not be examined in isolation from the rules framed thereunder by the Maharashtra and Tamil Nadu Governments. Further, the notification published by the Karnataka Government ought to be accorded the same status as a rule.

The Court further held that it was satisfied that the large part of pain-inflicting practices, as they prevailed in the manner these three sports were performed in the pre-amendment period have been substantially diluted by the introduction of these statutory instruments and therefore the conditions under which A. Nagaraja case28 was delivered cannot be equated with the current situation.

On the issue of arbitrariness, the Court held that the Amending Acts cannot be struck down for being arbitrary or violative of Article 14 as no irrational classification as regards these bull sports has been made. Further, the Court held that, in case of animal rights the focus shifts from “causing pain and suffering” to “degree of pain and suffering to which a sentient animal is subjected to while being compelled to undertake certain activities for the benefit of human beings”. The Court held that this balancing exercise which has a societal impact should be left for the legislature to decide upon and therefore did not comment on the reasonableness of the amending Acts.

The Court held by applying the principle of “pith and substance” that the amending legislation is relatable to Entry 17 of the Concurrent List (prevention of cruelty to animals) and there was no flaw in the process of obtaining Presidential assent. Therefore, the State Legislature did not overstep its jurisdiction and encroach upon the jurisdiction of the Centre/Union.

Finally, the Court held that the Amending Acts cured the defects pointed out in judgment of A. Nagaraja case29 and therefore they were not contrary to the ratio of the aforementioned judgment amounting to judicial overruling. The Court upheld the amending Acts and directed that the law contained in the Act/Rules/notification shall be strictly enforced by the authorities and accordingly all the WPs were disposed of.

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(5) All India Judges Assn. v. Union of India30

(Delivered on 19-5-2023)

Coram: 2-Judge Bench of Justices Dr D.Y. Chandrachud, and V. Ramasubramanian

Authored by: Justice Dr D.Y. Chandrachud

The matter related to implementation of Seventh Pay Commission to judicial officers serving in the judicial services. The Seventh National Judicial Pay Commission (SNJPC) furnished its report proposing and offering several suggestions for revision of pay scale and allowances payable to judicial officers. Pay scale, allowances, pension and family pension. Five principles were discussed in relation to judicial pay, pensions and allowances, which were as follows:

  1. Uniformity in designations in service conditions: The judiciary in the country is a unified institution judicially, though not administratively and this uniform designations in hierarchy with uniform service conditions are unavoidable necessary consequences.
  2. Separation of powers and comparison with political executive: There cannot be comparison of legislative or executive branch with the judicial officers or the pay structures applicable to them. Financial implications or lack of funds cannot be treated as grounds for non-implementation of reports of pay commissions. Various orders of the Supreme Court in this regard directing the Central and the State Government to implement the pay commissions reports were referred to, rejecting the argument of lack of financial resources.
  3. Independence of the district judiciary is part of the basic structure.

  4. Ensuring judicial independence and access to justice towards ensuring implementation of Part III of the Constitution of India: Referring to Anita Kushwaha v. Pushap Sudan31, it was held that the right of free and fair trial forms part of Articles 14 and 21 of the Constitution of India and that access to justice inheres under the same. This right includes all the necessary prerequisites of the court, the infrastructure, and an unbiased, impartial, and independent Judge.
  5. Equivalence of judicial functions of district judiciary and higher judiciary: A uniform multiplier must be used and applied for uniform increment in pay for both the district as well as the higher judiciary because all the Judges across the hierarchy of courts discharge the same essential function of adjudicating disputes impartially and independently. Revision of pay of Judges of High Court should be proportionate and commensurate to the upward revision of pay of judicial officers of the District Court.

The court accordingly issued the following directions towards implementation of various recommendations on pay of the SNJPC, which were as follows:

  1. Redesignation of judicial officers in conformity with commonality on an all-India pattern, including bringing them under the same umbrella and giving a uniform nomenclature.
  2. New pay structure as per the pay matrix model.
  3. Multiplier as prescribed and its uniform application to both the district as well as higher judiciary, as also implementation of increments, pension, etc.
  4. Inclusion of years and period of practice at the Bar prior to joining the judicial services to be included in the fixation of pension on retirement of the judicial officer concerned, and the gratuity thereof.

There were multiple other directions issued with respect to the revision of pay, salary, increments and fixation of pension as proposed by the SNJPC. All the states were directed to amend the Service Rules of the judicial officers across all jurisdictions. All the High Courts and competent authorities were directed to amend, wherever applicable, to bring the respective service rules governing lower judiciary in conformity with the recommendations accepted by the Supreme Court within a period of 3 months. The writ petition however has been kept pending for ensuring compliance with the directions issued by the court.

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(6) Coal India Ltd. v. CCI32

(Delivered on 15-6-2023)

Coram: 3-Judge Bench of Justices K.M. Joseph, B.V. Nagarathna and Ahsanuddin Amanullah

Authored by: Justice K.M. Joseph

The solitary issue canvased before the court was whether Competition Act, 2002 applies to Coal India Limited (“CIL”) established under the provisions of the Coal Mines (Nationalisation) Act, 1973 (“Nationalisation Act”). Whether in view of Article 39(b) r/w Article 31-B of the Constitution of India, CIL being a statutory authority established with an exercise of nationalisation of coal undertakings would be immune from allegations of adopting monopolistic anti-competitive practices/decisions, when it comes to, falling under the preview of the Competition Commission of India (CCI).

The Court whilst answering the issue traced the history of Monopolies and Restrictive Trade Practices Act, 1969 which was the predecessor act of the CCI Act, 2002. It also traced the history of enactment of the Nationalisation Act, as also the necessity for establishment of CIL as the national organisation controlling coal mines and collieries, being preceded by collieries control orders from time to time. With the advent of Nationalisation Act, coal mines across the country, with the orders of Central Government passed under the Act came to be vested in the CIL, which possessed general superintendence, directions, control and management of the affairs and business of the coal mines. Section 28 of the Nationalisation Act provided for the “Effect of this Act on other laws”. Whilst adumbrating the replacement of the MRTP Act, 1969 by the CCI Act, 2002, the Court referred to aims, objectives and legislative intent behind the same, stating it to be in the interests of the consumer, to cover even the public enterprises in the matter of production of goods and service delivery. Comprehensive reference was made by the court to various developments preceding enactment of the CCI Act 2002, to hold that even PSU’S would fall under and within the preview of enquiry and investigation of the CCI.

Analysing the Nationalisation Act, it was held that a monopoly undoubtedly was legislatively enacted by the Parliament, which was insulated by virtue of Article 31-B and it was for giving effect to the principles enshrined under Article 31-B of the Constitution of India. Thus, the Court enumerated the background history preceding the enactment of the Nationalisation Act to hold that it has been established to avoid exploitation of labour, fair and equitable management of coal mines whilst at the same time ensuring growth, development of residents of the nearby areas or regions of the coal mines. It was thus held that Section 4 r/w Section 19 obligates the CCI to take into consideration the factors and legislative history behind enactment of the Nationalisation Act and thus declaration of monopoly in favour of CCI under the Act. Therefore, wherever monopoly is being created or exercised by CIL in terms of powers conferred under the Act, CCI must not proceed as if it is proceeding against any private enterprise.

However, the Court at the same time held that CCI would be well under its powers to enquire under Section 4 of the CCI Act to enquire whether there has been abuse of the dominant position by the CIL, by examining certain acts and omissions. Thus the argument of CIL that the CCI Act would not apply on them nor CCI can exercise any jurisdiction was repelled, whilst holding that the decisions of the CIL must be examined by the CCI in the backdrop of achievement of goals under Article 39(b) of the Constitution of India. Since the Parliament was aware of the Nationalisation Act at the time of enactment of the CCI Act, 2002, therefore non-exclusion by the Parliament of the same would lead to inference that Parliament never intended to exclude the applicability of Section 4 of the CCI Act to CIL. Referring to the judgments of Sanwarmal Kejriwal v. Vishwa Coop. Housing Society Ltd.33, Employees Provident Fund Commr. v. Official Liquidator34, it was held that the legislature never intended to exclude the operation of CCI to the Nationalisation Act and in such circumstances the latter enactments must prevail in case of overriding provisions contained under both the enactments.

The civil appeals were accordingly disposed of with directions to CCI to examine the allegations of monopolistic and anti-competitive practices leveled against CIL, in the backdrop of the directions and observations in the judgment along with other ancillary connected directions.

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(7) RBI v. A.K. Nair35

(Delivered on 11-5-2023)

Coram: 2-Judge Bench of Justices S. Ravindra Bhat and Dipankar Datta

Authored by: Justice Dipankar Datta

Concurring Opinion by Justice S. Ravindra Bhat

The challenge was laid by Reserve Bank of India (RBI) to the judgment of Bombay High Court, which had directed the respondent RBI for granting notional promotion to the respondent, holding that he was entitled for relaxation of marks for consideration of promotion, being a person with disabilities (“PWD”). The respondent was having 50% disability of post-polio paralysis, who had applied for promotion to the post of Assistant Manager in RBI. Certain circulars were issued from time to time by the Department of Personnel and Training (DoPT) on reservations in recruitments and promotions in central organisations, providing for reservation in promotions, as also grant of relaxation in marks. However, since the same was denied to the petitioner, he had no option but to approach the High Court for seeking appropriate relief. The High Court directed for the consideration of the case of the promotion of the petitioner.

Referring to the judgments of Rajeev Kumar Gupta v. Union of India36, Siddaraju v. State of Karnataka37, the Supreme Court held that reservations to PWD are horizontal in nature and must be computed based on available vacancies in the feeder post, irrespective of the nature of recruitment, whether direct recruitment or recruitment through promotion. Mere absence of an express mandate in Chapter VI of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995), would not come in the way of providing reservation to PWD in various government posts and departments. “Promotion” is included in the word “appointment”, which is quite broad and includes “appointment” by “direct recruitment” as well as through “promotion”. Thus, the reservations of PWD applies even to promotions under the old dispensation as well, though the said principle was implicit in the PWD Act, 1995, however it was made explicit by the latter enactment of the PWD Act, 2016, replacing the former. The court delved into two broad issues, which were as follows:

A. Whether the RBI by failing to consider Mr Nair for promotion, a right guaranteed by Article 16 of the Constitution, on application of relaxed standards committed an illegality?

B. Provided the answer to the aforesaid question is in the affirmative, to what extent relief can legitimately be extended to Mr Nair?

Referring to Article 37 of the Constitution of India, it was held that though directive principles of State policy are not enforceable, they are fundamental in the governance of the country and that the State has a duty to apply these principles in making the laws. Reservation for PWD is available for appointment in all the Groups “A”, “B”, “C” and “D” posts of the RBI. Though when Mr Nayar, the respondent participated in the promotion process, there was no authoritative decision or judgment of the Supreme Court providing for reservation even in promotions for Group “A” posts, however since interpretation of any provision of the law by the court relays back to the date of the enactment of the law itself, and not to the date when the judgment is rendered, therefore respondent Mr Nayar shall be entitled for the benefit of the same. Duty of the court is not to legislate, but to interpret the law, though in an appropriate case the court may direct that its interpretation would have effect prospectively.

Thus, it was held that RBI was not justified in not condoning the shortfall of 3 marks taken by the respondent. PWD are entitled to be judged by the same relaxed standards that are applied to SC/ST candidates and relaxation of marks must be there for them to compete. Exercising inherent powers under Article 142 of the Constitution of India, accordingly the Supreme Court directed RBI to grant notional promotion to the respondent on the post of Assistant Manager (AM), Grade A effective from the date of filling and presentation of writ petition before the High Court, as also other resultant monetary benefits. The SLPs were dismissed so preferred at the behest of RBI.

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(8) Jaya Thakur v. Union of India38

Coram: 3-Judge Bench of Justices B.R. Gavai, Vikram Nath and Sanjay Karol

Authored by: Justice B.R. Gavai

Batch of writ petitions challenged the validity of the Central Vigilance Commission (Amendment) Act, 2021 (“CVC Act”), the Delhi Special Police Establishment (Amendment) Act, 2021 (“DSP Act”) and the Fundamental (Amendment) Rules, 2021 (“FR Rules”). The challenge was principally laid to with the continuation of the term and tenure of Mr Sanjay Kumar Mishra as Director ED. Tracing the legislative history of the amending enactments, it was argued that earlier the Supreme Court had directed the Central Government to not extend the tenure of currently serving director ED beyond a particular time period, viz. July 2022. However, vide the amending enactments, it was stipulated that the term of Director ED shall be maximum of 5 years, with the process of reappointment on expiry of every 2 years. The Court delved into 2 primary questions in the judgments, which were as follows:

  1. As to whether the amendment to Section 25 of the CVC Act by the Central Vigilance Commission (Amendment) Act, 2021 and to sub-section (1) of Section 4-B of the Delhi Special Police Establishment Act by the Delhi Special Police Establishment (Amendment) Act, 2021 and the amendment in clause (d) of Rule 56 of the Fundamental Rules, 1922 by the Fundamental (Amendment) Rules, 2021 are liable to be held ultra vires and set aside?
  2. As to whether the extensions granted to the tenure of Respondent 2 as Director of ED for a period of one year each vide orders dated 17-11-2021 and 17-11-2022 are legal and valid, and if not, whether liable to be set aside?

Referring to the judgment of Vineet Narain v. Union of India39, it was held that the Supreme Court had directed for ensuring independence of CBI and appointment of an independent vigilance watchdog, in pursuance of which the Central Government enacted the CVC Act, 2003. Prior to the amendment, the minimum tenure of Director ED was 2 years. However, through the amending provisions, the tenure was capped at a maximum of 5 years with the provision for reappointment after every 2 years.

On the issue of the constitutionality and validity of the amending Acts, referring to the judgment of Binoy Viswam v. Union of India40, and other host of judgments, it was held that statute enacted by Parliament or State Legislature cannot be declared unconstitutional lightly and that it should be established beyond any iota of doubt that violation of constitutional provisions by the provisions are so glaring that legislative provision cannot withstand scrutiny. Another ground of striking down any legislative provision is lack of legislative competence of the legislature to enact any law.

The amending Acts were held not to be meeting any of the grounds of challenge as to be declared unconstitutional, specifically in view of the composition of the Committee effecting appointments to the said post. Without the recommendation of the High-Powered Committee comprising CVCs and VCs, appointment could not be effected. The stringent provision and procedure both for the appointment and removal of CVS and VCs ensures that the in-built autonomy and independence of the appointing Committee. The reappointment or extension of tenure of Director of Enforcement follows the same procedure and thus cannot be said to be an automated process of reappointment. The appointments Committee is wider than that stipulated in the judgment of Vineet Narain case41. The extensions or reappointments can be granted only on the recommendations of the appointing Committee, that too after recording the reasons of public interest in writing, and thus reappointment/extension is not at the sweet will of the Government, but only after active recommendations of the Committee. Thus, arbitrariness in the exercise of powers cannot be inferred in the said exercise and amending Acts resultantly cannot be declared to be unconstitutional.

On the argument of legislative overruling of directions of the court, the Court held that parties to the proceedings in the previous round of judgment, viz. in Common Cause v. Union of India42, were the very same viz. the Director S.K. Mishra. Thus the writ of mandamus issued against the very same parties in one case must bind and be executed and cannot be nullified or overruled by a legislative amendment. Referring to the judgments of Madan Mohan Pathak v. Union of India43 and Cauvery Water Disputes Tribunal, In re44, it was held that legislature cannot set aside any individual decision inter partes and affect their rights and liabilities, whilst introducing amendments to any law. What the legislature can do is, it can change the basis on which the decision is given by the court, thus changing the law in general, affecting a lot of persons or events at large, but however cannot step into judicial power of the State, by functioning as appellate court or Tribunal. The mandamus issued by the court is binding on the parties before it and nullification of such mandamus by an enactment is an impermissible legislative exercise.

Resultantly it was held that though the Amending Acts were constitutional, extensions granted to R-2 Director of Enforcement were illegal and contrary to previous directions of the court. However, he was permitted to continue to hold office till the appointment of new incumbent, for which cut-off date was fixed to be 31-7-2023. The writ petitions are accordingly disposed of.

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(9) Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain45

(Delivered on 26-7-2023)

Coram: 2-Judge Bench of Justices J.B. Pardiwala and Manoj Misra

Authored by: Justice J.B. Pardiwala

The primary issue that was examined by the court was whether a petition under Article 136 of the Constitution of India must be entertained directly against the order passed by the NCDRC in the exercise of its appellate jurisdiction or will the petitioner be relegated to avail the remedy of filing writ petition under Articles 226/227 of the Constitution of India before the jurisdictional High Court. Analysing the jurisdiction of National Commission and State Commission under Sections 21, 23, 58, and 67 of the Consumer Protection Act, 1986 (“CPA”), it was interpreted that direct appeal to Supreme Court is provided only with respect to orders passed by NCDRC in exercise of its original jurisdiction and not in those cases where NCDRC is exercising appellate or revisional jurisdiction.

No further remedy of appeal is thus provided against orders passed by NCDRC in such proceedings. Referring to the judgments of “Pritam Singh v. State46, “Dhakeswari Cotton Mills Ltd. v. CIT47, it was held that Article 136 jurisdiction must be exercised and is available only when “question of law of general public importance” is involved in the petitions, not as a matter of routine. Article 136 is not designed to permit direct access to the Supreme Court, where other equally efficacious writ remedy is available before the High Court. Referring to the judgment of “Ibrat Faizan v. Omaxe Buildhome (P) Ltd.48, it was further held that where appeal before the NCDRC is preferred against the orders of the State Commission, then challenge to such orders of NCDRC be laid before the High Court only. National and the State Commission under the CP Act can be treated as “tribunals” vested by the statute with the powers to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them. Accordingly holding that remedy for the petitioners was available before the jurisdictional High Court, the SLP was disposed of with the liberty to approach the jurisdictional High Court under Articles 226/227 of the Constitution of India by the Supreme Court.

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(10) Dev Gupta v. PEC University of Technology49

(Delivered on 9-8-2023)

Coram: 2-Judge Bench of Justices S. Ravindra Bhat and Aravind Kumar

Authored by: Justice S. Ravindra Bhat

Challenge was laid to sudden imposition of minimum eligibility criteria of 75% aggregate marks as a precondition for the admission to engineering courses under the 2% sports quota. The constitutionality of the same was laid challenge on the ground of unequal applications of eligibility criteria applicable to other category candidates to the sports quota. The eligibility condition was stated to be unrealistically high for candidates competing under sports quota, who were bound to have not excelled in academics. Higher proficiency in sports concerned comes with lower academic qualifications and sports was the sheet anchor of arguments on behalf of the candidates. Analysing the constitutional jurisprudence underlying Article 14, the Court held that equality requires unequal treatment of unequals and those being brought or clubbed together must not be unequals. Referring to the statement of Ashutosh Gupta v. State of Rajasthan50, Roop Chand Adlakha v. DDA51, it was held that the process of classification in itself cannot be productive of equality or in that sense antithetical of equality. It must whilst recognising pre-existing inequality act in amelioration of the effects of the same and not aggravate it. “Process cannot defeat the purpose of law” was stated by the Court relying on the judgment of Subramanian Swamy v. CBI52.

Since the very basis of creation of sports quota is excellence in sports, the relevant consideration and basis of classification must be excellence in sports and participation at the national and international levels, whilst maintaining certain minimum academic standards. In the said classification unequal application of eligibility criteria has to be ensured, lest “wooden equality” regardless of inherent differences would usher in, resulting in violation of Article 14.

Eligibility criteria with higher marks leads to dissimilarity in treatment and egregious to the very purpose of creation of sports quota, but rather destructive of it. Resultantly it was thus held that remaining seats must be filled as per the Punjab State Sports Policy based on criteria laid down therein.

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(11) Pesala Nookaraju v. State of A.P.53

(Delivered on 16-8-2023)

Coram: 3-Judge Bench of Justices Dr D.Y. Chandrachud, J.B. Pardiwala and Manoj Misra

Authored by: Justice J.B. Pardiwala

Challenge was laid to preventive detention effected under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (“Act of 1986”). The Division Bench of the High Court rejected the writ petition and declined to quash the preventive detention order passed by the District Collector. Interestingly, the detention was affected in view of the involvement of the applicant in various cases and offences involving the collection and distribution of industrial liquor. The detaining authority classified the appellant as a “bootlegger” under Section 2(b) of the Act of 1986, and with a view to preventing him from acting prejudicial to the maintenance of public order, passed an order of preventive detention.

Various grounds of challenge were raised opposing the detention order. The Court analysed the submissions on behalf of both the parties and affirmed/upheld the detention order passed against the petitioner.

Court whilst examining the difference between preventive detention and post-trial conviction, held that preventive detention is for preventing any person from doing such acts as may be specified in the Act. It is qualitatively different from punitive detention and may not necessarily overlap with the prosecution, even if it relies on certain facts for which prosecution may be launched or may have been launched. Any order of detention can be made before or during prosecution and that pendency of prosecution is no bar on passing the order of detention.

Court, dealt with the first submission of the appellant that detention order passed for 12 months at a stretch is unsustainable, contrary to Section 3(2) and could have never been passed for a duration more than three months. The Court referred to its judgment in Cherukuri Mani v. State of A.P.54, interpreting Article 22(4) of the Constitution of India. It was held that Cherukuri Mani case55 does not lay down the correct law, wherein the Bench completely misread Section 3(2) of the Act of 1986. Section 3(2) was held to be with respect to the delegation of powers by the State Government upon the DM or Commissioner, and the period mentioned under Section 3(2) has no relevance at all to the period for which a person may be detained. Whilst deciding Cherukuri Mani case56, the 3-Judge Bench judgment in T. Devaki v. State of T.N.57 was overlooked, where it was held that period of delegation to the DM or Commissioner must not be for an unlimited period, but should be reasonably guarded. Section 3(2) had no correlation with the period of detention which the detenu may be subjected to. Once the detention order is confirmed by the State Government, the maximum period to which detention can continue is 12 months, which period is not required to be specified in the order of detention. Once the State Government is satisfied that it is necessary to do so, the detention can be subjected to a maximum period of 12 months subject to approval and confirmation by the State Government. The delegation of power can be continued from time to time and the detention order is not rendered invalid or illegal merely on the absence of specification of the period of detention in the order.

Referring to the judgment of Makhan Singh Tarsikka v. State of Punjab58, it was held that post detention, within the prescribed period, the matter must be referred and placed before the Advisory Board, which must decide upon the justification of any continued detention. Post approval of the Advisory Board, can the Government decide and specify the maximum period of detention to which the detenu may be subjected to. Thus for yet another reason, the detaining authority cannot specify the period of detention; that would amount to usurping the power of the State Government and Advisory Board, rather pre-empting them, and deciding upon the actual period of detention and specifying the same. Such is clearly not the scheme of Act of 1986, nor the constitutional intention behind Article 22(4). Referring to the judgment of Harpreet Kaur v. State of Maharashtra59, it was held that it is therefore futile to contend that order of detention gets vitiated if it is for a period of more than 3 months. Referring to the judgment of Abhay Shridhar Ambulkar v. S.V. Bhave60, dealing with detention under the National Security Act, 1980, it was held that detention requires subjective satisfaction of the competent authority and that State Government is expected to apply its mind, make a careful choice regarding the period during which such power shall be exercised by the subordinate officers, by delegating them the power to pass orders of detention. Subjective satisfaction cannot be lightly recorded by reproducing or elaborating on the clauses of the statute but must demonstrate anticipated or apprehended danger to public order at the behest of the detenu. There must not be any obscurity in thoughts or language, lest the detention order gets vitiated. Referring to Section 3(2) of the Gujarat Prevention of Anti-social Activities Act, 1985 and its interpretation in Navalshankar Ishwarlal Dave v. State of Gujarat61, the challenge to the detention order on the ground, it was held that to prevent anti-social and dangerous activities adversely affecting the maintenance of public order, the District Magistrate or Commissioner concerned within the local limits of the respective jurisdiction can be validly authorised to pass detention orders. The periodical review of delegation order by the State Government does not appear to be necessary or warranted in such situation.

The Court further held that Article 22(4) of the Constitution of India deals with the order of detention, having no concern with delegation of the power of detention by the State Government to any officers subordinate to it, like the District Magistrate or the Commissioner. Article 22(4) applies only at the initial stage of passing the order of detention, but not thereafter. Once the State Government on report of the Advisory Board passes the confirmatory order under Section 12 of the Act of 1986, then the same can be issued for a maximum period of 12 months from the date of detention. The State Government is not obligated to renew the order of detention every 3 months, once a confirmatory order on the opinion of the Board has been passed.

On the second submission, that registration of 4 FIRs in itself is not sufficient to arrive at the subjective satisfaction that the appellant was a bootlegger prejudicial to the maintenance of public order, the Court held that in all the 4 cases, chemical analysis report stated liquor samples to be unfit for human consumption and injurious to health. Outlining the difference between “law and order” and “public order”, whilst referring to the judgments of Brij Bhushan v. State of Delhi62, Romesh Thappar v. State of Madras63, and other judgments, it was held that “public order” is said to comprehend disorder of less gravity than those affecting security of State, law and order. It is one of the middle circles in the 3 concentric circles of law and order, public order and the smallest circle representing the security of State. Thus what is to be seen is not the nature or quality of the offence, but its degree and extent of reach upon society. Acts similar in nature, but committed in different contexts and circumstances might cause different reactions and therefore if there is a potentiality of the act to disturb the even tempo of the life of the community, then it is prejudicial to the maintenance of public order. The test therefore to be applied is whether the act of the detenu disturbed the flow, tempo or rhythm of the life of the community in the specified locality. Examining the conduct of the detenu in the aforesaid context, it was held that liquor sold by the detenu, being dangerous to public health on a large scale, became detrimental to public order. This attracted the provisions of the Act of 1986, and if the detaining authority was satisfied about existence of the material, then such material ought to have been provided to the detenu to make an effective representation.

Referring to hosts of judgment interpreting the import of “public order” occurring under Section 3(2), viz., Harpreet Kaur case64, Rashidmiya v. Police Commr.65, it was held that activities of the detenu in the present case had adversely affected the maintenance of public order, with the large-scale circulation of spurious liquor unfit for human consumption, that could result into loss of human lives. The analysis and satisfaction recorded by the detaining authority is of subjective nature, drawn on the basis of credible material, and thus in view thereof the detention order was affirmed.

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(12) Ameena Begum v. State of Telangana66

(Delivered on 4-9-2023)

Coram: 2-Judge Bench of Justices Surya Kant and Dipankar Datta

Authored by: Justice Dipankar Datta

The appeal was preferred against the judgment of the High Court dismissing writ petition seeking writ of habeas corpus and challenging the order of detention passed under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (“Act of 1986”). Earlier the detenu was subjected to detention under the category of “white collar offender”, which was however quashed by the High Court. Five FIRs were lodged and taken into consideration for the commission of offences by the Hyderabad Police, which detained the husband of the appellant.

The Court traced the history of contours of judicial review of any order of preventive detention. Referring to a long line of judgments from A.K. Gopalan v. State of Madras67, Shibban Lal Saksena v. State of U.P.68, it was held that an order of detention is liable to be quashed, if any one of the two or more grounds quoted for ordering detention was found to be illegal. It cannot be argued that detention would survive on the remaining grounds, if one or few of the grounds constituting the detention order are quashed. Referring to the judgment of Rameshwar Shaw v. DM, Burdwan69, it was held that satisfaction of the detaining authority cannot be based on vague grounds or any ground which the detenu was not provided with the opportunity to represent against. If the grounds served on the detenu for detention cannot possibly or rationally support the conclusion drawn against him by the detaining authority, then also the detention is liable to be quashed. Since preventive detention is largely precautionary, based on suspicion, therefore courts cannot investigate into circumstances of suspicion on which detention orders are based. However, the court can always examine whether requisite material has been considered by the detaining authority and satisfaction arrived at after weighing the said material. There must be a live and proximate link existing between the past conduct of a person, vis-à-vis the imperative need to detain him in presentai, and that a detention order cannot be based or founded on stale incidents or material.

Referring to the judgments of Sama Aruna v. State of Telangana70, Khaja Bilal Ahmed v. State of Telangana71, it was held that order of detention can be premised upon previous criminal antecedents only if there is a causal connection with the immediate need to detain individuals and that mere reference to pending criminal cases cannot account for requirements of Section 3. The same must be borne out in the order of detention. The Court laid down the following 10 tests, which must be adopted by the constitutional courts exercising writ jurisdiction while testing and examining the legality of orders of preventive detention to examine whether:

(i) The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied.

(ii) In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute.

(iii) Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires.

(iv) The detaining authority has acted independently or under the dictation of another body.

(v) The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case.

(vi) The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate.

(vii) The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale.

(viii) The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached.

(ix) The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation.

(x) The timelines, as provided under the law, have been strictly adhered to.

If the detention order fails to qualify any of the tests noted above, then it is liable to be set aside.

The Court resorted to 2 tests for testing upon the validity of the detention order in the case at hand:

(a) firstly, whether alleged acts and offences, the commission of which has been considered for passing the detention order are actually prejudicial to “public order”; and

(b) secondly, whether all relevant circumstances considered of whether extraneous factors were taken into consideration by the detaining authority insofar as detenu being a habitual offender is concerned.

On the first test, referring to the judgments of Ram Manohar Lohia v. State of Bihar72, Arun Ghosh v. State of W.B.73, it was held by the court that what is to be examined is the impact on the broader community or the general public evoking feelings of fear, panic and security. If the degree of disturbance and effect on community life is tangible, then public order is affected.

Court held that if the existing legal framework for maintaining law and order is sufficient to address offences or the acts of the detenu, so anticipated by the detaining authority, and there is no serious threat to public order, then detention order is unsustainable.

On the second test about the proper application of mind to all relevant circumstances, it was held that habituality of committing offence cannot in isolation be the basis of any detention order. If the habituality is creating any “public disorder”, then it will qualify as a ground to order detention, not otherwise. The court found that detenu was never found to have violated the conditions of bail or there was any allegation of not cooperating with the investigative process in relation to the offences registered against him. No application for cancellation of bail was moved by the State in any of the cases, where he was already released on bail by the competent courts. Thus, there was no necessity of resorting to extraordinary powers provided under the extraordinary statute. Referring to the judgments of Vijay Narain Singh v. State of Bihar74, Banka Sneha Sheela v. State of Telangana75, it was held that when a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of orders of preventive detention based on the very same allegations and charge, being tried by the criminal court. Thus detention order was held to be unsustainable on this score by the court. The court then examined the maximum duration for which a person can be preventively detained, whether it should be automatically the maximum period as the standard duration permissible or should be of a lesser period. Referring to the judgments of Fagu Shaw v. State of W.B.76, A.K. Roy v. Union of India77, it was held that merely because the maximum period of 12 months is specified under the statute, detaining authorities are under no obligation to direct that he shall be detained for a maximum period. The authority cannot whimsically or arbitrarily direct detention of the maximum period, but must act with reasonableness and fairness, with due recording of reasons for directing detention for the maximum period.

The Court held that administrative authority is under an obligation to give a reasoned decision in all the cases, and not only in those where the statute under which is acting requires it to assign reasons. Till and until the requirement to offer reasons has been dispensed with expressly or by necessary implication, it cannot be said that administrative authority is relieved of the obligation to record reasons. The period of detention must always be deciphered and decided, depending upon the objective sought to be fulfilled in every case, lest the Government could be accused of being unreasonable and unfair. In terms of Article 14 and also Article 22 of the Constituton of India, it is obligatory for the Government to offer sufficient reasons why retention for the maximum period is being directed.

In view of the consideration of the entire material constituting the detention order, therefore the Court quashed the said order detaining the husband of the appellant. The special leave petition was accordingly allowed.

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(13) State (UT of Ladakh) v. Jammu and Kashmir National Conference78

(Delivered on 6-9-2023)

Coram: Justice Vikram Nath and Ahsanuddin Amanullah

Authored by: Justice Ahsanuddin Amanullah

The SLP was preferred against the judgment of the Division Bench of the High Court of Jammu & Kashmir and Ladakh, dismissing the LPA filed by the appellants affirming the interim order of a learned Single Judge. The controversy related to non allocation of plough symbol to the writ petitioner for contesting the then upcoming general election of Ladakh Autonomous Hill Development Council, Kargil (“LAHDC”). The Single Bench through its interim order directed the petitioner to approach the Election Commission of India (ECI) for resolution in terms of Election Symbols (Reservation and Allotment) Order, 1968, and allowed the candidate of the petitioner party to contest on the reserved election symbol (plough) allotted to it.

The primary contention of appellants (UT LAHDC) was that ECI has no role to play, which holds elections only for parliamentary and State Assembly constituencies, and does not exercise any authority in relation to LAHDC. The Court agreed with the submission of Additional Solicitor General (ASG) that Union Territory of Ladakh (UTL) does not currently have a Legislative Assembly and thus ECI will not have any role to play.

On the objection of interference in electoral process in exercise of writ jurisdiction, it was held relying on the judgment Census Commr. v. R. Krishnamurthy79, that judicial restraint cannot and should not be such that it amounts to judicial abdication and judicial passivism. The duty of the High Court under the Constitution is to secure the inalienable fundamental rights. The appellants LAHDC were required to take a decision independently if ECI was not the competent authority. High Court under Article 226 of the Constitution of India was never precluded from issuing a direction of the nature issued by it, when such direction does not violate any statutory provision. Referring to the judgment of High Court of Tripura v. Tirtha Sarathi Mukherjee80 and Aish Mohd. v. State of Haryana81, it was held that High Courts under Articles 226/227 may direct fresh consideration of any representation or appropriate orders may be passed protecting the rights of the litigant before it, even when there are no statutory provisions for the same. Even in the absence of a statutory provision, a writ court cannot become helpless, despite the vast reservoir of powers which it possesses. Applying the said preposition in the case at hand, it was held that UTL not only denied R1 the plough symbol, but even defeated the directions passed by the Single Bench. The request for the allotment of plough symbol was bona fide, legitimate and just for the plain reason that writ petitioner respondent was a recognised State party in the erstwhile State of J&K and upon its bifurcation and creation of 2 new Union Territories. Even though ECI had not notified R-1 as a State party, it could not be said that R-1 was not entitled for the allotment of plough symbol in the factual background. Further there was no other conflict with any other stakeholder or any other party since plough symbol was neither a symbol exclusively allocated to any National or State party, nor was it one of the symbols shown in the list of free symbols. The non-allotment of plough symbol was neither supported by any reason, nor any legal impediment, nor was demonstrated to be contrary to any rules framed for conduct of elections in question. The request of writ petitioner respondent was thus not bereft of justification, as nothing substantive was shown to the court to indicate that the allotment of plough symbol would in any way be an infraction or go against the public interest.

Referring to the judgments of Nabam Rebia & Bamang Felix case82, it was held that just because of systemic delays in courts resulting in efflux of time, the cause does not get defeated, and courts are not rendered helpless to ensure justice to the party concerned. Powers of the court exist always to restore status quo ante if party is not at fault.

The Court further expounded the principle that merely because a question of law is referred to a larger Bench, it does not detract the power of courts to being back status quo ante and that mere reference to larger Bench does not unsettle declared binding law. Referring to the judgments of Harbhajan Singh v. State of Punjab83 and Ashok Sadarangani v. Union of India84, it was held that only because the correctness of a portion of judgment has been doubted by another Coordinate Bench, the same would not mean that court should wait for the decision of larger Bench, particularly when the same runs counter to the party seeking benefit of reference to larger Bench. It is not open to any court or a tribunal, unless specifically directly by the Supreme Court to await an outcome of a reference or a review petition and not apply the binding law already occupying the field as the case may be.

The Court accordingly expressing its dissatisfaction to non-compliance of directions of the learned Single Judge held that the relief sought by the writ petitioner respondent was required to be granted and by virtue of sheer non-compliance of the High Court orders pointing to pendency of appeals before the Higher Courts without any stay, the rights of the writ petitioner cannot be defeated. The Court also remarked stringently on High Courts not interfering in elections, by virtue of sheer passage of time.

The orders of the Single Bench of the High Court were thus held to be in aid of the electoral process and no fault could be found therewith the same. The plough symbol could not be opted for by any of the candidates of the writ petitioner party only because of uncertainty about its status. Referring to the judgment of Sadiq Ali case85, the Court held that the election symbol holds an important place as an identity for any candidate or a party for contesting the elections. Majority of voters in India are illiterate and therefore symbols or emblems belonging to political parties play a vital role in determining casting of votes by the voter.

Accordingly, the entire election process was set aside by the Supreme Court since timely decision could not be taken about allotment of election symbol to the original writ petitioners. The appeals preferred by Union Territory were dismissed with costs by the Supreme Court.

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(14) CBI v. R.R. Kishore86

(Delivered on 11-9-2023)

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

Authored by: Justice Vikram Nath

The solitary issue was whether a declaration made by the Constitutional Bench of the Supreme Court in Subramanian Swamy case87 about Section 6-A of the Delhi Special Police Establishment Act, 1946 (“the DSPE Act”) being unconstitutional can be applied retrospectively in context of Article 2o of the Constitution.

The Delhi High Court in case of the respondent accused had directed for his discharge from the criminal prosecution on the ground that previous sanction/approval of the Central Government under Section 6-A of the DSPE Act was not procured. CBI contended before the Supreme Court that Section 6-A(2) of the DSPE Act would be applicable not Section 6-A(1), when the High Court held that Section 6-A(1) was applicable. During the pendency of the appeal since 2007 before the Supreme Court, the Constitution Bench of the Supreme Court in Subramanium Swamy case88 struck down Section 6-A(1) as invalid and violative of Article 14(1) of the Constitution of India which had compartmentalised prior approval of Central Government for any enquiry or investigation against senior employees of level of joint Secretary and above of the Central Government. However the Constitution Bench did not decide whether declaration of invalidity or unconstitutionally of Section 6-A(1) of the DSPE Act would apply retrospectively or prospectively. It was contended by the CBI that the DSPE Act is a mere procedural provision and not a penal provision, would therefore not attract Article 20(1) of Constitution of India. Article 20 does not apply to procedural issues but only substantive penal provisions. The Court held that declaration of unconstitutionality of any statutory provision renders the said law to be non est, void ab initio or unenforceable from the date of its inception, subject to the legislature curing the basis of the said unconstitutionality.

The Court whilst analysing the arguments of both the parties delved into the history of single directive instructions issued by the Central Government regarding modalities prior to initiating of enquiry or registration of cases against certain categories of civil servants or officers of the Government. Referring to the judgments of Vineet Narain case89 it was stated that the provisions of the single directive were struck down as violative of Article 14. Section 6-A of the DSPE Act was enacted in response thereof, which was again struck down in Subramanium Swamy case90 as violative of Part III provisions of the Constitution of India. Examining the applicability of Article 20(1) of the Constitution of India to Section 6-A of the DSPE Act, it was stated that Section 6-A is a part of the procedure only in the form of a protection, and it does not introduce any new offence, nor it enhances the punishment or sentence.

Further Article 20(1) nowhere prohibits the convening of trial, but prohibits only imposition of sentence or conviction for any offence under any ex post facto law on any accused. Trial under a procedure different from the one when at the time of commission of an offence or by a court different from the time when the offence was committed is not unconstitutional, nor does it attract the infirmity provided under Article 20(1) of the Constitution of India. Referring to the judgments of Rao Shiv Bahadur Singh v. State of Vindhya Pradesh91 and other judgments of the SCOTUS, it was held that Indian dispensation differs from the American dispensation. Article 20(1) does not prohibit the substitution of penalty or sentence which is not higher or greater than the previous one or the modification of rigours of criminal law. Therefore, issue pertaining to applicability of Section 6-A(1) or Section 6-A(2) under reference before the Supreme Court does not relate to Article 20(1) at all was so held by the court. There cannot be any vested right for any right or a procedure, nor has been so provided under Article 20(1). Referring to the judgment of Union of India v. Sukumar Pyne92, it was held that only a new procedure is devised, which does not result into creation of a new offence. Thus Article 20(1) was held to have no applicability to the validity or invalidity of Section 6-A of the DSPE Act.

The Court further held that the Constitution Bench judgment of Subramanian Swamy case93 declared Section 6-A of the DSPE Act to be violative of Article 14 and struck it down, as a result of which it became null and void from the very beginning. Same is the mandate of Article 13(2) of the Constitution of India which makes any unconstitutional law to be void from its inception. Post Constitution’s enactment, laws violative of Part III are void from their inception by virtue of applicability of Article 13. Such laws are laws passed without legislative competence and cannot be protected by the “doctrine of eclipse”. Referring to the judgment of State of Manipur v. Surjakumar Okram94 it was held that where a statute is adjudged to be unconstitutional, it is as if it had never been on the statute book and it is void ab initio. It is non est for all purposes. The Constitution Bench held that the declaration made by the Supreme Court in Subramanian Swamy case95 will have retrospective operation and Section 6-A of the DSPE Act is held to be not enforced from the date of its insertion in 2003. The reference was accordingly answered.

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(15) Sita Soren v. Union of India96

(Delivered on 20-9-2023)

Coram: 5-Judge Bench of Justices Dr D.Y. Chandrachud, A.S. Bopanna, M.M. Sundresh, J.B. Pardiwala and Manoj Misra

The reference to the Constitution Bench was made in the context of the interpretation of ambit and scope of legislative protection available under Article 194(2) of the Constitution of India. The appellant being a member of the Jharkhand Legislative Assembly accepted bribe from an independent candidate for casting a vote in his favour but did not cast her vote in favour of the alleged bribe giver and instead casted her vote in favour of a candidate belonging to her own party. The High Court declined to quash the criminal proceedings instituted against her on the said allegation against which the matter travelled to the Supreme Court. The 3-Judge Bench referred for reconsideration the law laid down in P.V. Narasimha Rao v. State97, wherein it was held that immunity granted under Article 105(2) (correspondingly Article 194) of the Constitution of India would extend to cases where bribery for making a speech or voting in a particular manner in the house is alleged. However, the minority view of Justices S.C. Agarwal and A.S. Anand was to the contrary. Thus doubting the correctness of the view taken by the majority in P.V. Narasimha Rao case98, the proceedings travelled to the Constitution Bench of the Supreme Court. Counsel for both the parties, interestingly, before the Supreme Court argued that reference is not warranted as the correctness of the view was not laid to challenge by either of the parties, but only about its applicability to the fact situation at hand. However, the Supreme Court declined to accept the said contention, since the defence relied upon the decision of the majority, which itself required reconsideration. Referring to the settled position of judicial discipline that only a Bench of co-equal strength can express an opinion doubting the correctness of the view taken by an earlier Bench of co-equal strength, the Bench proceeded to determine whether prima facie reconsideration of judgment in P.V. Narasimha Rao case99 is warranted or not.

The minority opinion in P.V. Narasimha Rao case100 (penned by Justice S.C. Agarwal) had held that independence under Article 105 is to ensure the independence of the individual legislatures. However, it cannot be subversive of the rule of law, which is also an essential part of the basic structure of the Constitution of India. That construction must be adopted that strengthens the foundational features and the basic structure of the Constitution. The immunity from liability comes into play only, if speech has been made or vote has been given, and the same would not be available, if speech has not been made or vote has not been given, and through an agreement an illegal consideration is received by the MP/MLA concerned to exercise his right or right to speak or give his vote in a particular manner. The liability for immunity must be that which has arisen as a consequence of the speech made or vote that has been given in the Parliament and not before was the minority opinion of the Constitution Bench in the P.V. Narasimha Rao case101. The court further found that the opinion of Justice G.N. Ray concurring with the judgment of Justice S.C. Agarwal was overlapping and ad idem with the view of Justice S.P. Bharucha on the interpretation of Article 105(2), that represents the view of the majority of 3 Judges. Accordingly for the following 3 reasons and the grounds, reference was made to the larger Bench for reconsideration of the judgment of P.V. Narasimha Rao case102:

(a) Firstly, the interpretation of Articles 105(2)/194 of the Constitution of India must be guided by the text, context, and object and purpose underlying the provision, and the same does not appear to render immunity from the launch of criminal proceedings for a violation of criminal law that may arise independently of the exercise of the rights and duties as MP/MLA.

(b) Secondly, a cross anomaly would arise if immunity is extended to MP/MLA accepting bribe and voting in a manner as expected by the bribe giver, but not extending the said immunity to the said MP/MLA would accept the bribe, but not vote in the particular manner expected by the bribe giver. Giving of speech or giving of vote is an essential and integral part of the cause of the action for the proceedings giving rise to the law and therefore this anomaly must be avoided by interpreting the constitutional provisions appropriately.

(c) Thirdly, the offence of bribe giving is complete, when the bribe is given and it is not dependent on execution of the illegal promise or its performance by the Receiver, but this aspect has not been dealt with by the majority view in the judgment of P.V. Narasimha Rao case103.

In view of the foregoing 3 reasons and the grounds stipulated, reference was made to the 7-Judge Bench for reconsideration of the entire issue.

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(16) Celir LLP v. Bafna Motors (Mumbai) (P) Ltd.104

(Delivered on 21-9-2023)

Coram: 2-Judge Bench of Justices Dr D.Y. Chandrachud, J.B. Pardiwala

Authored by: Justice J.B. Pardiwala

SLP was preferred against judgment of the High Court at the instance of auction-purchaser. The High Court had allowed the writ petition filed by the borrowers, directing the bank to permit them to redeem the mortgage of the secured asset, after the auction proceedings had attained finality. Facts in short were that after the auction process was convened and concluded and the appellant deposited the entire total bid amount with the Bank, on the proposal for settlement attended by the borrowers, the High Court set aside the auction, permitting the borrowers to redeem their mortgage. The redemption of the mortgage of the secured asset which was so auctioned was thus ordered to the prejudice of the appellant auction purchaser, after deposit of the whole amount of the property purchased by them from the bank.

The Supreme Court framed the following issues for its consideration and resolution:

  1. Whether the High Court was justified in exercising its writ jurisdiction under Article 226 of the Constitution more particularly when the alternative remedy available to the borrowers had already been availed of?
  2. Whether the confirmation of sale by the Bank under Rule 9(2) of the Rules of 2002 invests the successful auction purchaser with a vested right?
  3. What is the impact of the amended Section 13(8) of the SARFAESI Act on the Borrowers’ right of redemption in an auction conducted under the SARFAESI Act? Or in other words, what is the effect of amendment to Section 13(8) of the SARFAESI Act read with Section 60 of the Act, 1882?
  4. Whether a bank after having confirmed the sale under Rule 9(2), can withhold the sale certificate under Rule 9(6) of the Rules of 2002 and enter into a private arrangement with a borrower?
  5. Whether the High Court under Article 226, could have applied equitable considerations to override the outcome contemplated by the statutory auction process prescribed by the SARFAESI Act?
  6. Whether the right of redemption of mortgage stood extinguished upon publication of notice of auction? Or in other words till what point of time the right of redemption of mortgage can be exercised in respect of secured asset under the SARFAESI Act?
  7. Whether the decisions of Telangana High Court in Concern Readymix v. Corporation Bank105, and Amme Srisailam v. Union Bank of India106 lay down the correct position of law?

Examining the legislative history and scheme of the SARFAESI Act, Court held that Section 13 of the Act contains the non obstante clause vide Sections 35 and 37 and it overrides all other enactments. Court referred to Section 60 of the Transfer of Property Act, 1882 (“TP Act”) as also multiple judgments to hold that mortgage created under the TP Act can be redeemed till it is extinguished either by the Act of parties or by decree of the court or on execution of registered sale deed by the mortgagee in favour of a third party. Referring to a long line of judgments in the context of redemption of mortgage under the SARFAESI Act 2002, the Court elaborated upon the pre amendment and post amendment interpretation of Section 13(8) of the SARFAESI Act. It was held that amendment to Section 13(8) of 2016 was intended to deal with the date when the secured creditor’s right completely extinguished the borrower’s right to redeem the mortgage. One line of judgments rendered by various High Courts, were referred to, holding that even post amendment, Section 13(8) did not result in disappearance of right to redemption of mortgage till the final sale certificate is issued in favour of the auction purchaser. The High Courts had taken a view that only on execution of formal deed of conveyance did the borrower’s right to redeem came to an end as Section 60 of the TP Act continue to apply to mortgages created under the SARFAESI Act.

However, taking a different view, Supreme Court held that in light of the 2016 amendment, borrower’s failure to pay the entire dues along with interests, cost etc before the publication of auction notices would sufficiently constitute extinguishment of right of redemption of mortgage by its conduct. It can be comfortably stated in view of amended Section 13(8) that intentional relinquishment of his right of redemption happens, when auction notice is published and the auction-purchaser is finalised with the conclusion of the bid. Referring to Sections 35 and 37 of the SARFAESI Act, as also the judgments in Madras Petrochem Ltd. v. Board for Industrial and Financial Reconstruction107, it was held that the SARFAESI Act has a unique scheme of overriding provisions, by virtue of Sections 35 and 37 provided under it. By virtue of Section 35 of the SARFAESI Act will prevail over all other enactments, that are inconsistent therewith, whereas by virtue of Section 37, its provisions shall be supplementary to enactments that are of the similar nature, going hand in hand. The remedies under the SARFAESI Act are in addition to remedies of recovery of outstanding dues provided under other enactments. Referring to the judgments of M.D. Frozen Foods Exports (P) Ltd. v. Hero Fincorp Ltd.108 and Vishal N. Kalsaria v. Bank of India109, the phrase “any other law” interpreting Section 35 of the SARFAESI Act was intended to mean any other law operating in the same field. Accordingly, it was held that provisions of Section 60 of the TP Act shall not be applicable to the SARFAESI Act in view of amended Section 13(8).

The Court also held the decision of the Telangana High Court in Amme Srisailam case110 to be incorrect and misplaced. Cut-off date fixed under the amended Section 13(8) as the date of publication of the auction notice is the date that leads to the extinguishment of the right to redeem the mortgage/security. Prior to its amendment, Section 13(8) retained the right akin to Section 60 of the TP Act and the conscious departure made by the legislature vide amendment must be respected. Any interpretation that declares a secured creditor not bound by Section 13(8) or discourages the auction purchaser to participate has the direct bearing on the efficient implementation of the enactment and result in recovery of public dues, which therefore must be avoided. Section 37 is restricted in its application to securities laws only and cannot therefore be extended to the TP Act. If the interpretations as laid down by various High Courts would be accepted, then it would have chilling effect on the implementation of the SARFAESI Act, wherein no auction conducted under the enactment would have any form of sanctity, with no person willing to come forward and participate in any auction due to fear in apprehension that despite being a successful bidder the borrower may come back any time and redeem the whole mortgage. Accordingly, the view taken by various High Courts were held to be erroneous.

Referring to the judgments of Valji Khimji and Co. v. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd.111, and K. Kumara Gupta v. Sri Markendaya and Sri Omkareswara Swamy Temple112, it was held that auction once concluded must be interfered only in exceptional circumstances as it carried it is own sanctity. It is the duty of the courts to zealously protect the auctions conducted and concluded in process. Referring to long line of judgments, vis United Bank of India v. Satyawati Tondon113, and Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir114, it was held that High Courts must loathe to interfere in statutory auctions convened under the SARFAESI or RDDB Act or interfering with the said process.

Referring to the judgments of National Spot Exchange Ltd. v. Dunar Foods Ltd. (Resolution Professional)115, it was held that where law is clear the consequence thereof must follow and the High Court has no option but to implement the law. The Bank in the present case was legally bound to issue the sales certificate as per Rule 96 of the Security Interest (Enforcement) Rules, 2002, on payment of the entire bid amount by the auction-purchaser. There was no question of cancellation of the sale after payment of the amount and that no equity could have prevailed or permitted the High Court to pass any order contrary to law. The High Court ignored and overlooked the vested right of the auction-purchaser of getting the property under his title and possession and thus equity could not have supplanted the law. Accordingly, the judgment of the High Court was set aside.

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(17) South Eastern Coalfields Ltd. v. State of M.P.116

(Delivered on 221-9-2023)

Coram: 3-Judge Bench of Justices Dr D.Y. Chandrachud, J.B. Pardiwala and Manoj Misra

The appeals arose against the judgment of the High Court of Madhya Pradesh, that had repelled the challenge to legality and validity of levy of terminal tax by the Municipal Corporation/Municipal Council on the transportation of various goods by the appellant Company. Terminal tax, as defined under Section 132(2) of the M.P. Municipal Corporation Act, 1956 and Section 127(1) of the M.P. Municipality Act, 1961 authorised the local authority to impose the said tax. The Court referred to Article 243-ZC occurring under Part IX-A of the Constitution of India stipulating that nothing contained in the part shall apply to the scheduled areas and tribal areas mentioned under Article 244 of the Constitution of India. Referring to the provisions of the Fifth Schedule of the Constitution of India, containing provisions of the administration and control the scheduled areas and Scheduled Tribes, it was stated that the Governor under clause (5) has the power to modify the applicability of any legislation of the State or Parliament or create exceptions to the same. However, the appellants never produced any notification indicating that the statue in question would not apply to the scheduled area in the State of Madhya Pradesh or that the provisions would apply with exceptions, disabling the power of the municipality to levy any tax. Unless any notification has been issued by the Governor to any specified effect indicating that either (i) a parliamentary or State law shall have no application to the scheduled area; or (ii) the parliamentary or State Legislation would apply subject to exceptions or modifications, there would be no hindrance in the application of law to the State.

If the Governor has not exercised his discretion available under Para 5 delimiting, modifying or accepting the applicability of any Parliamentary State law, then the same cannot automatically be inferred to be not applicable. Thus, the contention of the applicant South Eastern Coalfields Ltd. was repelled.

On the applicability of the interpretation of Article 243-ZC under Part IX-A, it was held that inapplicability of Article 243-X does not denude the state legislature to enact legislation for the State. A scheduled area governed by Article 244 of the Constitution of India is subject only to the provisions contained under Fifth Schedule, it cannot be inferred that the state enactments cease to apply to the scheduled areas. Accordingly, the appeals were dismissed by the Supreme Court.

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(18) Joseph v. State of Kerala117

(Delivered on 21-9-2023 )

Coram: 2-Judge Bench of Justices S. Ravindra Bhat and Dipankar Datta

Authored by: Justice S. Ravindra Bhat

The petitioner by filing writ petition under Article 32 of the Constitution of India sought appropriate directions to the State Government to prematurely release him, having been in custody for over 26 years and having served a sentence of over 35 years (including over 8 years of remission earned). The petitioner was convicted and sentenced for offences committed in 1996 under Sections 302 and 392 of the Penal Code, 1860 for the offence related to raping, robbery and murder of his sister-in-law. It was admitted between the parties that the petitioner had completed over 26 years of actual imprisonment and that petitioner’s case had been considered by the Advisory Committee/Jail Advisory Board, which had recommended for premature release. However, the State Government rejected the request for premature release on all the three occasions, on the ground that guidelines and the applicable rules restrict the discretion to award premature release incase of convicts of offences against children, women and minors. The petitioner was thus considered for premature release 9 times, but his case was rejected repeatedly.

In the process of reasoning, the Court referred extensively to the Kerala Prisons and Correctional Services (Management) Act, 2010 and the rules framed thereunder. Referring to the judgment of State of Haryana v. Jagdish118, State of Haryana v. Raj Kumar119, it was stated that remission policy prevailing on the date of conviction is to be applied in a given case and if a more liberal policy exists on the day of consideration, then the latter would apply. Under the 1958 Rules, life convicts are entitled to release after completion of 14 years of imprisonment, with various riders are conditions.

Analysing the statutory framework of the Kerala Prisons and Correctional Services (Management) Act, 2010, Court held thereunder that under the 2014 Rules, Jail Advisory Boards were constituted in each prison, to make recommendations for the premature release of prisoners, whose composition included senior officers from the police as also from the judiciary. This diverse Board had the powers of taking decision in the holistic view of the convict’s case of release. However, the State Government despite positive recommendations for premature release, without assigning any reasons simply rejected them which is patently unsustainable and warranted intervention of the court. All power must be exercised fairly, reasonably and not arbitrarily, was so stated by the court.

The guidelines of the State excluded the prisoners of serious offenses and those convicts who were awarded death sentence, but commuted to life imprisonment. The Court held that blanket exclusion of certain offences from the scope of grant of remission, especially by way of an executive policy, is not only arbitrary, but turns the ideals of reformation under criminal justice system on their head. The penological goal of reformation and rehabilitation is the cornerstone of our criminal justice system, rather than retribution. Discretion conferred widely by plenary statute or statutory rules cannot be lightly fettered, by self-created rules or policies.

Referring to the judgment of U.P. SRTC v. Mohd. Ismail120, it was stated that if a discretion is conferred upon an authority, then though norms or rules regulating the exercise of discretion can be framed, but however it cannot deny itself the discretion that the statute requires it to exercise in individual cases. The latitude given by Articles 72 and 162, in regard to matters such as remission, commutation, etc., therefore, cannot be caged or boxed in the form of guidelines, that are inflexible and deny individual case to case consideration of various convicts for remission of premature release.

Referring to the judgment in State of Haryana v. Mahender Singh121, right to be considered for remission is a guaranteed right under Articles 20 and 21 of the Constitution of India, which does not only emanates from the Prisons Act but also from the Rules framed thereunder. The convicts could not have been typecast through inflexible guidelines based on their crimes committed in the distant past, which has a real danger of overlooking the reformative potential of each individual convict. Any guideline that bars consideration of a premature release request by a convict, who has served over 20 or 25 years of sentence must be based entirely on the nature of crime committed in the distant past, and not merely the nomenclature of the provision of the offence. There cannot be insistence of guidelines, obdurately, to not look beyond the red lines drawn by it and continue in denial to consider the real impact of prisoners’ good behaviour, and other relevant factors that may result into premature release of the convict. Excluding the relief of premature release to prisoners who have served extremely long periods of incarceration, crushes their spirit. The 1958 Rules are clear wherein he is entitled to premature release, post completion of 20 years of incarceration. The Court thus directed the release of the petitioner with immediate effect considering that he had earned over 8 years of remission demonstrating good conduct in jail.

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(19) Malik Mazhar Sultan v. U.P. Public Service Commission122

(Delivered on 26-9-2023 )

Coram: 3-Judge Bench of Justices Dr D.Y. Chandrachud, J.B. Pardiwala and Manoj Misra

Authored by: Justice Dr D.Y. Chandrachud

The was dealing with an application filed by the State of Haryana seeking recruitment of judicial officers in Haryana Judicial Services and modification of an earlier order passed by the High Court of Punjab & Haryana. The issue related to filling up of 175 posts of Junior Civil Judges in the State of Haryana. The Court referred to the history of the selection process of lower judiciary being conducted under the control and supervision of the respective High Courts. In the State of Haryana, the selection process was notified by the State Government to the judicial services to be convened under the supervision of the Committee comprising three Judges of the High Court nominated by the Chief Justice, two representatives of the State Government and a member of the Public Service Commission. However, the said procedure was amended in December 2020 to be carried out by a Selection Committee, whose composition was completely altered to include the Advocate General, Haryana Chief Secretary and the Chairman of Haryana Public Commission. Thereafter, the State sought permission to conduct the entire selection process through the State Public Commission for recruitments to the judicial branch. The Court stated that the consistent pattern followed by the State Government has been of entrusting the selection process to the Committee as provided above. However, the State Government altered the said position without consultation with the High Court and without any objective data indicating necessity and justification for abrogating the involvement of the High Court in convening the said selection examination and overseeing the process. The Court held that Judges of the High Court participating in the selection process of lower judiciary have Domain knowledge both of the subject and of the nature of service. If this is to be deviated from then cogent material must be found to be existing either indicating the inability of the High Court to perform its task or demonstrating that there have been deficiencies in the past processes undertaken by the High Court. Accordingly, the request made by the State Government was declined by the Supreme Court for want of sufficient material being placed before the court for deviating from the course of action as stated supra. The recruitment was directed to be convened by a Committee consisting of: (i) three Judges of the High Court nominated by the Chief Justice of India; (ii) the Chief Secretary of the State of Haryana; (iii) the Advocate General of Haryana; and (iv) the Chairperson of the Haryana Public Service Commission.

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(20) State (NCT of Delhi) v. K.L. Rathi Steels Ltd.123

(Delivered on 17-3-2023)

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

by – Justice M.R. Shah

by – Justice B.V. Nagarathna

Leading opinion by- Justice M.R. Shah

Dissenting opinion by – Justice B.V. Nagarathna

The Supreme Court was adjudicating the applications under Article 137 of the Constitution of India read with Order 47 CPC referred by the Government of NCT of Delhi (“GNCTD”) and Delhi Development Authority (“DDA”) seeking review and recall of all the orders passed in the respective civil appeals directing lapsing of land acquisition proceedings in light of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“2013 Act”). It was contended by the GNCTD and the DDA in the review applications that the Constitution Bench of the Supreme Court in Indore Development Authority v. Manoharlal124 had expressly overruled the previously passed judgment of Pune Municipal Corpn. v. Harakchand Misirimal Solanki125. Whilst overruling Pune Municipal Corpn. case126, all other decisions in which Pune Municipal Corpn. case127 had been followed were also expressly overruled and vide paras 365 and 366, the Court had held all the judgments to be open to review in appropriate proceedings on the basis of the said Constitution Bench judgment. Para 365 of the Constitution Bench judgment of Manoharlal case128 that fell for interpretation of the Supreme Court read as follows:

365. Resultantly, the decision rendered in Pune Municipal Corpn. case129 is hereby overruled and all other decisions in which Pune Municipal Corpn. case130 has been followed, are also overruled. The decision in Sree Balaji Nagar Residential Assn. v. State of T.N.131, cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra132, the aspect with respect to the proviso to Section 24(2) and whether “or” has to be read as “nor” or as “and” was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment.

Where on one hand the review petitioners had contended that Constitution Bench had not only overruled Pune Municipal Corpn. case133 but also permitted and directed for review of all the judgments passed on the basis thereof, the respondent landowner argued that judgments/decision have attained finality inter parties and could not be reopened except on the grounds and considerations involved under Order 47 Rule 1. Merely because another judgment has come or the Supreme Court has taken a different view subsequently, the same cannot be ground for review.

The Bench delivered a split verdict, with Justice M.R. Shah holding that the judgments are open to review in view of observations made vide paras 365 and 366 of the Constitution Bench judgment in Indore Development Authority case134. It was held that observations made with para 365 has to be given meaning and content. The present case was held to be a peculiar case where earlier decision in Pune Municipal Corpn. case135 was doubted and referred to larger Benches up to the 5-Judge Bench. The review applications must be allowed since appropriate public authorities must be given an opportunity to put forward their case afresh in view of the law that has undergone a change post the Constitution Bench judgment.

However, the separate/split verdict of Justice Nagarathna held otherwise, holding that the review cum recall applications are liable to be dismissed by disagreeing with the reasoning adopted by Justice M.R. Shah. Referring to Article 137 along with Order 47 Rule 1 of the Supreme Court Rules 2013, especially the explanation which read thus:

Explanation: The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.

It was held that review is permissible only on extremely limited grounds and merely because decision on question of law which has been modified subsequently by any superior court, cannot be reviewed of such judgment. The power of the Supreme Court of India to review its judgment or order is subject to express limitations contained under Article 137 of the Constitution of India, which are: (i) the provisions of any law made by the Parliamen;, or (ii) any Rule made under Article 145 of the Constitution of India. It is restricted to the contours of Order 27 Rule 1 CPC.

Any person considering himself aggrieved can seek review of the judgment or order only on the aforesaid three grounds and none other. In fact the review is itself non-maintainable if any ground other than the aforementioned three grounds are taken by the party aggrieved. Interpreting the phrase “on account of any other sufficient reason”, it was held that the reasons must be in accord, in tune and of similar nature as analogous to those already specified in the Rule. Referring to the judgments of Chhajju Ram v. Neki136, Hari Sankar Pal v. Anath Nath Mitter137, Moran Mar Basselios Catholicos v. Mar Paulose Athanasius138, it was held that a decision erroneous in law is not a ground for ordering review, until and unless the error is one apparent on the face of record. Subsequent events or the act cannot be a ground to take a different view or be a reason for granting review. Even an erroneous judgment or order is binding on the parties, if subsequently that very judgment is reversed by the superior court. The circumstances mentioned in the explanation would be an exception and are outside the scope and ambit of the phrase “for any other sufficient reason”. This is the correlation between Explanation II, Order 17 Rule 1 and the Explanation appended to it.

Referring to the judgments of Y.P. Chawla v. M.P. Tiwari139, various categories of Explanation occurring under any statutory provision or explanation. If the Explanation is in the nature of an exception intended to restrain the enacting clause, then it should be so interpreted. The object and purpose of the Explanation was held to be related to the following three maxims:

  1. Nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same cause);
  2. Interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation);

  3. Res judicata pro veritate occipitur (a judicial decision must be accepted as correct).”

Referring to the judgments of Thungabhadra Industries Ltd. v. State of A.P.140, State of Gujarat v. R.A. Mehta141, even if the future or later Benches take a contrary view, it is always a subsequent judgment, which cannot be ground for review of any judgment passed previous to them. A decision does not lose its authority merely because it was badly argued, inadequately considered or fallaciously reasoned. Accordingly it was held that if review of various judgments and orders passed relying upon Pune Municipal Corpn. case142 are reopened, recalled and reviewed, then a pandora box would be opened not only in the Supreme Court, but also across the country in all the High Courts. Para 365 of the Constitution Bench judgment in Indore Development Authority case143 never specifically directed for Review of all the decisions relying upon the Pune Municipal Corpn. case144. Since the said observation was conspicuously absent, it must be inferred that since review is impermissible under Order 17 Rule 1, the said observation could not have been otherwise made also.

However, balancing the equities, the liberty was reserved and extended to various land acquiring authorities to initiate acquisition proceedings afresh within one year in some of the cases failing which the land was to be returned to the landowners. The period of initiation of acquisition under the provisions of the LA Act, 2013 was accordingly extended by a further period of one year from the date of judgment, failing which the position as directed by the already passed judgments in the respective cases would continue. The review petitions were accordingly disposed of with the split verdict as aforestated.

*         *         *         *

(21) Kaushal Kishor v. State of U.P.145

(Delivered on 3-1-2023)

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

Majority judgment by: Justice V. Ramasubramanian

Concurring opinion by: Justice B.V. Nagarathna

The reference to the Constitution Bench arose in the context of petitions filed by various individuals being aggrieved by the offensive speech given by political personalities of people occupying public positions, that lead to institution of criminal proceedings against the Speaker of the said speeches. The reference made to the Constitution Bench formulated the following five questions to be dealt with by the Supreme Court:

(i) Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?

(ii) Can a fundamental right under Article 19 or Article 21 of the Constitution of India be claimed other than against the “State” or its instrumentalities?

(iii) Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?

(iv) Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of collective responsibility?

(v) Whether a statement by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, constitutes a violation of such constitutional rights and is actionable as “constitutional tort”?

After hearing prolonged arguments by all the counsels, the Court discussed, analysed and resolved issues questionwise mentioned above:

Answering Qn. one, the Court traced the history of evolution of Article 19(2), having been picked up from Article 40(6) of the Irish Constitution by the Constituent Assembly. How from time to time, in various stages, Article 19(2) came to be finally revised and worded was discussed and how this interpretation had been made from time to time. Reference was made to the Constitution (First Amendment) Bill, 1951, which substituted existing Article 19(2) with an altogether new clause, post the judgment of Romesh Thappar v. State of Madras146, Brij Bhushan v. State of Delhi147, and given retrospective effect from the day of its original enactment, the noticeable one being inclusion of the words, “reasonable restrictions” through the First Amendment as aforestated. Thereafter the Constitution (16th Amendment) Act, 1963, further expanded the ambit of Article 19(2) with the inclusion of “sovereignty and integrity of India” as an additional ground of restriction on the right guaranteed under Article 19(1)(a). Various heads of restriction save the existing laws and enable the State to make laws restricting free speech. The Court referred to various provisions of IPC, that restrict the freedom of speech and expression by providing for particular category of speeches, expressions or the acts accompanying thereof as offences.

Accordingly, the Court held that eight heads of restrictions contained under Article 19(2) are so exhaustive that the laws made for the purpose of protection of the individual, sections of society, classes of citizens, Court, the country and the State have all been saved. Restrictions which do not fall within the purview or pale of four corners of Article 19(2) are unconstitutional. Referring to the judgment of Express Newspaper (P) Ltd. v. Union of India148 Court held that restrictions not covered by Article 19(2) or falling squarely within therein would be struck down as unconstitutional. When the executive cannot provide for restrictions through backdoor, which have been frowned upon by the constitutional courts, in the same manner courts also cannot impose additional restrictions by using tools of interpretation. No further restrictions need to be incorporated or can be so done by the courts which are not specifically provided and mentioned under Article 19(2). In any case in light of Article 13 of the Constitution of India (COI), law imposing any restriction under Article 19 can be made only by the State and not by the Court. The Court acts as the gatekeeper (and a conscience keeper) to strictly check the entry of restrictions into the temple of fundamental rights.

The Court then examined whether restrictions on the fundamental rights of a person can be imposed, by invoking the fundamental rights of another person. Referring to the word “fraternity” occurring in the Preamble to the Constitution, it was held that the Court always strikes a balance between exercise of fundamental rights by individuals, when it causes inroads into each other’s space. A number of instances and judicial precedents were quoted in this regard to hold that no one can exercise his right to speech in such a manner as to violate another man’s right. The State under Part III is under an equal obligation to ensure conditions in which rights can be meaningfully and effectively enjoyed by one and all. Referring to the following judgments, the Court quoted instances where fundamental rights of others vis-à-vis freedom of speech and expression available under Article 19(1)(a) of an individual was balanced and accordingly restricted, which are as follows:

(a) In R. Rajagopal v. State of T.N.149, freedom of expression was pitted against right to privacy of the officers of the Government under Article 21, when the Court gave way to right to freedom of speech and expression, holding that incumbents of government offices, local authorities cannot maintain a suit for damages for defaming them if it involves a fair criticism about their discharge of duties.

(b) In People’s Union for Civil Liberties v. Union of India150; right to privacy of the spouse of the candidate contesting the election qua the voter’s right to information available under Article 19(1)(a) was put into question. It was held that the former right has to be subordinated to the latter right as it serves the larger public interest.

(c) In Ram Jethmalani v. Union of India151, the right to know/information under Article 19(1)(a) was pitted against the right to privacy pleaded by individuals holding bank accounts in other countries and disclosure of the funds/corpus maintained in them. The Court trumped the latter over the former.

Thus relying on the above precedents, the Court held that under the guise of invoking other fundamental rights, additional restrictions, over and above those prescribed under Article 19(2) cannot be imposed upon the exercise of one’s fundamental rights, but the Court is always required to balance the same, to give way by applying well-established legal tools.

Answering Qn. two, it was held that Part III of the Constitution and the rights contained therein possess both “vertical” as well as “horizontal” effect. Wherever constitutional rights regulate and impact only the conduct of the Government and government actors, in the dealings with private individuals, they are said to have a vertical effect. But wherever constitutional rights impact even the relations between private individuals, they are said to have a horizontal effect. A vertical approach provides weightage to individual autonomy, choice and privacy while the horizontal approach seeks to imbibe constitutional values in all individuals. These approaches which appear to be bipolar opposites raise the age-old question of individual versus society. Listening to American precedents, especially New York Times Co. v. L.B. Sullivan152, wherein a defamatory statement in a paid advertisement was held not to constitute libel/defamation, relating to public official’s official conduct. Similarly referring to evolution of ”horizontal effect” in South Africa, and the judgment of Governing Body of the Juma Musjid Primary School v. Ahmed Asruff Essay N.O.153 it was held that private landowners and non-State actors have a constitutional obligation not to impair the right to basic education under the Constitution of South Africa, when eviction order was sought to be enforced against the public school constructed on a private land. The said approach has been adopted and followed in various articles of Part III of the COI, viz. Articles 15, 16, 17, 20, 22 and a detailed chart forms part of the judgment, wherein various articles with their horizontal effects have been quoted. These articles are in the form of directives to the State, for being honoured by and also enforceable against non-State actors. Referring to the Constitution Bench judgment in P.D. Shamdasani v. Central Bank of India Ltd.154, the Supreme Court had earlier denied remedy against invasion of a private individual by a private individual. However, the said view changed and in subsequent judgments, specially referring to the judgments of LDA v. M.K. Gupta155, Bodhisattwa Gautam v. Subhra Chakraborty156, and the long line of judgments developing the environmental jurisprudence delivered by the Supreme Court, Part III rights were held to be possessing “horizontal effect”. To mean that these rights cannot be violated by non-State actors and the State is under an affirmative obligation to ensure their protection and also punish the violator. Constitutional and fundamental rights provide remedy against them by the State as an abstract entity whether through legislation or otherwise. Thus, Part III rights, especially those under Articles 19 and 21 were held to be enforceable even against persons other than State or its instrumentalities (non-State actors).

Answering Qn. three, it was held that State is under a duty to affirmatively protect the rights of citizen, especially available under Articles 19 and 21 of the COI, when there is imminent threat to the same by another citizen or private agency. The Court in the course of discussion distinguished between the two terms occurring under Article 21, viz. “life” and “personal liberty”. Both have different connotations and may exist jointly as well as severely/separately. Right to personal liberty through various judgments, has been developed to include right to locomotion, to travel abroad, or to move throughout the territories of India, even wherever not covered or provided by Article 19. Referring to the judgment of Satwant Singh Sawhney v. D. Ramarathnam157, Maneka Gandhi v. Union of India158 and Bandhua Mukti Morcha v. Union of India159, even a psychological restraint on a person may account to deprivation of personal liberty. The State was thus held to be under an affirmative obligation to take corrective measures and ensure protection against non-State actors guaranteed to persons under Part III of the COI.

Answering Qn. four, it was held that the question revolves around the role and responsibility of a Minister and the vicarious liability/responsibility of the Government to any statement made by him, which is provocative or leads to violation of fundamental rights under Part III of the Constitution of India. Referring to the principle of “collective responsibility” contained under Articles 75(3) and 164(2) of the Constitution of India, it was held that the Council of Ministers must be treated as a singular unit and are collectively responsible to the House of the People or Legislative Assembly of the State. This is different from “joint responsibility” where the Cabinet is responsible to the legislature for every action taken in any of the Ministries headed by the respective ministries.

However, the only sanction for enforcement of this collective responsibility is the pressure of public opinion expressed particularly in terms of withdrawal of political support by members of Parliament or State Legislature as the case may be. It is about maintenance of confidentiality as enjoined in the oaths of office and secrecy of set forth under Schedule III of the Constitution of India. It is a price of acceptance of the Cabinet office or the Cabinet rank that a Minister is bound by collective decision of the Council of Ministers and cannot deviate/depart or resile from it. However, the Court summarised the nature of collective responsibility to be the flow of stream from the Council of Ministers to the individual Ministers, and not the reverse, viz. individual Ministers to the Council of Ministers. Though each individual Minister is responsible for the decision taken collectively by the Council of Ministers, it is not clearly the vice versa. Therefore, by the constitutional scheme as provided vide Articles 75 and 164, even if traceable to any affairs of the State or for protecting the Government, cannot be attributed vicariously to the Government by invoking the principle of collective responsibility.

Answering Qn. five, it was thus held that a statement made by the Minister inconsistent to the rights of any citizen cannot be treated as actionable as a “constitutional tort”. What is required is an act or omission must have been occasioned in result thereof or, resulting into injury or loss, to be actionable as a constitutional tort.

Concurring opinion: The learned Judge, B. Nagarathna agreed with the reasoning and conclusions arrived at by HM Justice V. Ramasubramanian but laid down her own separate opinion.

Answering Qn. two, relying on Kesavananda Bharati v. State of Kerala160 it was held that Part III of the Constitution is not the sole repository of the rights enshrined in Part III of the Constitution and the introduction of fundamental rights does not obliterate the congruent rights under common or natural law. Both these remedies coexist and the object of elevating certain natural and common law rights as fundamental rights is to specifically make them enforceable against the State and its agencies through courts of law. The true character and utility of Part III was to dictate the relationship between citizens and the State, while the congruent common laws continued to regulate relationships between citizens and entities, other than the State and its instrumentalities.

While the content of a common law right may be identical to a fundamental right, there still exists two important differences between the two: first, incidence of the duty to respect such right; and second, the forum which would be called upon to adjudicate on the failure to respect such right. Relying on K.S. Puttaswamy (Privacy-9J.) v. Union of India161, it was held that horizontality is recognised in common law, as well as in certain fundamental rights including Articles 15(2), 17, 23 and 24 as they are expressly identified to operate horizontally by the Constitution.

Relying on Ramakrishna Mission v. Kago Kunya162, Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies163 and P.D. Shamdasani v. Central Bank of India Ltd.164, it was held in the concurring opinion that Articles 19 and 21 cannot be said to operate horizontally and such a declaration would be in total disregard to the elementary differences in the status of the two rights discussed above. Further, when alternative efficacious remedies are present under the common law or statutory law, even if horizontal operation of Articles 19 and 21 is recognised, writ courts cannot exercise their writ jurisdiction.

However, the writ of habeas corpus is still available against a private party as well as a State, to this extent Article 21 operates horizontally.

Answering Qn. three, it was held that Article 21 only imposes a negative duty on the State and therefore a violation of it would only occur when a State undertakes an obligation by enacting a statute or a scheme, but fails to fulfil it. The State has an affirmative duty to carry out obligations cast upon it under a statutory or constitutional law which are based on Article 21. These obligations may require interference of the State where the acts of any third private actor may threaten the life and liberty of another individual and a failure to fulfil these obligations leading to the deprivation of the life and liberty of a person leads to the breach of the negative duty cast upon the State under Article 21.

Answering Qn. four, it was held that a Minister can make a statement either in his personal capacity or in his official capacity and as a delegatee of the Government. The principle of collective responsibility can be invoked in the latter case if the views of the Minister reflect the Government’s stance as well and the statement of the Minister can be attributed vicariously to the Government.

Answering Qn. five, relying on a long line of judgments including Rudul Sah v. State of Bihar165 and Hindustan Paper Corpn. Ltd. v. Ananta Bhattacharjee166 it was held that public law operates in order to civilise public power and to assure citizens that their interests are protected and their rights are preserved. Under public law the courts can, by employing elements of tort law, fix liability on the State when it acts negligently through itself or its agents and fails in its public duty to protect the fundamental rights guaranteed by Article 21 of the Constitution.

However, in the absence of a clear, cogent and comprehensive legal framework based on judicial precedents clarifying what harms are actionable as constitutional tort, only in cases of brutal violations of fundamental rights can the remedy of constitutional tort under Articles 32 and 226 be invoked. A statement made by a public functionary resulting in harm or loss to a person does not normally constitute a constitutional tort, except when such statement is vicariously attributable to the State.

The learned Judge also opined that the jurisprudence of constitutional torts should evolve to encompass all the fundamental rights, and not just limited to the right to life and liberty under Article 21.

*         *         *         *

(22) Assn. of Vasanth Apartments’ Owners v. V. Gopinath167

(Delivered on 13-2-2023)

Coram: 2-Judge Bench of Justices K.M. Joseph and P.M. Narasimha;

Authored by: Justice K.M. Joseph

Challenge in the batch of petitions was laid to Rule 19 of the Development Control Rules (“DCR”), in relation to reserving of open space reservation areas (OSR). The rule required the owner or the project promoter developing a residential colony to execute a gift deed in favour of Chennai Metropolitan Development Authority (“CMDA”) for reservation of a particular area as OSR. Where on one hand, the original landowner and the promoter of the residential colony of a layout of more than 10,000 square meters approached the High Court challenging the validity of the aforesaid rule requiring compulsory execution of the gift deed of a private self-owned land in favour of CMDA, the Residence Welfare Association on the other hand sought relief of maintaining the said open area as a park with provisions of recreational facilities. It was pleaded in the writ petition on behalf of the owner/promoter that the compulsory gifting of open space to CMDA or the Municipal Corporation was unconstitutional and violative of Article 300-A of the Constitution of India, being in the nature of compulsory acquisition of private land from the owner. It was further pleaded that it is not only arbitrary, but also violative of the Part III rights of the landowner insofar as they have to part their private land and their ownership over the land with the reservation as open space in the DCR.

The Court held that DCR carries the force of law, being part of the master plan, duly prepared under the provisions of Tamil Nadu Town and Country Planning Act, 1971. Referring to the judgment of Chet Ram Vashist v. MCD168, it was held that restrictions on the user of a property can always be imposed by town planning and zoning regulations and such a reservation or designation in the plan does not fall under the head of compulsory land acquisition. DCR constitutes an integral part of development/master plan and if requirements of leaving 10% of the property or reservation on usage of land are imposed, the same cannot be treated as acquisition or the person being “injuriously affected” under Section 39 of the Act. However, at the same time referring to the judgments of T. Vijayalakshmi v. Town Planning Member169 and Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd.170 it was held that since town planning legislations are regulatory in nature and lead to curtailment of ownership rights, putting restrictions on the right to construct or develop any private property, they must be construed very strictly. The rights over land can be regulated in terms of regulatory statutes like the town planning laws, but only by way of clear specific statutory provisions. No owner of the land has any absolute and unqualified right over his land. Nature of development, extent of development can all be regulated by statutory provisions, which cannot on the ground of imposing such restrictions be treated as arbitrary.

Accordingly affirming the constitutionality of Rule 19 of the DCR, it was held by the Court that the same is statutory in nature and not ultra vires the parent Act. It does not violate Article 14 or Article 300-A of the Constitution of India. The areas covered by the OSR as designated under the DCR cannot be diverted for any other purposes and respondents are duty-bound to ensure that areas set apart as OSR are strictly and stringently utilised only for the purposes in the Rules/Regulations. The same cannot be utilised as a dumping yard or for any other purpose other than that for which it is designated under the OSR by the Town Planning or the Development Authority.

The owner of the land/promoter of the colony developing the project is the trustee in occupation of the land, who is required to execute the gift deed in favour of the CMDA, which also becomes the trustee only for the purposes of ensuring and retaining the purpose and usage of the land towards maintaining the OSR. The CMDA does not become the owner with the execution of the gift deed and it only retains or maintains the nature or usage of the designated land as the OSR. The said property gifted must be open for the general public, was so directed by the Supreme Court whilst interpreting the term “communal reservation” used under provisions of DCR Regulations. Accordingly, the civil appeals were disposed of.

*         *         *         *

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

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