75 Landmark Judgments on Constitutional Law by the Supreme Court in 2023 Part III

Part I and Part II of this article covered the Judgments delivered between January to April 2023 and from May to September 2023 respectively, inclusive of all the judgments that showcased consideration, interpretation, and evolution of important constitutional Law principles rendered by the Supreme Court. This part is a roundup of all the landmark constitutional law judgments delivered from September to December 2023.

The judgments are as follows:

(1) Pankaj Bansal v. Union of India¹

(Delivered on 3-10-2023)

Coram: 2-Judge Bench of Justices A.S. Bopanna and Sanjay Kumar

Authored by: Justice Sanjay Kumar

Challenge was laid to arrest and the remand order passed by the Special Court Prevention of Money Laundering Act (PMLA) effected by Enforcement Directorate (ED) of the petitioners. FIR in relation to scheduled offenses were registered by the anti-corruption bureau, Panchkula, Haryana under the provisions of the Prevention of Corruption Act, 1988 r/w Section 120-B IPC for offences of corruption and bribery against the petitioner along with other co-accused persons. Interim protection from arrest was obtained from the Delhi High Court, which matters were also pending when the petitioner was arrested in another European Conference on Information Retrieval (ECIR) registered by the ED.

However, another FIR came to be registered, in respect of which summons were issued, in response to which the petitioner could not appear or represent before the ED. Accordingly, on the basis of the second ECIR, the petitioner was arrested on the same day under Section 19 of the PMLA, 2002. The accused contended that his name does not figure anywhere in the contents of the first information report (FIR) registered in relation to the scheduled offense and that grounds of arrest were never recorded nor supplied to him at the time of arrest. The word “communicate” occurring under Rule 21-G of the Prevention of Money-Laundering (Appeal) Rules, 2005 (Arrest Rules) obligated the ED to communicate in writing the grounds of arrest after recording the same.

Thus, the only issue that the Court examined was whether the arrest of the appellant under Section 19 of the PMLA was valid, lawful and impugned orders of remand passed on the basis thereof were sustainable or not. Referring to the judgment of Vijay Madanlal Choudhary v. Union of India², it was held that reasons have to be always recorded in writing and whilst effecting arrest, the grounds of arrest must be informed to the person concerned. Referring to the judgment of V. Senthil Balaji v. State of Madras³, it was held in light of Section 19 of the PMLA and Section 167 CrPC, adequate safeguards to an arrested person must be available, when any order of remand is being passed against him/her. The Court, seized under Section 167 CrPC, of remanding a person arrested by the ED, has a duty to verify and ensure that arrest is valid and lawful. If the remand order has not examined the compliance of the aforementioned conditions, then it is illegal and cannot withstand scrutiny in the eye of the law.

In the present case, the Court held that the Special Judge whilst demanding the petitioner failed to peruse the grounds of arrest or even ascertain whether the reasons were even recorded or not by ED whilst effecting arrest of the petitioner. The remand order was absolutely silent on the compliance of mandatory conditions under Section 19 of the PMLA, and thus bad in law.

On the argument of communication of grounds of arrest in writing to the accused concerned, it was held that every action of the ED in the course of investigation and arrest must be transparent, above board and confirming to pristine standards of fair play in action. The manner in which the second ECIR immediately came to be registered after anticipatory bail was secured by the petitioner manifests complete and utter lack of bona fides. Further failure of the appellants to respond to questionnaires of ED would not in itself be sufficient to lead to the arrest of the petitioners. Mere non-cooperation of a witness in response to the summons issued under Section 50 would not be enough to render him/her liable to be arrested under Section 19. Referring to the judgment of Santosh v. State of Maharashtra⁴, it was held that custodial interrogation is not for the purpose of ensuring/extracting confessions from the accused as right against self-incrimination under Article 20(3) of the Constitution of India is always available even when the accused is in custody. Merely because the accused did not confess, it does not mean that he is not cooperating with the investigation and the said cannot be held against him. Relying on Article 22(1) of the Constitution of India, it was held that a person has the right to be informed of the grounds of his/her arrest and the said safeguard must be followed under PMLA as well. Referring to the Arrest Rules, 2005 under the PMLA, especially the format of “arrest order”, it was held that there is no valid reason why a copy of written grounds of arrest should not be furnished to the arrested person as a matter of course without exception. Informing grounds in writing would avoid the precarious situation of ED claiming the advantage of informing the accused and accused denying the same. Very purpose of the constitutional and statutory protection would be rendered nugatory if authorities are required merely to read out or permit reading of the grounds of arrest orally, irrespective of their length and detail, and not communicate the same in writing. Accordingly, overruling the decisions of the Delhi and Bombay High Courts in Moin Akhtar Qureshi v. Union of India⁵ and Chhagan Chandrakant Bhujbal v. Union of India⁶, it was held that grounds of arrest must always be informed in writing prior to effecting arrest. Accordingly, the arrest affected by the ED was held to be illegal and resultantly quashed. The accused were directed to be released forthwith.

*           *           *

(2) Sarvesh Mathur v. High Court of P&H⁷

(Delivered on 6-10-2023)

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

Authored by: Justice Dr D.Y. Chandrachud

This writ petition arose as a consequence to the discontinuation of virtual hearings by the Punjab and Haryana High Court, which was previously functioning in hybrid mode, especially during the Covid-19 Pandemic. It was held by the Supreme Court that technology plays an essential role in securing access to courtrooms and justice and lawyers accustomed to using electronic gadgets cannot be asked to turn the clock back and go back to the age of paperbacks at this stage. Denying access to virtual participants, requiring prior application and mandating age criteria discourages litigants to use technology at a time where the Bar and Bench must aid each other to create a technologically adept and friendly environment.

The court observed that only few High Courts are operating through hybrid mode of hearing, and most High Courts do not provide Wi-Fi or internet connectivity to the litigants in the premises of the courts and many High Courts have not yet adopted online filings. The following principle directions were issued by the Court in this backdrop:

(i) After a lapse of two weeks from the date of this order, no High Court shall deny access to videoconferencing facilities or hearing through the hybrid mode to any member of the Bar or litigant desirous of availing of such a facility.

(ii) All State Governments shall provide necessary funds to the High Courts to put into place the facilities requisite for that purpose within the time-frame indicated above.

(iii) The High Courts shall ensure that adequate internet facilities, including Wi-Fi facilities, with sufficient bandwidth are made available free of charge to all advocates and litigants appearing before the High Courts within the precincts of the High Court complex.

(iv) The links available for accessing videoconferencing/hybrid hearings shall be made available in the daily cause-list of each court and there shall be no requirement of making prior applications. No High Court shall impose an age requirement or any other arbitrary criteria for availing of virtual/hybrid hearings.

*           *           *

(vii) The Union Ministry of Electronics and Information Technology is directed to coordinate with the Department of Justice to ensure that adequate bandwidth and internet connectivity is provided to all the courts in the North-East and in Uttarakhand, Himachal Pradesh and Jammu and Kashmir so as to facilitate access to online hearings.

(viii) All High Courts shall ensure that adequate training facilities are made available to the members of the Bar and Bench to enable all practising advocates and Judges of each High Court to be conversant with the use of technology. Such training facilities shall be set up by all the High Courts under intimation to this Court within two weeks from the date of this order.

(ix) The Union of India shall ensure that on or before 15-11-2023, all tribunals are provided with requisite infrastructure for hybrid hearings. All tribunals shall ensure the commencement of hybrid hearings no later than 15-11-2023. The directions governing the High Courts shall also apply to the Tribunals functioning under all the Ministries of the Union Government including Customs, Excise and Service Tax Appellate Tribunal (Cestat), Income Tax Appellate Tribunal (ITAT), National Company Law Appellate Tribunal (Nclat), National Company Law Tribunal (NCLT), Armed Forces Tribunal (AFT), National Consumer Disputes Redressal Commission (Ncdrc), National Green Tribunal (NGT), Securities Appellate Tribunal (SAT), Central Administrative Tribunal (CAT), Debts Recovery Appellate Tribunals (DRATs) and Debts Recovery Tribunals (DRTs).

*           *           *

(3) Kishan Chand Jain v. Union of India⁸

(Delivered on 9-10-2023)

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

The petitioner invoked the jurisdiction of the Supreme Court under Article 32 of the Constitution of India seeking directions for better functioning of the State Information Commissions as also the Central Information Commissions under the Right to Information Act, 2005. It was stated that since most of the State Information Commissions (SICs) are located in the capital cities of the States and Central Information Commission (CIC) at Delhi, therefore accessibility is a major concern for the applicants applying for disclosure and divulgence of information under the RTI Act. The petitioner therefore sought a direction against all the SICs for allowing the option of virtual hearings along with physical hearings on a hybrid mode. Court referred to Section 18 of the RTI Act, 2005, holding that the CICs and SICs possess the same power as are vested in a civil court whilst trying a suit in respect of matters specified under the said provision. Referring to the judgment of Union of India v. Namit Sharma⁹, it was held that Information Commissions are required to act in a fair and just manner whilst following the procedure laid down in Sections 18, 19, 20 and 26 of the Act, 2005. The CIC was found to be conducting its proceedings in a hybrid manner by providing virtual access to citizens and applicants from far-off places. However, in case of SICs there is a variation in the practice followed across different States. The right to information promotes the values of participatory democracy and accountability, not merely a statutory right but also a fundamental right as an ingredient of freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Explaining the difficulties behind physical hearings in courts, it was held that they require the litigants and parties living in remote areas to travel long distances to appear before the court. Videoconferencing solutions provide a cost-effective and efficient alternative to physical courts, which are prohibitive in nature. Virtual courts democratise our legal processes by expanding the courtroom area beyond the walls of the courtroom and technological solutions are a tool to actualise the right of access to justice by providing virtual entry to the litigants in the courtroom. Referring to the judgment of Swapnil Tripathi v. Supreme Court of India¹⁰, it was held that the transcendental effect of technology is not only to further the constitutional right of access to justice, but it also strengthens the rule of law and democracy. Accordingly, all the SICs across the country were directed to provide hybrid mode of hearing to all the litigants for the hearing of complaints as well as appeals. The discretion shall lie with the applicant to avail the facility of videoconferencing or not and the link for availing such an option be stipulated in the daily cause-list of SICs across the country. There was a direction to all the SICs to also ensure that e-filing of complaints and appeals is also provided in a streamlined manner to every litigant having regard to Section 26 of the RTI Act. Accordingly, with the aforementioned direction, the writ petition was disposed of.

*           *           *

(4) Harsh Automobiles (P) Ltd. v. Indore Municipal Corpn.¹¹

(Delivered on 9-10-2023)

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

Authored by: Justice Aravind Kumar

Challenge was laid to demand notices raised against the appellant for payment of advertisement tax levied under Section 139-A of the Municipal Corporation Act, 1965. The demand came to be raised on the ground that sign boards were displayed on its premises, displaying the name of the appellant’s business as also the nature of business. High Court rejected the challenge to the said advertisement tax holding that the appellants business as also display of the same (even on the official signage board) above the showroom of the petitioner would constitute an advertisement inviting the general public for commercial purposes. The Court examined the submission that not putting up a sign board displaying the name of the business or firm will result in the public getting misguided or not being aware or known about the business being carried out or the service being provided by the appellants. Interpreting Section 132 of the Corporation Act, it was held that tax on advertisements other than advertisements published in newspapers can be imposed. Referring to the judgment of ICICI Bank v. Municipal Corpn. of Greater Bombay¹², it was held that advertisements should have some commercial exposition or the intent of soliciting customers to the product or service prominently shown in the advertisement. It should be indicative of the business activity of the displayer with the view to attract the attention of parties to its businesses. The kind of information supplied of the location of the service provided may also be construed as commercial exploitation indirectly and the sign boards may not aim solely at the existing customers, but may also affect the decisions of prospective customers. However, a mere mentioning of the name of the product in which the business establishment is being run or informing the customer about the existence and operation of a business from a particular premises would not partake the character of an advertisement, unless and until by such display customers are solicited. The statutory provisions of Section 132 do not empower the Municipal Corporation or its agency to demand tax for display of information through name boards or display boards, but only on advertisement. The display and the signage boards displayed on the premises of the appellants were held to be not reflective of any solicitation of customers or inducing the general public to buy the products dealt with by the appellants but were simply put up as an information to the interested passersby to step into and purchase the goods and services provided by the appellants. If the same is held to be amounting to advertisement, then such levy would be without the authority of the law and resultantly violative of Articles 19(1)(a) & (g) and 265 of the Constitution of India. Accordingly, the matter was remanded to the Municipal Corporation for examining the objections and passing appropriate orders in light of the law exposited by the Supreme Court.

*           *           *

(5) Poonam Sharma v. Union of India¹³

(Delivered on 9-10-2023)

Coram: 2-Judge Bench of Justices Hima Kohli and B.V. Nagarathna

Authored by: Justice Hima Kohli

Writ petition was filed by the petitioner under Article 32 of the Constitution of India praying inter alia for issuing directions to the respondents to permit the medical termination of the petitioner’s pregnancy under Sections 3(2)(b)(i) & (3) and 5 of the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) r/w Rule 3-B of the Medical Termination of Pregnancy Rules, 2003.

Relying on X v. State (NCT of Delhi)¹⁴, it was held that one of the grounds under which pregnancy may be terminated is whether the continuation of such pregnancy could seriously imperil the mental health of the women. Section 3 of the MTP Act permits the termination of such pregnancies that involve a risk to the life of the pregnant woman or grave injury to her physical or mental health. “Mental health” has a broader connotation than what is strictly considered “mental illness”. Further, conception in lactational amenorrhea method (LAM) (a method of contraception used by breastfeeding women) has been acknowledged as one of the circumstances under which women would qualify under Rule 3-B of the MTP Rules.

The Court acknowledged the woman’s physical, mental, psychological, financial and socio-economic background and considering that the primary responsibility of bringing up the child would fall on the mother, the Court granted her permission to terminate her pregnancy.

The Court also stated that ordinarily the Court is reluctant to entertain petitions directly under Article 32 of the Constitution of India when an alternate remedy under Article 226 already exists. The petitioner should have approached the High Court of Delhi first, but because delay in each day would count in the facts of this case, the Supreme Court did not direct the filing of a fresh petition in the High Court. The Court also observed that family planning is extremely important and raising a child with all the necessary amenities including nutrition, health, good education and a conducive home environment to make the child grow to be a responsible citizen of the country is an obligation cast upon all parents. The Court held that the Central and State Governments ought to address the ignorance of the public regarding family planning and all schemes relating to family planning, maternal health and child’s health must be given adequate publicity and disseminated to all people, especially married couples.

The Court also acknowledged prevailing patriarchal norms and the intense desire to beget a male child leading to female foeticide but held that the facts of this case do not deem the prayer suspect as the petitioner already has two male children. Accordingly, the Court allowed the writ petition and issued a direction for the petitioner to visit the Obstetrics and Gynaecology Department, Aiims, New Delhi on 10-10-2023 for the termination of her pregnancy.

*           *           *

(6) Poonam Sharma v. Union of India¹⁵

(Delivered on 11-10-2023)

Coram: 2-Judge Bench of Justices Hima Kohli and B.V. Nagarathna

Authored by: Justice Hima Kohli

Dissenting Opinion: Justice B.V. Nagarathna

Reference to the Division Bench arose from a recall application filed by the Union of India seeking recall of the order dated 9-10-2023 (mentioned supra) allowing the petitioner to terminate her pregnancy.

There was a divergence of opinion between both the Judges. The recall application was premised on a subsequent e-mail addressed by one of the Members of the Medical Board of Aiims who is a Professor in the Department of Obstetrics and Gynaecology, at Aiims. The e-mail stated that the baby was viable at the time of sending such e-mail and therefore either a feticide must be performed upon the foetus or a preterm delivery must be induced in furtherance of the termination of pregnancy. The e-mail sought directions from the Supreme Court regarding whether such foeticide can be performed on a normal foetus (as such practice is only followed with respect to foetus having abnormal development) and if not, what should be done with the baby which may be born pre-term with a chance of survival (however, with the high possibility of disabilities and immediately requiring long intensive care which could take a huge mental, financial and physical toll on the parents). Further, it was stated that in case the option of adoption is chosen, the baby will have a better chance at life if the delivery happens at least after 8 weeks. In view of this additional clarificatory information contained in the e-mail, Justice Hima Kohli in her opinion did not allow the petitioner to terminate her pregnancy.

Dissenting opinion

However, Justice B.V. Nagarathna, delivering a split divergent opinion, permitted the termination of pregnancy by the lady. Justice B.V. Nagarathna held that socio-economic conditions in which the petitioner is placed; chances of unviable baby being born; petitioner already being mother of two children and expecting a third in a year’s time; and her delicate mental condition, health, all reasons clubbed would demonstrate that plea for termination must be considered favourably by the Court. Courts cannot substitute their view in the matter with that of the decision of the petitioner. Referring to the judgment of X v. State (NCT of Delhi)¹⁶, it was held that the right to choose whether and when to have children and other associated decisions must be taken by the women only, which lies within the domain of their absolute autonomy. The decision to have or not to have an abortion is a part of reproductive autonomy, available to a pregnant woman associated with the right to bodily autonomy. Unwanted pregnancy as a result of failure in a family planning method must not be permitted if the pregnant lady is not willing to give birth to a child. Foetus is dependent on the mother and cannot be recognised as an individual personality, whose very existence is owed to the mother. Foetus does not possess a separate entity and that giving birth to a foetus would endanger her delicate health, contrary to Articles 15(3) and 21 of the Constitution of India of the woman concerned. Accordingly in her split divergent opinion, Justice Nagarathna held that the petitioner was entitled to have abortion and pregnancy terminated as per accepted medical methods.

*           *           *

(7) Mathews J. Nedumpara v. Union of India¹⁷

(Delivered on 11-10-2023)

Coram: 3-Judge Bench of Justices Sanjay Kishan Kaul, C.T. Ravikumar and Sudhanshu Dhulia

Authored by: Justice Sanjay Kishan Kaul

The petitioner, as a practising advocate filed the writ petition under Article 32 of the Constitution of India challenging the system of designation of advocates as Senior Advocates under Sections 16 and 23(5) of the Advocates Act, 1961 (Advocates Act), as also Rule 2 of Order 4 of the Supreme Court Rules, 2013. The challenge was mounted on the grounds that it creates a special class of advocates with special rights, privileges and status not available to ordinary advocates, being violative of the mandate of equality under Articles 14 and 21 of the Constitution of India.

Repelling the challenge as misconceived, the Court held that any statutory provision enacted by the legislature must not only violate fundamental rights under Part III of the Constitution of India, but also that violation must directly and inevitably affect the people and public at large. It cannot be premised on an ostensible use of violation of the provision. Referring to the judgment of Public Services Tribunal Bar Assn. v. State of U.P.¹⁸ and Union of India v. Nitdip Textile Processors (P) Ltd.¹⁹, it was held that classification is not reviewable by courts unless palpably arbitrary. It cannot be the concern of the courts, whether the classification is the wisest or the best that could be made, but that the classification must be proper, based on reason and having rational nexus with the justiciable objective. Testing Section 16 on the set stone, it was held that the objective of senior designation is to ensure overall efficiency of the system, proper assistance to the Bench and propagation of the case of the client. Expertise and merit are the criteria and special entitlement to address the court is coupled with restriction on many acts which they could otherwise perform as advocates. Designation as a Senior Advocate is the recognition of merit by the court and the two judgments passed in Indira Jaising v. Supreme Court of India²⁰, endeavoured to make the process more transparent. Referring to the judgment of R.K. Garg v. Union of India²¹, it was held that if the statutory provision of the rule is based on the assumption, judicially recognised and accepted, which the legislature understands correctly and appreciates, the court must take consideration of the same as a matter of common knowledge and not likely interfere with its validity. Accordingly, the writ petition was dismissed without any cost.

*           *           *

(8) Supriya Chakraborty v. Union of India²²

(Delivered on 17-10-2023)

Coram: 5-Judge Bench of Justices Dr D.Y. Chandrachud, Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha

Majority Opinion: Separate judgments of Justice S. Ravindra Bhat and P.S. Narasimha

Minority Opinion: Justice Dr D.Y. Chandrachud and Sanjay Kishan Kaul

Reference to the Constitution Bench arose from writ petitions filed challenging the constitutionality of Section 4(c) of the Special Marriage Act, 1954 (, “SMA”) which recognises marriage only between a “male” and a “female” for being discriminatory against same-sex couples by denying them the matrimonial benefits such as adoption, surrogacy, employment and retirement benefits. The petitions were tagged with several other petitions challenging other personal laws including the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969, on similar grounds.

The judgment of the Court was penned by the CJI Dr D.Y. Chandrachud while Justices Sanjay Kishan Kaul, S. Ravindra Bhat, and P.S. Narasimha penned their own separate judgments. However, on certain issues, the CJI and Justice Kaul formed the minority opinion.

Majority opinion

Relying on Asha Ranjan v. State of Bihar²³ and Gang-Rape Ordered by Village Kangaroo Court in W.B., In re²⁴, it was held that a person’s autonomy to choose a spouse or life partner is an integral part of one’s fundamental right to life under Article 21. Further, relying on Navtej Singh Johar v. Union of India²⁵ and National Legal Services Authority v. Union of India²⁶, it was held that the attribute “sex” is specifically protected under the equality code of Articles 14, 15, 16, 17, 23 and 24 and includes “sexual orientation”. Accordingly, the scope of fundamental right to live with dignity under Article 21 extends to ensure equal access to facilities such as education, social assimilation, access to public spaces, and employment opportunities as held in Nalsa²⁷ paving the way for the enactment of the Transgender Persons (Protection of Rights) Act, 2019, entitling transgender persons to a range of enforceable statutory rights. It was unanimously held that transgender persons have the right to enter into heterosexual marriages under existing legal frameworks.

The Court unanimously held that there is no fundamental right to marry under Article 21. It was held that marriage predates the State and exists independently of the State. However, the subsequent power of the State to regulate marriage would contradict the recognition of marriage as a fundamental right. Further, it was held that recognition can only be achieved by enacted law and the courts cannot compel the State or Government to create a status through a statute.

However, relying on the judgments of Navtej Singh Johar v. Union of India²⁸, K.S. Puttaswamy v. Union of India (Privacy 9-J)²⁹ and Shakti Vahini v. Union of India³⁰, the “right to relationship” of queer people was recognised to fall squarely within Article 21 including the right to choose a partner, cohabit, and other rights flowing from right to privacy, autonomy, and dignity. The Judge, Dr D.Y. Chandrachud, in his opinion, penned that the State is obliged to “recognise a bouquet of entitlements which flow from such an abiding relationship of this kind”. However, Justice Bhat respectfully disagreed with this interpretation, relying on India Bank Employees’ Assn. v. National Industrial Tribunal³¹ and Maneka Gandhi v. Union of India³² he held that one right cannot lead to other rights emanating from it and any further discussion on the rights than the ones identified supra is unnecessary and not called for.

On the challenge to the SMA, relying on Ajoy Kumar Banerjee v. Union of India³³ and D.S. Nakara v. Union of India³⁴, the principle of hostile classification was laid down to be the differential treatment of equals without a reasonable basis. However, relying on the State of Gujarat v. Shri Ambica Mills Ltd.³⁵, it was held that under inclusion or exclusion cannot be characterised as discriminatory unless the excluded category of persons and the included class belong to the same class and therefore classification between heterosexual couples and non-heterosexual couples is not per se discriminatory in this context. Further, the object of the SMA was held to be the facilitation of interfaith marriages, and the non-inclusion of homosexual couples could not be construed to be the object of this Act.

The Judge held that the Special Marriage Act cannot be read down to be gender neutral since the Act strives to achieve a balance in social order that traditionally was tipped in favour of cis-heterosexual men and such an act would be inequitable and expose women to unintended vulnerability. Laws on sexual violence, bigamy, domestic violence, dowry, alimony and maintenance are gendered, and reading down the SMA to be gender neutral, even for argument’s sake would render the legislation unworkable.

The Court also unanimously affirmed the High Court judgment in Arunkumar v. Inspector General of Registration³⁶ and held that transgender persons in heterosexual relations have the right to marry under existing laws and have a right against discrimination under the Transgender Persons Act, 2019.

On the issue of “joint adoption by queer couples”, challenge was laid to Central Adoption Resource Authority (CARA) Regulation 5(3) which stipulated for “stable marital relationship” for at least 2 years in order to be eligible to adopt children for being ultra vires the Parent Act. The Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”) is the Parent Act that allows for delegated legislation to prescribe “any other criteria”. The Court held that the JJ Act makes it clear that adoption is only available jointly for couples and the word “spouse” used later in the legislation should be read applying the principle of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) to interpret that the Act only allows adoption by married couples. It was held that while marriage is not a necessary precondition to ensure a stable home providing a safe space, love, care and commitment to the child, the existing ecosystem of laws regarding maintenance, succession, guardianship and custody of children can only be applied to married couples adopting jointly and not to unmarried couples adopting jointly and therefore allowing the joint adoption by unmarried couples would have disastrous effects on the welfare of the child. Moreover, the object of this legislation is to ensure the well-being of the child and not to enable adoption for all.

However, the judgment recognised that the existing statutory framework excludes homosexual couples from adoption and that they are capable of being equally good parents. To that extent, the State was held to be under an obligation to give equal concern and consideration to this issue and create a legal framework where joint adoption can be extended to such willing unmarried couples while ensuring the legal web of statutory protections and entitlements are guaranteed to the adopted children.

Minority opinion

(per Justice D.Y. Chandrachud, CJI)

The CJI delivered the judgment of the Court, however, some of his conclusions were not concurred with by the rest of the Bench, leading it to be the minority opinion.

It was held that judicial review does not operate in opposition to the doctrine of separation of powers, but rather promotes it by seeing to it that no organ acts in excess of its constitutional mandate. However, in the exercise of judicial review, the Court does not design legislative policy or enter upon the legislative domain and therefore cannot issue directions amounting to enacting a law or framing policy. It was held that the Court will not issue a mandamus to the Parliament but will determine the scope and effect of certain fundamental rights.

The Court held that queerness is a natural phenomenon that is neither recent, modern, nor elite in India, but the colonial past of India has imposed many social prejudices against these communities including inter alia the hijras, kothis, aravanis, thirunambis and nupi maanbis. The constitutional guarantees of liberty and equality have gradually been made accessible to marginalised groups under the democratic framework of India, even extending to the queer communities.

Relying on Indra Sarma v. V.K.V. Sarma³⁷, it was held that a relationship in the nature of marriage is distinct from marriage. It was opined that non-recognition of non-heterosexual marriage denies the petitioners the social and material benefits flowing from the same which have recognised as: (i) matrimonial and child care related benefits; (ii) property benefits; (iii) monetary benefits; (iv) evidentiary privilege; (v) civic benefits; and (vi) miscellaneous benefits. It was further held that access to the institution of marriage is crucial to “individual self-definition, autonomy, and the pursuit of happiness”.

It was held that fundamental rights are characterised as positive and negative rights and relying on Minerva Mills Ltd. v. Union of India³⁸ and Indibily Creative (P) Ltd. v. State of W.B.³⁹, it was held that both characteristics coexist in the Indian constitutional jurisprudence and viewing fundamental rights as purely negative runs the risk of undermining the role of the State. In fact, the fundamental rights guaranteed by the Constitution would become a dead letter if a positive obligation is not read into the State’s powers to create conducive conditions for the exercise of rights. Consequently, the recognition of a fundamental right to marry would lead to a corresponding obligation to establish the institution of marriage and the court rejected the existence of such an obligation. However, while holding that the Constitution does not expressly recognise a fundamental right to marry, the CJI also held that many constitutional values including the right to life and personal liberty are entailed in a marital relationship.

The CJI, on the issue of the constitutionality of the SMA held that even if the court holds Section 4 to be unconstitutional as it is underinclusive to the extent that it excludes the marriage between same-sex couples, such determination is futile due to the limitations of the court’s power to grant a remedy as under the doctrine of separation of powers. Only the Parliament can determine whether a change should be brought into the legislative regime of the Special Marriage Act (SMA). The object of this progressive legislation was to allow for marriages between interfaith and inter-caste couples and the reading down of Section 4 would defeat this purpose and take India back into the pre-independence era where two people from different backgrounds could not celebrate their love in the form of marriage.

It was held that queer people have the right to enter into a union which is grounded in Articles 19(1)(e), 21 and 25 and while this union is different from that of marriage, certain legal consequences such as access to the body of a deceased spouse, flow from this right. A restriction on the right to enter into a union based on sexual orientation would be violative of Article 15 since “sex” is a protected attribute under the same.

The CJI held that conversion therapies or forced heterosexual marriages to “cure” queerness are violative of the right to health, autonomy and dignity and also in violation of Article 5 of the Universal Declaration of Human Rights (UDHR) and Article 7 of the International Covenant on Civil and Political Rights (Iccpr). Section 29 of the Mental Healthcare Act states that “appropriate Government shall, in particular, plan, design and implement public health programmes to reduce suicides and attempted suicides in the country”. It was held that it is the duty of the State to ensure that the cruel practice of conversion therapies, discrimination and violence meted out to queer people as discussed in Navtej Singh Johar case⁴⁰ is prevented. TheCJI directed the Union and State Governments to carry out the mandate of Section 29 by including appropriate modules or provisions to address the unique concerns of the queer community.

On the issue of adoption, the CJI held that CARA exceeded its authority being prescribing the additional condition requiring 2 years of stable marriage to be eligible for adoption when the Parent Act provides for no mandatory requirement of marriage and that the usage of the term “stable” is vague and therefore Regulation 5(3) exceeds the scope of the JJ Act. Further, it was held that the classification of married and unmarried couples fails the test of reasonable classification since there is no rational nexus with the object sought to be achieved as there is no evidence to support the claim that only married couples can provide stability and act in the child’s best interests. The CARA notification issued in 2022 disqualifying a single parent in a live-in relationship from adoption was also held to be exceeding the scope of the Adoption Guidelines and the JJ Act and also violative of Article 15 of the Constitution as it excludes and reinforces the disadvantages of the queer community. The Chief Justice directed the Union Government, State Governments, and Governments of Union Territories to:

“(i) Ensure that the queer community is not discriminated against because of their gender identity or sexual orientation.

(ii) Ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public.

(iii) Take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder.

(iv) Establish hotline numbers that the queer community can contact when they face harassment and violence in any form.

(v) Establish and publicise the availability of ‘safe houses’ or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination.

(vi) Ensure that ‘treatments’ offered by doctors or other persons, which aim to change gender identity or sexual orientation are ceased with immediate effect.

(vii) Ensure that inter-sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations.

(viii) Recognise the self-identified gender of all persons including transgender persons, hijras, and others with socio-cultural identities in India, as male, female, or third gender. No person shall be forced to undergo hormonal therapy or sterilisation or any other medical procedure either as a condition or pre-requisite to grant legal recognition to their gender identity or otherwise.”

A number of directions were also issued to the police machinery as well to:

1. Prohibit harassment of queer couples by the police.

2. Ensure that a queer person is not forced to return to their “natal families if they do not wish to return to them.”

3. Uphold the queer person’s freedom of movement.

4. Extend protection to queer persons facing violence from their natal families.

5. Carry out a preliminary investigation before registering a first information report (FIR) against a queer couple.

Concurring opinion

(per Justice S.K. Kaul)

The Judge held that by explicitly referring to marriage in heterosexual relationships, the SMA creates two distinct and intelligible classes—— heterosexual couples eligible to marry and non-heterosexual couples ineligible to marry which has no nexus to the object of the statute thereby violating Article 14. If the object of the Act is to only regulate heterosexual marriages, then such an objective would be unconstitutional as “sex” is a protected class under Article 15. Relying on Central Inland Water Transport Corpn. v. Brojo Nath Ganguly⁴¹ and various judicial pronouncements in South Africa, it was held that constitutional values should be read into the interpretation of statutes and legislations that confer benefits based on marriage should be construed to include civil unions as well.

The Judge also called for the horizontal application of anti-discriminatory laws protecting queer people in the spirit of Article 15. For this, he recommended the proliferation of remedies through an anti-discrimination statute in furtherance of securing social order and promoting justice and social welfare under Article 38 of the Constitution of India.

*           *           *

(9) Balram Singh v. Union of India⁴²

(Delivered on 20-10-2023)

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

Authored by: Justice Ravindra Bhat

The petition arose under Article 32 seeking directions to respondent (Union of India and all the States and Union Territories) to implement provisions, inter alia, of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (, “Act of 1993”) and the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (, “Act of 2013”).

It was held that the 2013 Act not only criminalises manual scavenging but Sections 11 to 16 of the Act form an entire code insofar as rehabilitation is concerned. The first step to rehabilitation is the conduction of a survey envisaged in Sections 11 and 14. Section 11(7) r/w Section 6(2) emancipates manual scavengers and they stand discharged of any obligation to work as manual scavengers. They are consequently empowered through rehabilitation and therefore the Act must be interpreted as operating in furtherance of fraternity, assuring the dignity of the individual.

The methodology to conduct the survey is laid down in the Act of 2013, however, the trigger for conducting such survey is absent from the Act as well as the Rules framed thereunder. Relying on Swaraj Abhiyan v. Union of India⁴³, the Court held that the implementation of such an Emancipatory Act cannot be left to the whims and fancies of the local bodies and the Central and State Governments must lay down guidelines on when surveys are to be conducted and by which local bodies as our constitutional scheme does not allow parliamentary enactments to be rendered dead letter by executive inaction.

Relying on All India Council of Trade Unions v. Union of India⁴⁴ and Vimla Govind Chorotiya v. State of Maharashtra⁴⁵ and applying the principle of “where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden”, it was held that a survey not done in compliance with the Act and Rules framed thereunder would be invalid. Studying the data recorded in the 2013, 2018, and 2020 surveys, and comparing these numbers with the data regarding the total number of insanitary latrines in multiple areas, the court found that there were many inconsistencies in the data. Section 11 of the Act r/w Rule 11(2) requires the State Level Sanctioning Committee (SLSC) and DLSCs to carry out adequate campaigns in all areas, especially in areas where insanitary latrines are found and the surveys carried out clearly violate these laws.

The Court held that another shortcoming in implementing the 2013 Act was that the Central Governments had not correctly constituted all the institutions required to implement the Act. These include: (a) the National Commission for Safai Karamcharis which was found to not be functional during the years 2022-2023; (b) the State Commissions for Safai Karamcharis which were neither functional nor meeting regularly; (c) the Central Monitoring Committee which was not meeting every six months as it is required to under Section 29(3); (d) the State Monitoring Committees; (e) the Vigilance Committees; and (f) Survey Committees which have only been constituted in 3 States — Rajasthan, Karnataka and West Bengal.

The Court further held that the statutory scheme does not provide for rehabilitation for hazardous workers, but only for manual scavengers even though both classes of workers are a manifestation of untouchability which has been abolished through Article 17 of the Constitution of India. The 2013 Act and Rules provide for the mechanisation of hazardous cleaning through “cleaning devices” and “protective gear”. This too, has been poorly implemented owing to a glaring vacuum of mechanisation and relying on People’s Union for Democratic Rights v. Union of India⁴⁶, lack of such devices and gear in many parts of the country is a violation of the worker’s right to dignity and amounts to forced labour which is violative of Article 23 of the Constitution.

The Court laid down the following directions in view of the above observations:

(1) The Union, all the States and Union Territories shall take appropriate measures and frame policies and guidelines to ensure that manual sewer cleaning is completely eradicated in a phased manner, and no individual should be required to enter sewers, for any purpose whatsoever and that full rehabilitation (including employment to the next of kin, education to the wards, and skill training) measures are taken in respect of such workers.

1. (4) The Court directed the Union and the States to increase the compensation amount in case of sewer deaths to Rs 30 lakhs and set a minimum compensation amount of Rs 10 lakhs in case of disabilities arising due to such work. If the disability is permanent and renders the victim economically helpless, the compensation shall not be less than Rs 20 lakhs. The dependents of such victims shall be given scholarships so that they can receive meaningful education.
2. (7) The Union shall devise a model contract (to also be used by the States and Union Territories), to be used wherever contracts are to be awarded, by it or its agencies and corporations, in conformity with the 2013 Act, and Rules. In the event of any mishap, the agency would lose its contract, and possibly also blacklisted. The authorities are also directed to make policies in furtherance of accountability of the contractors.
3. (8) The National Commission for Safai Karamcharis (NCSK), National Commission for Scheduled Castes (NCSC), National Commission for Scheduled Tribes (NCST) and the Secretary, Union Ministry of Social Justice and Empowerment, shall, within 3 months from today, draw modalities for the conduct of a National Survey which shall ideally be conducted within a year.
4. (11) The National Legal Services Authority (Nalsa) shall also be part of the consultations, toward framing the aforesaid policies. It shall also be involved, in coordination with State and District Legal Services Committees, for the planning and implementation of the survey. Furthermore, the Nalsa shall frame appropriate models (in the light of its experience in relation to other models for disbursement of compensation to victims of crime) for easy disbursement of compensation.
5. (12) The Union, State and Union Territories are hereby directed to ensure coordination with all the Commissions (NCSK, NCSC, NCST) for setting up of State-Level, District-Level Committees and Commissions, in a time-bound manner. Furthermore, constant monitoring of the existence of vacancies and their filling up shall take place. The Commissions, coordinating with the Union are also required to prepare training and education modules, for information and use by district and State-level agencies, under the 2013 Act.
6. (14) A portal and a dashboard, containing all relevant information, including the information relating to sewer deaths, and victims, and the status of compensation disbursement, as well as rehabilitation measures taken, and existing and available rehabilitation policies shall be developed and launched at an early date.

*           *           *

(10) State of Telangana v. Tirumala Constructions⁴⁷

(Delivered on 20-10-2023)

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

Authored by: Justice S. Ravindra Bhat

The batch of appeals was preferred by the States of Telangana, Gujarat as also the assessee petitioners from the Bombay High Court. The Constitution (101st Amendment) Act, 2016 introduced the GST framework conferring new powers upon the Parliament and the State Legislative Assemblies. The pre-amendment constitutional scheme had an arrangement of taxation by the States in the form of VAT and excise duties. The GST was introduced as a constitutional amendment containing a mechanism for harmonious structure of taxation that would not affect the federal fabric. The GST Council was constituted and a single indirect taxation regime was introduced. Article 246-A was introduced in the Constitution, conferring wide-reaching powers on both the Parliament as well as the State to impose taxes on the supply of goods and supply of services respectively. There was a fundamental change to the scheme of legislative relations between the Union and the States by departing from the underlying theory of exclusivity of legislative fields between Parliament and the State Legislature for the purposes of taxation. Section 19 of the Amendment Act determined the expiry period and date of any inconsistent legislation with the GST framework, by providing that law made by the States shall cease to be enforced after the expiry of one year. The State of Telangana amended the State VAT Act in a way to prolong or extend the period of limitation for issuing notices of reassessment and reopen cases as well as extend the period of limitation for deciding pending revisions and proceedings. The limitation was increased to four years in the existing law, which was challenged before the Telangana High Court. Similarly, the time limit for the similar purpose of reopening of assessment proceedings was extended in the case of Gujarat as well. The question that fell for consideration was whether these legislations were inconsistent with Section 19 of the Amending Act.

The court in the process of reasoning distinguished between a Constitutional Law Amendment and an Act of Parliament. Constitutional Law arises out of the Constitution, whereas ordinary law can be made and altered by the same legislating body whilst exercising legislative power. The constitutional law or amendments related to the fundamental law of the land can be achieved only through fulfilling the special procedure laid down under Article 368 of the Constitution. However, it is always open to the Parliament to vest in an outside agency the power to bring the constitutional amendment into force, which has been enacted. Thus, Section 19 was held to be a provision that was enacted in exercise of the “constituent power” and not mere parliamentary enactment. It cannot be treated as a legislative device, but was adopted as a 101st Constitutional Amendment and introduced as part of the same Amendment Act which entirely revamped the Constitution. Sections 19 and 20 constitute incidental and transitory provisions that have limited life and it is really academic whether they became part of the Constitution or not.

On the impact of Section 19 on the power of amendment or repeal of the States, it was held that Section 19 was akin to Article 243-ZF which was inserted along with 73rd and 74th Amendments to the Constitution of India. Referring to the judgment of Bondu Ramaswamy v. BDA⁴⁸, it was held that provisions like Article 243-ZF and Section 19 are provisions enabling continuation of any provision of a law relating to municipalities in spite of such provision being inconsistent with the newly enacted constitutional provisions. The benefit of such an article only in regard to laws relating to the same field, nor can they be employed to test the validity of any enactment, which is not overlapping in its subject-matter. Therefore, only such inconsistent provisions are invalid by virtue of operation of Section 19, which are overlapping of the same subject-matter, and not all others.

Section 19 r/w Article 246-A were held to be expressing a field of legislation available to both the Parliament and the State Legislatures in furtherance of the status quo for a limited period of time. It constitutes the expression of a sovereign legislative power, available to both Parliament and State Legislature to make necessary changes through amendment of the existing laws. It could therefore enact provisions other than those bringing existing provisions in conformity with the amended Constitution.

The Court then examined the validity of ordinance issued by the State of Telangana. It was held that “theory of lasting effect” of any Ordinance cannot be supported and that an Ordinance cannot bind or be effective on those transactions that had occurred or taken place during its validity, after it ceases to exist. Referring to the Constitution Bench judgment in Krishna Kumar Singh v. State of Bihar⁴⁹, it was held that rights, privileges, obligations that arise during the validity/tenure of the Ordinance cannot continue to exist or they cease to operate, once the Ordinance expires. Referring to Article 213 of the Constitution of India, especially the phrase “shall cease to operate”, it was stated that the consequence of the Ordinance ceasing to operate on its expiry would relate back to the validity of the Ordinance. There is no specific mention or provision under the Constitution of India for saving of rights, privileges, obligations, or liabilities that arise under any Ordinance during its substance and therefore the “enduring rights”theory cannot be applied to ordinance having a limited shelf life. However, the Ordinance issued by the State of Telangana was void since the power had been lost by virtue of the time period laid down under Section 19.

In the context of Gujarat and Maharashtra, the Court held that retrospective effect to the amending legislations could not have been given effect to after coming into force of the GST laws. The State Legislature was not competent to enact the curative legislation as done in the matter with retrospective effect, primarily because it lacked in legislative competence on the said date.

Accordingly, the appeals against the Bombay High Court by the assessees were allowed and the judgments of the Telangana and Gujarat High Courts were upheld dismissing their respective appeals.

*           *           *

(11) Tamil Nadu and Puducherry Paper Cup Manufacturer Assn. v. State of T.N. ⁵⁰

(Delivered on 20-10-2023)

Coram: 2-Judge Bench of Justices S. Ravindra Bhat and P.S. Narasimha

Authored by: Justice S. Ravindra Bhat

The High Court dismissed the writ petition challenging the government order banning manufacture, storage, supply, transportation, sale, distribution and use of “one-time/single-use and throwaway plastics”. The appellants were associations representing manufacturing units involved in the manufacture of “reinforced” paper cups, and that of nonwoven plastic cups. The government order was issued by the State of Tamil Nadu (Environment and Forest Department) under Section 5 of the Environment (Protection) Act, 1986 (“EPA”), through which the ban was imposed along with certain exemptions from various categories of plastic carry bags. Representation was made by the appellant Paper Cup Association to the Government to reconsider and exempting them from the ban, which all went in vain. The said was laid to challenge on multiple grounds, which was rejected by the Madras High Court. On the contention that ban could not be imposed by the State, but only by the Union, it was held interpreting Section 5 of the EPA read with Rule 4 of the Environment (Protection) Rules, 1986, that State Government has been delegated powers by the Ministry of Environment and Forest, Government of India for delegating powers to issue directions in environmental interest wherever there is a likelihood of grave injury to the environment. The argument was thus repelled holding that the State has the legislative competence to impose a ban of the kind contained in the government order and that the set power was not exercised ultra vires. Rule 4 was held to be mandatory, insofar as it provided a pre-decisional hearing, opportunity to file objection to the aggrieved/affected stakeholders. Referring to the judgment of Liberty Oil Mills v. Union of India⁵¹, Dharampal Satyapal Ltd. v. CCE⁵², it was held that a closer look at Rule 4(5) of the 1986 Rules reveals dispensing with the “pre-decisional hearing”, and substituting with the “post-decisional hearing”. In the present case though pre-decisional hearing was not granted, however though the Rules were notified, they were never enforced immediately and the ban was made effective only after more than a passage of one year. The court keeping in mind the larger public interest sought to be subserved by the government order, viz. of protecting the environment, held that the ban was effective after affording sufficient opportunity to represent and make their views known to all the appellant association. Therefore, though the mandate of the Rules called for pre-decisional hearing, in the peculiar facts of the case, interest of justice justifying such infraction should not result in the invalidation of the notification. The opportunity of hearing and raising objections was provided sufficiently and thus the decision could not be held to be vitiated on the ground of compromising the principles of natural justice.

On the challenge to the ban on merits, it was held that the ban was imposed on the basis of the report submitted by IIT and expert bodies with respect to the usage and circulation of plastic cups manufactured by the appellants’ association. The expert studies have concluded that paper cups manufactured by the appellants are deleterious to the environment, which are impossible to be recycled due to their low-density polyethylene coating. Thus, ensuring a pollution-free environment restriction was held to be reasonable as per Article 19(6) of the Constitution of India.

However whilst examining the challenge to non-woven plastic bags, the Court referring to very same Expert Committee Reports held that unlike reinforced paper cups, non-woven plastic bags are reusable, recyclable and capable of some level of biodegradation, but no Committee was constituted to look into it more closely and the ban was imposed subsequently on the same by way of clarification. The ban therefore deserves further scrutiny. The Court referred to the Plastic Waste Management Rules, 2016, specifically, the definition of biodegradable plastics, to hold that since non-woven plastic bags of about 60 GSM were allowed to be manufactured and used, the Centre has regulated it, instead of banning it. The ban therefore on all the categories of non-woven plastic bags was held to be “disproportionate” and “unreasonable”, since a less onerous restriction on the appellant’s right under Article 19(6) right is possible. Accordingly, the question of review and re-scrutiny of the ban on non-woven plastic bags was remanded back to the Tamil Nadu Pollution Control Board for reconsideration. Accordingly, the appeals were disposed of.

*           *           *

(12) Ankita Thakur v. H.P. Staff Selection Commission⁵³

(Delivered on 9-11-2023)

Coram: 2-Judge Bench of Justices Hrishikesh Roy and Manoj Misra

Authored by: Justice Manoj Mishra

Challenge was laid to the judgment of Himachal Pradesh High Court, relating to recruitment on the post of Junior Office Assistant, Class III (Non-gazetted) post under the State Government. The dispute related to essential qualification of procurement of computer course diploma from recognised institutes of State of Himachal Pradesh or notified Central Agencies, like National Institute of Electronics and Information Technology (NieLit). In two sets of selection and advertisement issued in the year 2015 and 2016, candidates who were possessing the said diploma from the private institutes were also allowed to participate in the selection process, whereafter they cleared the same. Permitting the originally ineligible candidates by High Court led to eligible candidates also challenging the selection process, as also the judgment of the High Court before the Supreme Court of India. Thus, there were two sets of litigants before the Supreme Court, one set being those whose candidature got rejected because they failed to meet the eligibility criteria under the 2014 Rules as also the advertisement. The other set related to those candidates was aggrieved by relaxation of the eligibility criteria as it expanded the zone of consideration and thereby reduced their chances of selection. The Court referring to Section 31 of the Himachal Pradesh Takniki Shiksha Board Act, 1986 ( “Act of 1986”), held that relaxation of the clarification relaxing the eligibility criteria relating to the two advertisements were made without consultation with the Himachal Pradesh Public Service Commission.

The Court held that there cannot be any relaxation in the terms and conditions of the advertisement, unless such a power is specifically reserved, specified in the Rules and specifically mentioned in the advertisement. Even thereafter, relaxation must be made with due publicity and publication of any condition in the advertisement, failure to do which vitiates the whole selection process. In the present case, since the advertisement did not reserve the power to relax the essential eligibility criteria at any later stage, therefore the said power to relax the eligibility were never possessed by the selecting agency. Thus, exercise of such relaxation dehors the specific stipulations of the advertisement violated and flouted Articles 14 and 16 of the Constitution of India.

It was further held that as per Rule 7 of the 2014 Rules, one year diploma in Computer Science/Computer Application or elite courses was the essential qualification. The Court held that clarificatory/relaxation orders providing equivalence to certain courses was not founded on empirical data that courses identical, or by and large identical, to the one specified in the extant Rules were being conducted by various recognised institutions or universities under different nomenclatures. It impliedly recognised certain courses/diploma obtained from a private institution, like from society registered under the Societies Registration Act without examining whether under the extant statutory regime they could be considered recognised or equivalent. Thus, the relaxation amounted to changing the eligibility criteria midway as the advertisement stipulated that diploma/specified course had to be from recognised institution/university, whereas candidates even from private universities were allowed to compete and participate. It was further held that the High Court could not have drawn an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower qualification. The said prescription is a matter of recruitment policy and in the absence of a specific statutory rule, it could not have been held that higher qualification presupposes lower qualification. Referring to the judgment of Zahoor Ahmad Rather v. Imtiyaz Ahmad⁵⁴, it was held that there was no provision in the applicable Rules and the advertisement to treat any other qualification as higher or equivalent to the one specified therein, the claim of such candidates, who could not demonstrate that they held the prescribed essential qualifications. The judgment of the High Court was set aside, it was held that relaxations to the eligibility criteria were unfounded, unjustified in law contrary to the original stipulation in the advertisement.

*           *           *

(13) Dilip B. Jiwrajka v. Union of India⁵⁵

(Delivered on 9-11-2023)

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

Authored by: Justice Dr D.Y. Chandrachud

Challenge in the present matter was laid to the constitutional validity of Sections 95 to 100 of the Insolvency and Bankruptcy Code, 2016 ( “IBC”) in the writ petitions preferred under Article 32 of the Constitution of India. The aforementioned sections assailed before the Supreme Court fell under Chapter III of Part III of the IBC, that related to insolvency resolution and bankruptcy for individuals and partnership firms. Prior to enactment of IBC, the said dispensation was governed by the provisions of the Presidency-Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920, both of which were repealed. The whole anatomy of Sections 95 to 100 was discussed by the Supreme Court and thereafter 3 duties of the resolution professionals (RP) were inferred as falling from the scheme of Sections 98 and 99, that related to examination of the application preferred by the debtor or the creditor, followed by the submission of the report to the adjudicating authority recommending for approval or rejection of the application. The three-fold functions which the RP is expected to perform under Section 99 of the IBC were held primarily to be as follows:

(i) the duty to examine the application submitted by the debtor or the creditor;

(ii) the submission of a report; and

(iii) the incorporation of recommendations in the report either for the approval or the rejection of the application which has been submitted by the debtor or the creditor.

Whilst repelling the challenge to the constitutionality of the impugned provisions, the court compared the statutory scheme of Parts II and III of the IBC. Part III was held to be specifically dealing with insolvency resolution and bankruptcy for individuals and partnership firms, as opposed to the previous parts, that related to corporate debtors who commit default. Chapter III of Part II deals with distinct eventualities viz. initiation of liquidation broadly in situations where the resolution plan has not been received or resolution plan is rejected by the adjudicating authority for non-compliance of requirements specified for approval resolution plan in Section 31. Court held that the role of RP under Part II is entirely distinct from his role under Part III. The obligations placed upon the RP under Section 99 cannot be construed as a bar qua the adjudicatory function of the adjudicating authority. The information sought by the RP is in the aid and facilitation of his duty to examine the application and submit the report either recommending the approval or rejection of the application. The resolution professional may either recommend the acceptance or rejection of the application by submitting a report to the adjudicating authority, after examining the application and ascertaining whether the application satisfies the requirements of Sections 94 and 95 and whether applicant has provided the information as sought from him statutorily. RP does not possess any adjudicatory functions under Section 99, but is simply interposed before the adjudicatory function sought to be exercised by the adjudicating authority under Section 100. His role is that purely of the facilitator; to gather relevant information on the basis of application submitted under Sections 94 and 95, or in short to examine, ascertain and ensure the application satisfies the statutory requirements and thereafter recommend to the adjudicating authority. The adjudicating authority is not bound by the recommendation of the RP. This is to prevent the flooding of frivolous applications at the doorsteps of adjudicating authority, which are filtered and sieved by the RP.

The court then examined the impact of the moratorium under Section 14 of Part II vis-à-vis the interim moratorium imposed on the directions of RP under Chapter III of Part III. It was held that moratorium under Section 96 is specifically intended to be in respect of the “debt in question” and not at all encompassing debt of the debtor. However, the purpose of the moratorium under Section 96 is protective, to insulate the corporate debtor from the institution of legal actions or the continuation of the legal actions or proceedings in respect of the said debt.

The Court further held that the adjudicatory function of the adjudicating authority commences under Part III after submission of the recommendatory report by RP, and that the legislature has carefully calibrated the following three different stages in the statutory scheme of Part III:

(i) the role of the resolution professional;

(ii) the imposition of the moratorium; and

(iii) the stage at which the adjudicating authority steps in under Part II, on one hand, and Part III, on the other.

The scheme was thus held to be possessing intelligible differentia between the nature of the insolvency resolution process in the case of a corporate debtor, on the one hand, with individuals and partnerships on the other.

On the ground of applicability of the principles of natural justice, it was held that role of RP as a facilitator is simply to collate facts, and that RP does not decide any issue in the absence of sufficient opportunity being provided to the debtor to furnish an explanation or to produce material evidencing the payment of the debt. Roving enquiry is not contemplated to be vested with the RP, but a limited inquiry only for the purposes of making the ultimate recommendation on nature and within the confines of the application itself. The expression “in correction with the application” clearly signifies the parliamentary intent of submitting a report either recommending the acceptance or rejection of the application together with the reasons in support of the report after conducting enquiry strictly in relation to the application. The process therefore before the RP is not an ex parte process, undertaken in the absence of debtor, but the recommendation has to be preceded by consideration of the information or any explanation that may be furnished by the debtor. There is no question of the element of bias, so nominated by the creditor. Referring to the judgment of Ravi Ajit Kulkarni v. SBI⁵⁶, the debtor always retained the option to replace the RP appointed under Section 97 by filing the appropriate application with the adjudicating authority, in the event of tangible bias appearing on the part of RP nominated by the creditor. Even otherwise, there is sufficient role for the adjudicating authority, to whom the recommendation is forwarded and furnished by the RP and thus sufficient opportunity of hearing is provided by the adjudicating authority to the debtor. The adjudicating authority is expected to conduct an independent assessment, not solely on the basis of the RP’s report.

Accordingly, it was held that the nature of the resolution professional’s role, the powers and its nexus with legitimate aim of the legislation leads clearly to the conclusion that impugned provisions are compliant with Article 14 of the Constitution of India and they are not unconstitutional. The constitutionality of the assailed provisions were therefore affirmed and challenge was repelled by the Supreme Court with the dismissal of the writ petitions.

*           *           *

(14) State of Punjab v. Governor of Punjab⁵⁷

(Delivered on 10-11-2023)

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

Authored by: Justice D.Y. Chandrachud

Jurisdiction of the Supreme Court under Article 32 of the Constitution of India was invoked by the State of Punjab aggrieved by the action of the Governor of not assenting to various bills passed by the Vidhan Sabha and inaction in recommending the introduction of certain money bills in the Vidhan Sabha. The Session of the Vidhan Sabha convened earlier on 3-3-2023 was adjourned sine die by the Speaker. Thereafter, the Speaker reconvened the sitting of Session of Vidhan Sabha in June 2023, when four bills were passed by the State Legislature. However, when these bills were sent for ratification/approval to the Governor, no action was taken by the Governor on the same. Similarly, for introduction of various money bills, recommendation of the Governor in terms of Article 207 of the Constitution of India was required. However, the Governor in both the cases proceeded for procuring legal advice and deferred both the proposals. The Governor also did not declare “in any public notification about withholding his ascent to the bills”.

Referring to the Constitution Bench judgment in Samsher Singh v. State of Punjab⁵⁸, the Court held that the Governor as an appointee of the President of India is the titular head of State. He exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers, under a parliamentary and responsible form of Government and not a presidential form of Government. The powers of the Governor akin to the President as the constitutional head are no different. Referring further to the judgment State (NCT of Delhi) v. Union of India⁵⁹, it was held that the role of institutions in achieving democracy is significant and nations fail when institutions of governance fail. Lack of statesmanship and responsiveness of institutions to democratic principles determines the robust and healthy working of the system.

Accordingly, it was held that the Governor has three options available when a Bill which has been passed by the State Legislature for assent viz. (i) either that he assents to the Bill; or (ii) that he withholds assents therefrom; or (iii) that he reserves the Bill for the consideration of the President. The Governor is “entitled to declare” of withholding his consent or about the returning of the bill forwarded to him, in terms of the mandate of the proviso. The legislature of the State is duty-bound to reconsider the bill on being returned by the Governor, and once the Bill is passed again then the Governor is bound to grant assent thereof. Interpreting the first proviso to Article 200, the Court held that the powers of Governors are extremely limited when it is reserved for the consideration of the President in specific conditions postulated therein. Proviso to Article 200 fills the purpose of being an exception and the Governor may send the bill back to the State Legislature for reconsideration when he believes the bill in its entirety suffers from infirmity, not otherwise. The proviso to Article 200 mandates and restrains the Governor from withholding his assent once it is returned by the State Legislature in the second round. This is compatible with the fundamental tenet of a parliamentary form of Government where the power to enact legislation is entrusted to the elected representative of the people and not the Governor, and discretion of whether to accept the advice of the Governor or not vests entirely in the State Legislature. The phrase “as soon as possible” appearing under Article 200 obligates and conveys a constitutional expedition on the part of the Governor. The Governor under Article 168 is part of the legislature and bound by the constitutional regime.

On the question of recommendation for money bills, it was reiterated that the Governor cannot sit upon or delay the recommendation of money bills, in terms of Article 191(1). Accordingly, the Governor was held not to be justified in withholding his assent or recommendations of assent to various bills or the recommendation for passing of a money bill.

On the second issue of reconvening of sitting of the Vidhan Sabha, adjourned sine die and the powers of the Speaker, the Court delineated the difference between adjournment and prorogation. Referring to Article 174, and commentary of Kaul and Shakdher on the Practice and Procedure of Parliament⁶⁰, “prorogation” was explained to mean termination of a Session of a House of Parliament by an order made by the President under Article 85(2) of the Constitution of India. The prorogation of the House follows the adjournment after the sitting of the House, but the said decision can only be taken on the aid and advice of the Council of Ministers. If the prorogation does not happen, then holding of summons and summoning of Lok Sabha/Vidhan Sabha can happen in two parts also with adjournments in between. The Court referred to various instances of reconvening of adjourned sitting of the House in the case of Lok Sabha on very many occasions. Also, whenever the Session of Vidhan Sabha is prorogued, a formal notification in the Official Gazette is necessary to be introduced and all pending notices lapse on the prorogation of the House. Referring to the provisions of the Rules of Procedure framed by the Punjab Vidhan Sabha, it was held that the Speaker was authorised and empowered to reconvene the sitting of Vidhan Sabha, which was “adjourned” sine die, but not “prorogued”. Rules of procedure of various States were referred in the said regard to hold that the Speaker possesses such powers to reconvene Session of the adjourned Vidhan Sabha as a common practice for both Parliament as well as State Legislatures. Referring to the judgment of Ramdas Athawale (5) v. Union of India⁶¹, Court distinguished between the two terms of “adjournment” and “prorogation”, to hold that since Punjab Vidhan Sabha was simply adjourned, not prorogued, therefore the Speaker was always empowered to reconvene the sittings of the House within the same Session.

Referring to Article 178 r/w Article 212 of the Constitution of India, it was held that the Speaker is the guardian of the privileges of the House, spokesman and representative upon all the occasions. Decision of the Speaker in whom powers are vested to regulate the procedure and conduct of the business is final and binding on every member of the House. Therefore, decisions about adjournment and reconvening/resuming sittings of the House could not be inquired into on any ground of any irregularity or procedure by the court. The control of the Speaker in conduct of both of the legislative business of the House and matters pertaining to its adjournment is final. Thus, there is no valid constitutional basis to cast doubts upon the powers of the Speaker or for the Governor to withhold his assent to the bills passed by the Vidhan Sabha or to question the validity of Sessions of Vidhan Sabha, so summed and requisitioned by the Speaker. Accordingly, the Governor of Punjab was directed by the Court to take decisions on the bills submitted for his assent as also to recommend for passage of money bills.

*           *           *

(15) Vivek Kaisth v. State of H.P.⁶²

(Delivered on 20-11-2023)

Coram: 2-Judge Bench of Justices C.T. Ravikumar and Sudhanshu Dhulia

Authored by: Justice Sudhanshu Dhulia

Challenge was laid to the judgment of the Division Bench of the Himachal Pradesh High Court through which appointment of the appellants to the post of Civil Judge (Junior Division) was quashed. The said appointment was quashed on the ground that the two names, one included after finalising of the merit list on issuance of notification formally appointing the previous batch of Civil Judges, whereafter the two appellants also came to be appointed, after publication of the list of 6 Civil Judges on the Himachal Pradesh Public Service Commissions (Hppsc) website. Interestingly whilst affecting appointment, the Deputy Secretary to the Government of Himachal Pradesh had sought for existing and anticipated vacancies in the lower judiciary of State of Himachal Pradesh. The High Court had, in a Bench of writ petitions directed the Hppsc to include names of petitioners as the additional candidates, when they were participating in the selection process and a list of additional candidates was proposed to be prepared. Thus, the Court was concerned with the primary issue as to whether names of the petitioners were rightly included in the select list issued subsequent to release of the first list. The court for resolution of the abovereferred to the judgment of Malik Mazhar Sultan (3) v. U.P. Public Service Commission⁶³, to arrive at the conclusion and findings in response to the issues framed by it. In the previous order, three categories of vacancies were directed to be advertised by all the High Courts and filled timely, which were as follows:

“(a) Existing vacancies.

(b) Future vacancies that may arise within one year due to retirement.

(c) Future vacancies that may arise due to promotion, death or otherwise, say ten percent of the number of posts.”

However, with respect to the third category mentioned above, confusions arose and again through its subsequent order dated 24-3-2009 passed in Malik Mazhar Sultan v. U.P. Public Service Commission⁶⁴, it was held that the unforeseen vacancies to be filled in anticipation would be in respect of the sanctioned posts, and not vacancies arising in a particular year. Thus, the High Courts/PSCs were directed to notify only the existing number of vacancies along with anticipatory vacancies for the next one year and a small and short waiting list. The earlier order was thus modified by the Supreme Court. Thus, the third category has ceased to exist as mentioned above and was restricted to future vacancies arising within one year on the date of advertisement on the places of retirement, death or superannuation of judicial officer.

Referring to the judgment of High Court of Kerala v. Reshma A.⁶⁵, it was held that there must always be harmonious construction and interpretation between the Service Rules, directives of the Supreme Court and Articles 14 and 15 of the Constitution of India. Directives of the Supreme Court in Malik Mazhar Sultan case⁶⁶, cannot be implemented in a way as to lead to interference or flaunting of respective Service Rules framed by the respective High Courts. The phrase “probable number of vacancies” meant and implied the existing vacancies in any year and the vacancies anticipated to occur during the year without trenching upon the future vacancies to arise in succeeding years. Appointments as it is can never be made over and above the vacancies that have been advertised, except in an emergency situation. Referring to the judgment of Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat⁶⁷, and Hoshiar Singh v. State of Haryana⁶⁸, it was held that the Public Service Commission cannot recommend more names than what have been advertised and any appointment made in excess to the vacancies that have been advertised would be arbitrary and violative of Article 14 of the Constitution of India. They also elaborated upon the concept of waiting list, which was also required to be prepared by the Hppsc and the High Court affecting selections to judicial posts. Elaborating on the meaning of the phrase “waiting list” by relying upon the judgment of Gujarat State Dy. Executive Engineers’ Assn. case⁶⁹, Court held that the purpose of the waiting list is that when selected candidates are unable to join the post for any reason whatsoever, the post should not go vacant and a shortfall of candidates can be met from the candidates who are placed in the waiting list. The candidates in the waiting list have no vested right to the appointment, except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason or the other, the candidate placed in the waiting list gets a right to be appointed against the unfilled leftover vacant seats.

It was further held that vacancies which could not be anticipated before the date of advertisement, or the vacancies which could not exist at the time of advertisement are the vacancies of/for the future, that is the next selection process. On the basis of an advertisement issued, appointments cannot be affected to the vacancies that are likely to arise in future after the issuance of advertisement. Thus, the appointment of the appellants (Vivek Kaisth and Akansha Dogra) was made on post that were not advertised and in fact did not even exist at the time when advertisements were made. Thus, their appointment themselves however were inherently illegal. The findings of the High Courts were thus affirmed and upheld by the Supreme Court on this core.

However, in view of the fact that both the writ petitioners (respondents) had served as judicial officers for nearly 10 years, without any blemish and there was nothing on the record suggestive of the fact that any mala fides were behind the selection of Respondents 4 to 6, therefore, resorting to the Article 142 of the Constitution of India, Court held that it would be inequitable if they are thrown out of the post after serving the institution for so many years and gaining the experiences after rendering services for so long. The Supreme Court placed the blame for illegal selection and appointment on the High Court also (on the administrative side), which allowed the appointments to continue and allowed them to serve for almost 10 years. Thus, relying on the Constitution Bench judgment of Sivanandan C.T. v. High Court of Kerala⁷⁰, it was held that it would not be in public interest to unseat or remove both the petitioners from post. Accordingly, the special leave petitions were disposed of, whilst clarifying that observations made regarding the illegal appointment or selection of the petitioner shall not come in the way of their judicial career.

*           *           *

(16) Priya Indoria v. State of Karnataka⁷¹

(Delivered on 20-11-2023)

Coram: 2-Judge Bench of HM Justices B.V. Nagarathna and Ujjal Bhuyan

Authored by: HM Justice B.V. Nagarathna

A matrimonial dispute between an estranged wife and husband residing in the States of Rajasthan and Karnataka respectively lead to the lodging of an FIR by the appellant wife in Chirawa Police Station under Sections 498-A, 406 and 323 IPC against the husband and his family. The Additional City Civil and Sessions Judge, Bengaluru City, allowed the anticipatory bail applications by the respondent husband and his family. Aggrieved by this, the wife filed a writ petition which was dismissed by the High Court. Reference to the Division Bench arose from a special leave to appeal considering the ramifications that would arise in the context of Section 438 CrPC and the jurisdiction of the Sessions Court or High Court concerned to grant pre-arrest bail, when the FIR is not registered within the territorial jurisdiction of a particular district or State but in a different State.

Relying on Gurbaksh Singh Sibbia v. State of Punjab⁷², it was held that the denial of bail amounts to deprivation of personal liberty under Article 21 of the Constitution of India and therefore, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 CrPC which applies on the presumption of innocence of an accused who has not been convicted on the date of filing the application. Taking into consideration subsequent reports by the Law Commission of India and other doctrinal developments, the Constitution Bench in Sushila Aggarwal v. State (NCT of Delhi)⁷³, held that protection granted by Section 438 CrPC should not be limited to a specified time period and the life of such anticipatory bail does not end when the accused is summoned by the court. The court traced the history of judicial precedents regarding anticipatory bail and concluded that the march of criminal law has been towards chiseling an equitable remedy that strikes a delicate balance between the imperative of personal liberty with that of effective administration of criminal law.

Relying on Anita Kushwaha v. Pushap Sudan⁷⁴, it was held that “access to justice” is encompassed within the scope of right to life under Article 21 and includes not only the access to a legal system that is effective in function, just, fair and objective in its approach but also conveniently approachable and affordable.

Referring to Maxwell’s treatise on Interpretation of Statutes (10th Edn.), the Court held that statutes like the CrPC are interpreted with rational regard to the aim and intention of the legislature and such interpretation should be favourable and in tune with the avowed notions of personal liberty. If Parliament intended the phrase “the High Court or the Court of Session” to mean the court of that specific territorial jurisdiction, the same would have been made clear. The legislative intent behind Section 438(1)(iv) CrPC is to prevent the humiliation of the persons who apprehend arrest, especially in politically motivated, false or malicious prosecution cases and Section 438 CrPC seeks to remedy apprehension of wrongful arrest. In this light, an interpretation barring jurisdiction to grant anticipatory bail would be an anomalous and unjust consequence for bona fide applications and such a restrictive interpretation would undermine the fundamental right to personal liberty and access to justice which are protected under Article 21.

The Court held that the High Court or the Court of Session could grant a limited form of anticipatory bail in form of an interim protection under Section 438 CrPC with respect to FIR registered outside the territorial jurisdiction of such court being subjected to the following conditions:

(a) Prior to passing an order of limited anticipatory bail, the investigating officer and public prosecutor who are seized of the FIR shall be issued notice on the first date of the hearing, though the court in an appropriate case would have the discretion to grant interim anticipatory bail.

(b) The order of grant of limited anticipatory bail must record reasons as to why the applicant apprehends an inter-State arrest and the impact of such grant of limited anticipatory bail or interim protection, as the case may be, on the status of the investigation.

(c) The jurisdiction in which the cognizance of the offence has been taken does not exclude the said offence from the scope of anticipatory bail by way of a State Amendment to Section 438 CrPC.

(d) The applicant for anticipatory bail must satisfy the court regarding his inability to seek anticipatory bail from the court which has the territorial jurisdiction to take cognizance of the offence. The grounds raised by the applicant may be:

(i) reasonable and immediate threat to life, personal liberty and bodily harm in the jurisdiction where the FIR is registered;

(ii) the apprehension of violation of right to liberty or impediments owing to arbitrariness; and

(iii) the medical status/disability of the person seeking extraterritorial limited anticipatory bail.

*           *           *

(17) State (NCT of Delhi) v. Union of India⁷⁵

(Delivered on 29-11-2023)

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

Authored by: Justice Dr D.Y. Chandrachud

The issue related to the appointment of new Chief Secretary of the Government of National Capital Territory of Delhi (Gnctd) on superannuation of the currently serving one and the validity of extension of 6 months granted to the existing Chief Secretary, till the new incumbent joins in. The Gnctd approached the Supreme Court, believing that the Central Government will unilaterally appoint the Chief Secretary on the proposal forwarded by the Lieutenant Governor (LG), exercising powers available under Section 41 r/w Sections 45-A(d) and 45-H(2) of the Government of National Capital Territory of Delhi Act, 1991, which was amended through the Government of National Capital Territory of Delhi (Amendment) Act, 2023. Thus, the Court was dealing essentially with 2 issues:

(a) Appointment of the new Chief Secretary on the proposal of LG by the Central Government.

(b) Validity of the extension of the tenure granted to the existing/incumbent Chief Secretary for a period of 6 months by the Central Government.

The Court observed that the validity of the Gnctd (Amendment) Act, 2023 was pending consideration of the decision of its constitutionality and the powers of the Central Government without any interim orders of stay operating on the said legislation.

Thereafter, referring to Rule 55(2)(b) of the Transaction of Business Rules of the Government of National Capital Territory of Delhi Rules, 1993, it was held that LG possessed the powers to initiate and forward the proposal for appointment of Chief Secretary to the Central Government for appointment. Since the excluded subjects of Entries 1, 2, and 18 of List II of the State List fall outside the purview of Gnctd as per the previously passed judgment of State (NCT of Delhi) v. Union of India⁷⁶, therefore with respect to the excluded entries and the fields covered by them, the Gnctd does not possess powers to appoint the officers manning them. Once the matter has been referred by the LG to the Central Government, further action will be taken as per the decision of the Central Government and not by the Gnctd. Since the Chief Secretary of the Gnctd exercises overall supervision and control over all the departments including the excluded departments under excluded subjects, therefore the appointing authority shall be Central Government for the Chief Secretary for the said reasons. The LG is not bound to act on the aid and advice of the Council of Ministers whilst making a recommendation and forwarding the proposal to the Central Government for the appointment of Chief Secretary as Chief Secretary controls the three excluded entries of public order, police and land as well. The LG is required to act on the aid and advice only on matters over which the Legislative Assembly of National Capital Territory of Delhi (NCTD) has competence and not on those which it does not possess the legislative competence to legislate. The executive power of the Legislative Assembly of NCTD cannot extend to those on which it does not possess the legislative powers (Entries 1, 2, and 18). The LG therefore has committed no constitutional illegality and has the independent power to propose a candidate for appointment to the post of Chief Secretary to the Central Government, whose decision on the proposal is final. The Central Government cannot be divested of the power to appoint the Chief Secretary. Accordingly, the first issue was answered against the Gnctd.

On the next issue of the power of the Central Government to extend the tenure of the Chief Secretary, it was held that it is the Gnctd that exercises the jurisdiction over public services in NCTD. However, in the present case, the restriction contained vide Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 of prior consultation and concurrence of the State Government shall not apply strictly in the case of NCTD. This is because the decision shall have implications over the Chief Secretary who has to exercise powers on excluded subjects and departments. The decision of the Union Government accordingly to extend the services of the incumbent Chief Secretary was thus not to be construed to be constitutionally unsustainable.

However, the Court recorded vital observations on the role of the Chief Secretary referring to the judgment in E.P. Royappa v. State of T.N.⁷⁷, holding the post of Chief Secretary to be a “post of great confidence — a lynchpin in the administration”. The Chief Secretary, even though appointed by the Central Government, must comply with the directions of the elected State Government over matters on which their executive competence extends and must not put the elected Government at a standstill. The writ petition was accordingly disposed of in terms of the aforesaid directions.

*           *           *

(18) Premachandran Keezhoth v. Kannur University⁷⁸

(Delivered on 23-11-2023)

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

Authored by: Justice J.B. Pardiwala

The SLP’s arose out of judgments passed by Kerala High Court, through which reappointment of Respondent 4 was affirmed as the Vice-Chancellor of the Kannur University, whilst dismissing the quo warranto writ petitions preferred by the petitioner appellant before the Supreme Court. The Vice-Chancellor Respondent 4 was appointed on the said post initially, on the expiry of 4 years’ tenure of which, a notification was issued constituting a fresh Selection Committee and inviting applications from all concerned. Pertinently Respondent 4 had also crossed the age of 60 as stipulated under Section 10(9) of the Kannur University Act, 1996. However, thereafter statedly on the recommendation of the minister of the Higher Education Department, Respondent 4 came to be reappointed by passing the process of the fresh appointment of the Vice–Chancellor instituted in relation thereto. Following issues were framed by the Supreme Court for its consideration:

“(i) Whether reappointment is permissible in respect of a tenure post?

(ii) Whether the outer age-limit of sixty years for the appointment of Vice Chancellor as stipulated under sub-section (9) of Section 10 of the Act, 1996 is to be made applicable even in the case of reappointment of the Vice Chancellor for one more term of four years?

(iii) Whether the reappointment of the Vice Chancellor has to follow the same process as a fresh appointment by setting up a Selection Committee under Section 10(1) of the Act, 1996?

(iv) Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor?”

Answering the first issue, the court explained the meaning of “tenure post”, as a post where the person appointed to is entitled to continue till his term is complete, unless curtailed for justifiable reasons. Such a person does not superannuate, but only goes out of the office on completion of his tenure. There is no requirement on any occasion to pass the order of superannuation when the tenure comes to an end in the category of such posts. Therefore, reappointment is permissible even in case of “tenure post”.

Answering the second issue, it was held that the outer age limit of 60 years under Section 10(9) of the Act, 1996 is not applicable in case of reappointment under Section 10(10). The employment of the phrase “shall be eligible for reappointment”, signifies that the Vice-Chancellor by virtue of holding his office is deemed eligible for reappointment irrespective of the other provisions. In any case Section 10(10) is not made subject to Section 10(9) and therefore is untrammelled and cannot be regulated by the restrictions of Section 10(9). The result would be that any person who is appointed as Vice-Chancellor at the age of 56 or more would not be eligible for reappointment, if the upper age limit of 60 years is applied to reappointment under Section 10(10). It would render the proviso completely odious and meaningless in such cases. The Court reiterated a settled principle of statutory interpretation that courts must always refrain from declaring a statute to be unworkable, and must lean strongly against any construction which tends to reduce the statute to futility. Referring to the judgments of M. Pentiah v. Muddala Veeramallappa⁷⁹, S.P. Jain v. Krishna Mohan Gupta⁸⁰, such construction must be adopted which adds force in the life to the cure and remedy, as legislature is always presumed to have enacted the reasonable statute.

Answering the third issue, it was held that the process of reappointment of Vice-Chancellor under Section 10(10) is not required to follow the same process as a fresh appointment under Section 10(9) of the Act, 1996. The University Grants Commission (UGC) regulations are also silent as regards the appointment of any Vice-Chancellor, nor the legislature has thought fit to prescribe any procedure, mode or manner of reappointment. Explaining the “concept of reappointment”, it was held that reappointment essentially means the incumbent Vice-Chancellor would serve another term of 4 years if the Chancellor deems fit without reopening the position for new applications without constituting a Selection Committee. Reappointment is always different from initial appointment and the zone of consideration is restructured to persons already holding posts, and the suitability of the incumbent assessed at the time of initial appointment need not be reassessed. Referring to the judgment of State of W.B. v. Anindya Sundar Das⁸¹, it was held that the constitution or requirement of the Service Committee would not attach to reappointment happening under the statute. Therefore, reappointment of any Vice-Chancellor can be affected without following the ordering process of appointment of Vice-Chancellor.

Answering the fourth issue, Court explained the meaning of “surrender, abdication, dictation”, by referring to Wade and Forsyth’s Administrative Law⁸². It was held that when a statute expressly confers a statutory power on a particular body or authority or imposes statutory duty on the same, then such power must be emphasised or duty performed by that very body or authority itself and none other. If the body or authority exercises the statutory power or performs the statutory duty acting at the behest, or on the dictate, of any other body or person, then this is regarded as an abdication of the statutory mandate and any decision taken on such basis is contrary to law and liable to be quashed. Referring to the judgment of Union of India v. Kuldeep Singh⁸³, court explains the meaning of the word “discretion” as discernment of what is right and proper. Referring to the judgment of Air Line Pilots’ Assn. of India v. Director General of Civil Aviation⁸⁴, it was held that exercise of discretion in a democratic set up cannot be mortgaged to any other person or authority, who has no statutory role to play, lest the decision would be patently illegal. Accordingly, it was held that the Governor under the Act,1996, was expected to act in his personal capacity as the Chancellor of the University. They had absolutely no relation to the exercise and the performance of the power and duties by him as a Governor of the State, mandating precondition of aid and advice of the Council of Ministers. Referring to the judgment of Bhuri Nath v. State of J&K⁸⁵, Hardwari Lal v. G.D. Tapase⁸⁶, it was held that the Governor whilst discharging his function as a Chancellor was expected to act in his personal capacity, independent of the aid and advice of the Council of Ministers.

Therefore, since the press release by the Governor’s Office itself stated that name Respondent 4 Vice-Chancellor was proposed for reappointment from the Office of Minister, Department of Education, therefore it amounted to abdication and surrender of power by the Governor in the hands of an alien and foreign authority. The appointment was not at the instance of the Governor, but at the behest of the State Government and thus it was ex facie illegal. It was vitiated by the influence of extraneous considerations, with the unwarranted intervention of the State Government. Thus, the decision was quashed, being patently illegal by the Supreme Court.

*           *           *

(19) Article 370 of the Constitution, In re⁸⁷

(Delivered on 11-12-2023)

Coram: 5-Judge Bench of HM Justices Dr D.Y. Chandrachud, B.R. Gavai, Surya Kant, Sanjay Kishan Kaul and Sanjiv Khanna

Authored by: HM Justice Dr D.Y. Chandrachud, Sanjay Kishan Kaul and Sanjiv Khanna

The President issued Constitutional Order Nos. 272 and 273 ( “COs 272 and 273”) during the emergency proclamation in Jammu and Kashmir under Article 356(1)(b). The effect of these Orders was to the extent of abrogating Article 370 and thereby applying the entirety of the Constitution of India to the State of Jammu and Kashmir. The Parliament also thereafter enacted the Jammu and Kashmir Reorganisation Act, 2019 bifurcating the State into two Union Territories, and reference to the Constitutional Bench arose from a batch of writ petitions under Article 32 arose challenging the two State actions.

Issues that were dealt with and answered by the Constitution Bench were as follows:

“(i) Whether provisions of Article 370 were temporary in nature?

(ii) Whether the proclamation issued under Article 356 of the Constitution of India and Section 92 of the Constitution of J&K is constitutionally valid?

(iii) Whether there are limitations on the exercise of power by the President and the Parliament of India under Article 356?

(iv) Whether the State of J&K retained an element of sovereignty when it joined India?

(v) Whether the J&K Reorganisation Bill is constitutionally valid?

(vi) Whether Presidential Orders CO 272 and CO 273 are constitutionally valid?

(vii) Whether Article 370 could be amended through Article 367?

(viii) Whether the exercise of power by the President of India under Article 370(1)(d) is mala fide?”

On the first and fourth issue, it was held that Jammu and Kashmir ceded its sovereignty to the Dominion of India “absolutely and completely” and division of legislative powers is an essential feature of federalism. Article 370 was held to be a feature of a symmetrical federalism as opposed to sovereignty. Considering the historical context and the placement of Article 370 in Part XXI of the Constitution, the Court held that Article 370 is a temporary provision and the erstwhile State of Jammu and Kashmir had no internal sovereignty.

On the second issue, it was held that the challenge was to the actions taken during the subsistence of President’s rule and not the President’s rule itself and even if the court were to hold that the proclamation could not have been issued under Article 356, no material relief could be granted at this stage and therefore refused to adjudicate on this issue.

On the third issue, it was held that the shift in position from State of Rajasthan v. Union of India⁸⁸ to S.R. Bommai v. Union of India⁸⁹, arose from the judicial recognition of the misuse of Article 356 which Dr Ambedkar, in the Constituent Assembly Debates, hoped would remain a dead letter. Referring to S.R. Bommai case⁹⁰, it was held that judicial review of exercise of power under Article 356 is necessary, but not every decision by the Union can be subjected to challenge. The ultimate object and purpose of the constitutional arrangement is to restore the functioning of the State constitutional machinery and the executive action under a proclamation has to bear a proximate relationship to the same.

Further, only when a prima facie case is made out that exercise of power is male fide or extraneous can the court question whether it was a valid exercise of power and the exercise of power by the President for everyday administration of the State is not ordinarily subject to judicial review.

On the fifth issue, relying on State of W.B. v. Union of India⁹¹ and Babulal Parate v. State of Bombay⁹². It was held that absolute sovereignty is not vested in the States in India, since the States neither have their own Constitution, nor does the constitutional framework support dual citizenship of the State and the nation. Further, Article 3 gives wide powers to alter boundaries of the States to the Parliament. The Court refrained from commenting on the legality of converting a State into a Union Territory in toto owing to the Union’s assurance that the statehood of J&K would be restored in the near future upon the holding of elections.

Relying on Manohar Lal v. Union of India⁹³, it was held that the need to consult the views of the State Legislature concerned under Article 3 was dispensed with in the absence of a State Legislature during the operation of the President’s rule. Therefore, Sections 3 and 4 of the Reorganisation Act were held to be valid.

On the sixth and seventh issue, challenge was laid to Para 2 of CO 272 which exercised power under Article 370(1)(d) to amend Article 370 itself. A long line of cases including Shankari Prasad Singh Deo v. Union of India⁹⁴, Sajjan Singh v. State of Rajasthan⁹⁵ and Kihoto Hollohan v. Zachillhu⁹⁶, were relied on to hold that the substance of a change is more important than its form while interpreting the term “modify” in Article 370(3). It was held that the terms “Constituent Assembly” and “Legislative Assembly” are fundamentally different and therefore the modification of Article 367 has the effect of substantially modifying Article 370(3). This would essentially defeat the purpose of having a special procedure for making an amendment to Article 370 and the consequence of permitting such amendments through a circuitous manner would be disastrous.

Accordingly, para 2 of CO 272 was held to be ultra vires Article 370 as it contains a specific provision for its own amendment in Article 370(3) and when such specific provision exists, amendment cannot be done in any other manner.

On the constitutionality of CO 273, it was held that the purpose of Article 370 was to facilitate the integration of Jammu and Kashmir with India. The interpretation that after the dissolution of the Constituent Assembly, the President can no longer exercise his power under Article 370(3) would lead to the freezing of such integration defeating the intended integration. Even after the dissolution of the Constituent Assembly, the President continues to retain his power under this legislation.

It was held that the power under Article 370(1)(d) can be used to apply all the provisions of the Constitution to Jammu and Kashmir and the power under Article 370(3) is irreversible. It was held that since the Constitution of India is a complete code for constitutional governance, and its application to J&K is valid and irreversible, and the Constitution of Jammu and Kashmir is redundant.

On the eighth issue, it was held that exercise of power is male fide if the power was so exercised with an intent to deceive and “deception” can “only be proved if the power which is otherwise unavailable to the authority or body is exercised” or if “power available is improperly exercised.” It was held that the exercise of powers under Article 370(1)(d) did not require concurrence of the State Government.

The Court also held that under Article 356(1)(b), the power of the Parliament to exercise the powers of the legislature is not restricted to only law-making powers but includes non-law making powers as well and for these reasons, the exercise of power by the President was held not to be mala fide.

Concurring opinion

Justice Sanjay Kishan Kaul delivered a concurring opinion demystifying the factual and legal positions which upheld the same legal principles as above.

The Judge also penned a sentimental epilogue at the end of his judgment that draws attention to the current state of the people of Kashmir reminding everyone of the real stakeholders. The involuntary mass migration of one part of the population of the State in 1989-1990 and the ground realities created by the deployment of the Army in the area due to the aggravated situation was lamented in the judgment.

It was held that in order to move forward and heal, the first step is to understand the human rights violations perpetrated by both State and non-State actors in the region and establish a collective telling of the “truth”. In South Africa, the Truth and Reconciliation Commission helped to investigate human rights violations during the Apartheid regime, and served as a means of reckoning for the victims and fostered peacebuilding. The Judge recommended the setting up of an impartial Truth and Reconciliation Commission (Commission) expeditiously before the “memory escapes”. He further held that transitional justice and its constituents are facets of transformative constitutionalism therefore conferring power on the court to make the abovementioned recommendations just and necessary in the present case.

*           *           *

(20) Afjal Ansari v. State of U.P.⁹⁷

(Delivered on 14-12-2023)

Coram: 3-Judge Bench of Justices Surya Kant, Ujjal Bhuyan and Dipankar Datta

Authored by: Justice Surya Kant

Dissenting Opinion: Justice Dipankar Datta

The appeal was directed against the order passed by the Allahabad High Court, through which though the sentence was suspended of the appellant under Section 389(1) CrPC, 1973, however the stay on conviction was declined. Resultantly the appellant got disqualified as a Member of Parliament and was de-seated of all his functions, power and portfolios as a Member of Parliament. The appellant was proceeded for commission of offences under the Uttar Pradesh Gangsters and Anti-Social Activities Prevention Act, 1986 ( “Gangsters Act”), whereafter he was found guilty by the trial court and awarded a sentence of 4 years of imprisonment. Lok Sabha thereafter issued notification disqualifying him from its membership effective from the date of his conviction.

The appellate court under Section 389 CrPC is vested with both the powers of suspension of sentence as well as suspension of conviction. The Supreme Court after examining both the judgment of the trial court as also the impugned order passed by the High Court, found that there was no cogent evidence to establish that the appellant has been indulging in anti-social activities crimes such as murder or ransom; in various FIRs that were registered against the appellant or mentioned as the basis of registration of offence under the Gangsters Act, he was neither charge-sheeted, or was exonerated by the investigating agencies. It further held that Section 389 should not be interpreted in a narrow manner, but conferring wide powers on the High Court as the appellate court where irreparable damage, consequence cannot be compensated in any monetary terms or otherwise if acquired later. The said ground itself carves an exceptional situation and the appellant’s case warranted an order of stay on his award of conviction, though partially. The majority opinion held that the potential ramifications of declining to suspend the conviction are multifaceted; it would deprive the appellant’s constituency of its legitimate representation in the legislature; the appellant would not only face disqualification as a member of the 18th Lok Sabha, but would also incur disqualification to participate in future elections for parliamentary or State Legislative seats. It is always appropriate for the courts to balance the interests of protecting the integrity of the electoral process on one hand, while also ensuring that constituents are not bereft of their right to be represented, merely consequent to a threshold opinion, which is open to further judicial scrutiny. Accordingly, the majority partly allowed the appeal, by suspending the conviction awarded to the appellant and issued the following directions:

“(i) The Ghazipur Parliamentary Constituency shall not be notified for bye-election, in terms of Section 151 of the Representation of the People Act (RPA), till the decision of the appellant’s criminal appeal by the High Court.

(ii) The appellant shall, however, not be entitled to participate in the proceedings of the House. He shall also not have the right to cast his vote in the House or to draw any perks or monetary benefits.

(iii) The continuance of MP led welfare schemes in the Ghazipur Parliamentary Constituency without the appellant being associated for the release of grants for such schemes, is not an irrevocable consequence as all such schemes can be given effect, even in the absence of the local parliamentary representative.

(iv) The appellant shall not be disqualified to contest future election(s) during the pendency of his criminal appeal before the High Court and if he is elected, such election will be subject to outcome of the first criminal appeal.

(v) The High Court shall make an endeavour to decide the appellant’s criminal appeal expeditiously and before 30-6-2024.”

Dissenting opinion

In his dissenting opinion Justice Deepankar Dutta treaded the path of dissent differently. Referring to the judgment of Rama Narang v. Ramesh Narang⁹⁸, held that appeal under Section 374 against any judgment of conviction is essentially against the order of conviction, because the order of sentence is merely consequential. In a fit case, if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain irreparable, irreversible disqualification provided under any other statute for in any other statute, it may exercise the power otherwise the damage done cannot be undone.

However, the power of the Court under Section 389 CrPC is to be exercised only under exceptional circumstances. Referring to the judgment of Lok Prahari v. Election Commission of India⁹⁹, it was held that upon the stay of a conviction under Section 389 CrPC, the disqualification under Section 8 shall not operate. Before the power to stay a conviction is exercised, the appellate court must be made aware of the consequences which will ensue if the conviction were not to be stayed. Whenever the conviction is of a corruption charge against a public servant, the appellate court or the Revisional Court should not suspend the order of conviction during the pendency of the appeal as a convicted public servant is kept deliberately under the disability of conviction.

The dissenting opinion further held that Articles 102 and 191 of the Constitution of India clearly stipulates circumstances under which a person can be treated as disqualified as a member from either House of the Parliament or the Legislative Assembly of the State. The affirmative words used thereunder confer absolute and unconditional power on the Parliament to provide for disqualification of an elected member through alegislation. Referring to the judgment of the Division Bench of the Madras High Court K. Anandan Nambiar, In re¹⁰⁰, it was held that in cases involving social and moral turpitude where the public representatives are imprisoned, both justice and law required that the public representative concerned be restrained from further legislative activity and further misuse of his position till the electorate calls upon him to account at the next election. A member therefore convicted of charges involving moral turpitude should not be allowed to continue as the member of either House of the Parliament as it is derogatory not mainly to the dignity of the Parliament, but also to the good sense and wisdom of the people who treat them as the Member of the Parliament. This is in line with the parliamentary intent behind the Section 8 of the RP Act, which underlines India’s commitment to establishing an accountable democratic system rooted in the rule of law and integrity right from the beginning. Referring to the judgment of Public Interest Foundation v. Union of India¹⁰¹, the dissenting opinion stated that it is equally imperative that persons who enter public life and participate in law-making would be above any kind of serious criminal allegation and that they should be kept at pay. Thus, that there can be no doubt that standard for staying/suspending the disqualification has to be pecked at a level much higher than the later disqualification (brought about by this statute/rule) not only because of the constitutional scheme, but also because of the position of trust and confident that a parliamentarian holds in his electorate. Mere lack of representation of the electorate therefore should not at all be deemed to be an exceptional reason for stay of a conviction or suspension of execution of the conviction. The standard must not be lowered in cases where the requisites laid down by the precedents are not followed and it should not be relaxed solely on the account of parliamentarian elevated status.

A convict, merely because of his status as a member of Lok Sabha/Legislative Assembly should not be given special treatment, which is not available to the common man. Referring to the judgments of K.C. Sareen v. CBI¹⁰² and State of Maharashtra v. Balakrishna Dattatrya Kumbhar¹⁰³, it was held that the stay of conviction of accused parliamentarians may have serious repercussions cast on the integrity of the democratic institution and that no different treatment ought to be extended to them. One must specifically plead in the pleadings irreversible consequences to have the conviction stayed and by extension get the disqualification lifted. Since in the present case the appellant failed to plead appropriately the real and eminent prospects of his projection as a candidate from Ghazipur or any other constituency on behalf of a political party to which he belongs, his right to contest the election would not be treated to have been scuttled by reason of the conviction. The absence of even a whisper in the pleadings before the High Court cannot provide basis to the argument of right of the accused to represent a constituency. It is not a constitutional right of the appellant to represent a particular constituency under Article 326 of the Constitution of India occurring under Part XV. Right to elect and be elected are merely statutory rights, which are not absolute and can always be restricted or regulated.

On the argument of appellant not being able to implement Members of Parliament Local Area Development (Mplad) Scheme, which would suffer adversely if the conviction is not stayed, it was stated that Mplad Scheme Guidelines, 2023 clearly postulate and provide for arrangement of execution of works duly sanctioned on vacancy caused by disqualification of any MP/MLA. Accordingly, it was held that there was no irreversible consequence accruing in favour of the appellant so as to warrant stay of his conviction.

Before closing, the dissenting opinion quoted celebrated saying of Dwight D. Eisenhower, the 34th US President as follows: “the clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

Accordingly, the appeal was partly allowed in terms of the majority opinion.

*           *           *

(21) Union of India v. Air Commodore N.K. Sharma¹⁰⁴

(Delivered on 14-12-2023)

Coram: 2-Judge Bench of HM Justices Abhay S. Oka and Sanjay Karol

Authored by: HM Justice Sanjay Karol

The civil appeal was preferred under Section 31(1) of the Armed Forces Tribunal Act, 2007 ( “AFT Act”), at the instance of the Union of India against the order passed by the Armed Forces Tribunal, Principal Bench, New Delhi. The matter related to promotions in the Legal Department of the Indian Air Force, with the respondent being appointed in the JAG (Judge Advocate General) Department. The primary grievance of the respondent was that on the superannuation of the previous JAG (Air), despite meeting the criteria for promotion to Air Vice Marshal (AVM), no promotion board was formed to consider the respondent for the aforesaid vacancy. When the said promotion board was constituted belatedly along with nine other persons. He was recommended for the position of AVM on promotion, but the same was not accepted by the Ministry of Defence. The dispute therefore arose when the MOD did not accept the recommendation of the promotion board. The AFT held that the position of JAG (Air) had been updated in light of recommendations made by the High-Power Committee in compliance of the directions given by the Delhi High Court in Ex-Rect-/Rfn Nahar Singh v. Union of India¹⁰⁵. The consideration of the case of the respondent for promotion was therefore an exercise in futility. AFT also directed for framing of a policy for filling up the post immediately after upgradation of the post of JAG (Air) to the rank of AVM, and with the constitution of a separate promotion board for giving effect to the same. Accordingly, the respondent applicant was allowed to continue on the post of JAG (Air) till the process of formulating a policy for filling up the post of JAG (Air) in the rank of AVM and promotion board in terms of the proposed policy is completed. The Supreme Court framed two issues for consideration on the challenge being laid to the said order passed by the AFT:

(i) Whether the Tribunal could have issued a direction to the Government to frame a policy for filling up the post of JAG (Air)?

(ii) Whether the Tribunal could have directed that the respondent would continue functioning in such capacity despite non-acceptance of the Promotion Board’s recommendation till such time that the policy is framed by the Government and be given an opportunity for consideration by the Promotion Board constituted under such new policy?

Referring to the Preamble to the AFT Act, especially Chapter III and Section 14, it was held that power of the Tribunal is restricted to adjudication of the dispute before it. Section 14 itself expressly stipulates that the Tribunal shall not have the powers exercisable by the Supreme Court or the High Court under Articles 226/227 of the Constitution of India. Making policy or direction for framing of a policy in a particular manner is not the domain of the judiciary and AFT being a quasi-judicial body, functioning within the parameters of a statute also is devoid of such powers. The AFT whilst adjudicating cannot direct those responsible for making policy, to make a policy in a particular manner. Referring to the judgment of Union of India v. K. Pushpavanam¹⁰⁶, it was held that even a writ court cannot direct the Government to consider introducing a particular Bill before the legislature within a time frame. The AFT functioning within the strict boundaries of governing legislation would also therefore not have any power to direct the formation of a policy, much less within a time-bound period. The decisions of the AFT are subject to the jurisdiction of the respective High Court under Article 226 of the Constitution of India in terms of the Constitution Bench judgment of the Supreme Court in L. Chandra Kumar v. Union of India¹⁰⁷ and Rojer Mathew v. South Indian Bank Ltd.¹⁰⁸. A tribunal therefore subject to High Court’s jurisdiction under Article 226 cannot be permitted in law to direct the framing of policy by the Government in a time-bound period. Even the determination of age of retirement is a matter of executive policy and any enhancement in the age of retirement or any such direction to let the respondent continue in service even past such age is without any statutory basis. The AFT does not have any powers to enhance or extend the age of retirement till infinity. The order of the Tribunal was therefore held to be without basis. The judgment and order passed by the AFT was accordingly set aside by the Supreme Court.

*           *           *

(22) Ram Kishor Arora v. Directorate of Enforcement¹⁰⁹

(Delivered on 15-12-2023)

Coram: 2-Judge Bench of HM Justices Bela M. Trivedi and Satish Chandra Sharma

Authored by: HM Justice Bela M. Trivedi

The neat question of law which the Court dealt with was whether action of respondent ED in handing over the document containing the grounds of arrest to the arrestee and taking it back after obtaining the endorsement/signature as a token of having read the same, without furnishing a copy to the arrestee at the time of arrest would render the arrest illegal under Section 19 of the PMLA, 2002.

The appellant was the founder Director of M/s Supertech Ltd., which was alleged to have indulged into diversion, syphoning and laundering of funds received from various investors. The petitioner was arrested by the ED without serving to the appellant the grounds of arrest. It was replied by the ED that grounds of arrest were furnished, signature and endorsement of the petitioner obtained and thereafter ensuring that he had read the grounds, the same were taken back. The Court in the above factual matrix examined whether the arrest was illegal or not. Referring to the judgment of Vijay Madanlal Choudhary v. Union of India¹¹⁰, it was held that a copy of the ECIR is not necessary to be furnished to the accused, at the time of arrest, or apprehending his arrest. The compliance of Article 22 stands ensured with the supply of grounds of arrest who is being proceeded against. Also it is necessary that the person arrested under Section 19 of the PMLA must be contemporaneously or simultaneously made aware of the grounds of the said arrest. The Special Court may also on production of the arrested person may call for the grounds and relevant record relating to the reasons of his arrest and his continued detention. Referring to the judgments of V. Senthil Balajicase¹¹¹ and Pankaj Bansal case¹¹², it was held that communication of grounds of arrest must be in writing only. Information of grounds of arrest in writing only gives true meaning and purpose to the statutory mandate of Section 19(1) of the PMLA, as also the Article 22 of the Constitution of India. Any findings, observations or directions recorded by any lesser Bench or Bench of lesser strength (of 2 Judges) will be of no consequence, if contrary to the dictum of Vijay Madanlal Choudhary case¹¹³.

The Court then proceeded to examine and interpret the expression “as soon as maybe”. Occurring under Section 19 of the PMLA. Referring to the Constitution Bench judgment in Abdul Jabar Butt v. State of J&K¹¹⁴, it was held that the expression “as soon as maybe” implies the shortest possible, reasonable available to the investigating authority to communicate the reasons for arrest. Referring further to the judgments of Durga Pada Ghosh v. State of W.B.¹¹⁵, it was held that the said expression means and implies as early as possible, without any avoidable delay or earlier dispatch or window available to the authorities for the communication of the grounds of arrest. Accordingly, 24 hours within the period of arrest were held to be reasonable time and period for communication of the grounds of arrest to the accused by the ED. It was further held that the law led down in Pankaj Bansal case¹¹⁶ was prospective, as the law was declared to be applicable henceforth. Therefore, non-furnishing the grounds of arrest in writing till the date of pronouncement or judgment in Pankaj Bansal case¹¹⁷ could neither be held to be legal nor the action of the officer concerned not furnishing the same in writing defaulted with. Accordingly, appeals were dismissed.

*           *           *

(23) M.P. High Court Bar Assn. v. Union of India¹¹⁸

(Delivered on 15-12-2023)

Coram: 3-Judge Bench of HM Justices Dr D.Y. Chandrachud, P.S. Narasimha and J.B. Pardiwala

Authored by: HM Justice Dr D.Y. Chandrachud

Proceedings under Article 32 of the Constitution were instituted challenging the provisions of the amended Rule 3 of the E-Filing Rules, 2020 that made e-filing of pleadings by applicants mandatory in Debts Recovery Tribunals (DRTs) and Debts Recovery Appellate Tribunals (DRATs) throughout the country.

The respondents argued that a three-tier grievance redressal mechanism has been provided by instituting help desks at DRTs and DRATs and about 90 staff members were working at these desks to ensure hassle-free e-filing and resolution of functional and technical difficulties. Such a help desk was also made available on the e-filing websites of DRTs and DRATs. Further, comprehensive training programmes were conducted to make litigants and members of Bar Associations acquainted with the e-filing procedure. On the other hand, the petitioners argued that DRTs are constituted in far-flung areas, where adequate internet connectivity is not available and further, in case of software glitches, alternative modalities should be followed.

The Court observed that e-filing was facilitated by the Department of Financial Services in three stages. In the first stage, in 2020, e-filing was only optional and in the second stage, starting from July 2022, e-filing was made mandatory where the pecuniary value of the subject-matter in dispute was in excess of Rs 100 crores. In the final stage only, e-filing was made mandatory to all, therefore sufficient time was given for litigants to adjust to the new regime. The Court acknowledged that e-filing provides convenience and 24/7 access to courts while enabling transparency and efficiency in the administration of justice and eventually even the High Courts should make e-filings mandatory in a phased manner.

The Court considered the digital divide in the country and grass root realities due to which the requisite technology is not accessible to all litigants and addressed these issues at two levels. Various sets of directions were accordingly issued to facilitate the system of e-filings. Firstly, the Bar Associations representing the collective voice of the lawyers at DRTs/DRATs were permitted to submit their representations to the Department of Financial Services in case of any specific difficulties encountered in the process of e-filing. Secondly, all the Chairpersons of the DRATs and the Presiding Officers of the DRTs were directed to submit reports on a monthly basis to the department suggesting if any facility or software upgradation is necessary for the first six months. Further, the Director General of the National Informatics Centre shall constitute a team to monitor the process of e-filing in the DRTs/DRATs and address any difficulties in real time.

Thirdly, it was directed that in addition to the help desks, e-sewa kendras be set up at all the centres of DRTs and DRATs to provide one stop solutions encompassing all e-services at the DRTs/DRATs. They should have adequate equipment including computers, scanners and robust internet connectivity. This would provide access to justice to lawyers and litigants.

The Court also acknowledged the digital exclusion on the basis of gender referring to multiple surveys showing that the technological literacy amongst women was far less than that of their male counterparts and held that the report to be prepared by the Chairpersons and Presiding Officers of the DRATs and DRTs should adequately reflect consideration of this specific issue as well. Further, the help desks were directed to consider a dedicated portal to address the grievances of female litigants and accordingly, the petition was disposed of.

*           *           *

(24) BCI. v. Bonnie Foi Law College¹¹⁹

(Delivered on 10-2-2023)

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

Authored by: Justice Sanjay Kishan Kaul

The civil appeal related to the validity of All India Bar Examination (AIBE), jurisdiction and powers of Bar Council of India (BCI) to introduce pre-enrolment training courses or examinations, as pre-condition for permission to practice and appear before the courts of law. A High Powered Committee was constituted for examining the issues related to affiliation and recognition of law colleges, identifying areas requiring redressal, and addressing factors impeding implementation of existing reforms to the legal profession. This included the introduction of a Bar Examination and the compulsory requirement of apprenticeship under a senior lawyer prior to admission to the Bar as pre-enrolment training. Previously, through its judgment in V. Sudeer v. BCI¹²⁰, Rules framed by the BCI Training Rules, 1995 were struck down holding that once express provisions of Sections 24(1)(d) and 28(2)(b) were omitted by the statutory amendment, requirements could not be introduced through the Rules. The reference was therefore made to the five-Judge Constitution Bench when the three-Judge Bench opined that questions that fall for determination are of considerable importance affecting the legal profession in general and need to be authoritatively answered with the reconsideration of law laid down in V. Sudeer case¹²¹. The following questions were spelled out to be answered in the reference order:

(i) Whether pre-enrolment training in terms of the Bar Council of India Training Rules, 1995 framed under Section 24(3)(d) of the Advocates Act, 1961 could be validly prescribed by the Bar Council of India and if so whether the decision of this Court in V. Sudeer v. BCI¹²², requires reconsideration?

(ii) Whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961?

(iii) In case Questions 1 and 2 are answered in the negative, whether a post-enrolment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1)(ah) of the Advocates Act, 1961.

Answering the questions referred to the Constitution Bench, it was held that BCI being the apex professional body of the advocates is concerned and obligated under the Advocates Act, 1961 with the maintenance of standards of legal profession and the equipment of those who seek entry into the profession. No provision prohibits the BCI from conducting the pre-enrolment examination as it is directly concerned with the standard of the person who wants to obtain a licence to practice law as a profession. Referring to Section 24(3)(d), it was held that even though earlier provisions were omitted from the Advocates Act, however, BCI’s inherent powers cannot be disturbed to introduce a pre-enrolment examination, as the same would go contrary to the intent of the 1973 Amendment. Referring to Section 49(1)(ag), it was held that BCI possesses the power to prescribe Rules that would specify a class or category of person entitled to be enrolled as advocate. Section 49(1)(ag) reads thus:

49. General power of the Bar Council of India to make rules — (1) The Bar Council of may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe—

*           *           *

(ag) the class or category of persons entitled to be enrolled as advocates;”

It was thus held that the BCI possesses much larger powers and authority to prescribe conditions, even prior to his/her enrolment. The 1979 Amendment obliterating certain provisions would not take away any powers of the BCI as provided by the other provisions of the Advocates Act, since the said amendment never did deal with the aspects of powers of the BCI. Referring to Section 7(1)(g) r/w Section 24(1), it was held that even a pre-enrolment training course or examination can be prescribed to be compulsorily undertaken by the BCI. The interdict placed by the judgment of the Supreme Court in V. Sudeer case¹²³, on the powers of BCIwere thus held to be unsustainable and not laying down the correct law. However, on the question as to whether only on passing the examination from a law university/college or obtaining such a degree formally that a person be eligible to take the All India Bar Examination (AIBE), it was held that results in universities are invariably inordinately delayed and a person on account of such non-declaration of result may lose out on the opportunity to appear in AIBE leading to fairly long hiatus period of time. This will severely impact the opportunity to work in court proceedings available to such a person. Therefore, it was held that students who have cleared all examinations of their LLB course and eligible to pursue the final semester of the final year course of law shall be allowed to take the said examination on the production of proof of same and that the result of AIBE would be subject to person passing all the components of the LLB/ BA LLB examination. Also, he would be entitled to get enrolled and able to perform all the tasks alike to the legal profession, except acting or pleading before the court after the date of passing the examination and prior to the date of enrolment. Accordingly, the reference was answered in the above terms.

*           *           *

(25) V. Senthil Balaji v. State¹²⁴

(Delivered on 7-8-2023)

Coram: 2-Judge Bench of Justices A.S. Bopanna and M.M. Sundresh

Authored by: Justice M.M. Sundresh

The question of law which the Court dealt with was regarding the maintainability of a writ of habeas corpus filed against a remand order of a Magistrate. Relying on State of Maharashtra v. Tasneem Rizwan Siddiquee¹²⁵, it was held by the Court that in a case where Section 167 CrPC, 1973, and compliances of Section 19 of the PMLA, 2002 are totally ignored in a cryptic order, a writ of habeas corpus may be entertained. But in case of a remand order passed by a Magistrate, a writ under Article 226 cannot be invoked and only statutory reliefs can be granted against such orders.

On the issue of arrest, it was held by the Court that PMLA being a sui generis legislation, has its own mechanism in dealing with arrest in light of its objectives and is a complete code in itself. Therefore, in case of arrest under the PMLA, there is no requirement to comply with Section 41-A CrPC when Section 19 of the PMLA is complied with. It was held in the present case that all provisions of Section 19 were substantially complied with and this contemplates a rigorous procedure before making an arrest. Further, there is no contraction between the provisions of Section 19 of the PMLA and Section 41 CrPC.

On this issue of the power and duty of the Magistrate to remand an accused, it was held that in Section 167(2) CrPC, the words used are “in such custody as the Magistrate thinks fit”. This phrase confers wide discretionary powers to the Magistrate and such wide powers are not only for protecting the liberty of a person, but also to conclude the investigation in a fair manner. The Magistrate is expected to undertake a balancing act. The authorised officer under the PMLA, 2002 even though was held not to hold “police power”, was brought under the expression “such custody” especially because the words “police custody” were consciously omitted from the statute.

Acknowledging the history of abuse of procedure by law enforcement agencies and the purpose behind Section 167(2), being guided by the provisions of Article 21, the Court held that it is the duty of the investigation agency and also the courts to see to it that an accused gets the benefits of Section 167(2). However, it was held that the order of a Magistrate is amenable to challenge before a higher judicial forum and not by way of writ for habeas corpus. The court reiterated that this proviso creates a fine balance between individual liberty and adequate investigation. Relying on Satender Kumar Antil v. CBI¹²⁶ and M. Ravindran v. Directorate of Revenue Intelligence¹²⁷, it was held that restricting the period of investigation is a facet of Article 21 and such a right cannot be taken away even during unforeseen circumstances like the Covid-19 Pandemic. Accordingly, the appeals were dismissed upholding the judgments impugned.

Finally, the question as to whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation — 60 or 90 days, as the case may be, as a whole, was referred to a larger Bench.

*           *           *