Landmark Constitutional Law Judgments in 2024 by the Supreme Court of India (Part II of III)

This article in three parts is a round-up of all the landmark constitutional law judgments delivered by the Supreme Court of India from May to November 2024 that showcased consideration, interpretation and evolution of important constitutional law principles. The judgments in Part II are as follows:

Abbreviations for various common terminologies in the judgments

1926 Act — Bar Councils Act, 1926	ACA — Air Corporations (Transfer of Undertakings and Repeal) Act, 1954
Advocates Act — Advocates Act, 1961	AIB — All India Bar
AIBC — All India Bar Committee	AIL — Air India Ltd.
Art. — Article	AWES — Army Welfare Education Society
BALCO — Bharat Aluminium Co. Ltd.	BC — Backward Classes
BCA, 1993 — Backward Classes Act, 1993	BCD — Bar Council of Delhi
BCI — Bar Council of India	BCUP — Bar Council of U.P.
Begbt — Bengal Engineering Group Benevolent Trust	BEGC — Bengal Engineering Group and Centre
BSC — Bihar State Commission	CB — Constitution Bench
CB — Constitutional Bench	CO — Concurring Opinion
Co. — Company	COI — Constitution of India
Commr. — Commissioner	CPC — Civil Procedure Code, 1908
CPDR — Committee for Protection of Democratic Rights	CrPC — Criminal Procedure Code, 1973
CRPF — Central Reserve Police Force	Danial latifi judgment — Daniel Latifi v. Union of India1
DB — Division Bench	DDA — Delhi Development Authority
DO — Debarment Order	DPSP — Directive Principle of State Policy
DSPE Act — Delhi Special Police Establishment Act, 1946	E-5,L-II — Entry 5, List II
E-80, L-1 — Entry 80, List 1	E-o, L-o — Entry 0, List 0
EBC — Extremely Backward Classes	EWS — Economically Weaker Sections
GNCTD — Government of National Capital Territory of Delhi	GOI — Government of India
GoM — Government of Maharashtra	GoUP — Government of Uttar Pradesh
Govt. — Government	HC — High Court
IBSG — Institute of Brothers of St. Gabriel	IDA — Indore Development Authority
IO — investigating officer	IPC — Penal Code, 1860
J&K — Jammu and Kashmir	JB — Judge Bench
JCP — Joint Committee of Parliament	KMC — Kolkata Municipal Corporation
KMC Act — Kolkata Municipal Corporation Act, 1980	LA — Land Acquisition
LC — lower courts	LG — Lieutenant Governor
LP — Legal Practitioners Act, 1879	Ltd. — Limited
MADA — Mineral Area Development Authority	Madarsa Act — Uttar Pradesh Board of Madarsa Education Act, 2004
MEIs — minority educational institution	NCB — Narcotics Control Bureau
NDPS ACT — Narcotic Drugs and Psychotropic Substances Act, 1985	NHRC — National Human Rights Commission
NIA — National Investigation Agency	NOC — no objection certificate
O16, R6 — Order 16, Rule 6	O7, R11 — Order 7, Rule 11
PC Act — Prevention of Corruption Act, 1988	PG — postgraduate
PMC judgment — Pune Municipal Corpn. v. Harakchand Misirimal Solanki2	PSU — public sector unit
Reliance Industries judgment — Kalpana Yogesh Dhagat v. Reliance Industries Ltd.3	RS — Rajya Sabha
SB — Single Bench	SBC — State Bar Council
SC — Supreme Court	SCN — show-cause notice
Sec. — Section	SG — State Government
Shah Bano judgment — Mohd. Ahmed Khan v. Shah Bano Begum4	SL — State Legislature
SLP — special leave petition	SMA — Special Marriage Act, 1954
SOB — State of Bihar	SOM — State of Maharashtra
SOR — State of Rajasthan	SOUP — State of Uttar Pradesh
SOWB — State of West Bengal	SPF — Special Police Force
TC — trial court	The 1986 Act — Muslim Women (Protection of Rights on Divorce) Act, 1986
The 2013 Act — Land Acquisition, Rehabilitation and Resettlement Act, 20135	The 2019 Act — Muslim Women (Protection of Rights on Marriage) Act, 2019
The RTE Act — Right of Children to Free and Compulsory Education Act, 2009	The UGC Act — University Grants Commission Act, 1956
T.N. — Tamil Nadu	u/s — under Section
UAPA Act — Unlawful Activities (Prevention) Act, 1967	UG — undergraduate
UOI — Union of India	U.P. — Uttar Pradesh
UT — Union Territory	WP — writ petition
w.r.t. — with respect to

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The judgments are as follows:

(1) Union of India v. Santosh Kumar Tiwari⁶

(Delivered on 8-5-2024)

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

Majority Opinion Authored by: Justice Manoj Misra

———

The appeal arose against the judgment of the Odisha High Court, Cuttack through which the order of compulsory retirement of the respondent writ petitioner had been set aside as falling outside the purview of the Central Reserve Police Force Rules, 1955. The High Court had allowed the writ petition quashing the order of compulsory retirement on the ground that punishment of compulsory retirement was not one of the punishments specified under Section 11(1)⁷ of the Central Reserve Police Force Act, 1949⁸ and the same being not also provided under the Rules.

Issues before the Court

In light of the rival submissions raised by both the parties, Court framed the following issues for its consideration in the appeal:

(1) Whether the punishment of compulsory retirement from service could have been imposed upon the respondent by relying upon the provisions of Rule 27 of the Central Reserve Police Force Rules, 1955?

(2) Whether Rule 27 of the Central Reserve Police Force Rules, 1955 to the extent it provides for punishments other than those specified in Section 11 of the Central Reserve Police Force Act, 1949 is ultra vires the Central Reserve Police Force Act, 1949 and as such inoperable and void?

(3) Whether the punishment of compulsory retirement imposed upon the respondent suffers from any procedural infirmity and/or is shockingly disproportionate to the proven misconduct of the respondent?

Central Reserve Police Force Rules, 1955 and the punishment of compulsory retirement specified thereunder

The Supreme Court before delving into the various issues referred to various statutory provisions at hand involved in the matter. Section 8 vested the superintendence, control and administration of the Central Reserve Police Force in the Central Government entirely; Section 9 enumerated “more heinous offences”, whereas Section 10 dealt with “less heinous offences”. Separate punishments were provided for both, whereunder for “less heinous offences” the punishment provided was imprisonment for a term extendable up to one year or suitable fine. Section 11 which was the subject-matter of arguments in consideration of the Court, deals with minor punishments, whereunder any of the punishments may be imposed in addition to suspension, dismissal or specified under the Rules.

The Court accepted the settled principle that no person in service can be visited with any punishment, not specified in the contract of service or the law governing such services. Referring to the judgment of SBI v. T.J. Paul⁹, the Court stated that when in the extant rules punishment of removal was not one of the punishments specified, the same was set aside to be unsustainable. However, the situation with Central Reserve Police Force Rules, 1955 is different, whereunder vide Section 11 punishments that may be imposed were categorically specified to be in addition to suspension or dismissal and were made subject to any Rules made under the Central Reserve Police Force Act, 1949. Section 11 therefore, merely provided for a skeletal framework to be supplemented by the Rules framed under the act by the Central Government. Referring to the judgment of Union of India v. Ghulam Mohd. Bhat¹⁰, Court stated that conjoined reading of Section 11 of the Central Reserve Police Force Act, 1949 with Rule 27 of the Central Reserve Police Force Rules, 1955 would demonstrate that the use of the phrase “in lieu of” or “in addition to” demonstrated amply that authorities mentioned thereunder are empowered to award punishment other than dismissal or suspension, whichever may be so specified under the Rules. Rule 27 is made under the Central Reserve Police Force Act, 1949, supplementing the powers of the competent authority, which permits removal as a punishment to be issued by the Commandant. Referring to the judgment of State of J&K v. Lakhwinder Kumar¹¹ and the Constitution Bench judgment of Rohtak & Hissar Districts Electric Supply Co. Ltd. v. State of U.P.¹², it was stated that whenever the Rule making power is conferred in general followed by certain enumerated matters, the particularisation in respect of a specified subject is construed as merely illustrative and does not limit the scope of the general power. However, at the same time the delegatee is not allowed to travel wider than the object of the legislature, rather is duty-bound to remain confined within the four corners of the powers delegated to it. Referring further to the judgments of St. Johns Teachers Training Institute v. NCTE¹³ and Treatise on Statutory Interpretation¹⁴, the Court stated that Rules under the Central Reserve Police Force Act, 1949 are also enacted inter alia to regulate the award of minor punishment under Section 11, since Section 11 expressly uses the phrase “subject to any Rules made under this Central Reserve Police Force Act, 1949”. Such a phrase interestingly is not present or employed by the Parliament under Sections 9 and 10. The usage of this phrase under Section 11 implies the legislative intent that not only minor punishments specified under Section 11 of the Central Reserve Police Force Act, 1949 could be used, but also those specified collaterally under the Central Reserve Police Force Rules, 1955.

The Court held that for yet another reason, Central Government possesses the powers to provide for and impose punishments on its Central Reserve Police Force officers. Referring to Section 8, it was stated that superintendence and control over the Central Reserve Police Force vests with the Central Government. Referring to the judgment of State of W.B. v. Nripendra Nath Bagchi¹⁵, the Court explored the true import of expression “control” by referring to the interpretation accorded to it under Article 235¹⁶ of the Constitution of India. The word control must include disciplinary jurisdiction and disciplinary control. The administrative control envisages in such circumstances the power to retire the employee concerned prematurely and compulsorily at the discretion of the employer. The Central Government therefore in exercise of its rule making power towards ensuring full and effective control over the Central Reserve Police Force can prescribe punishments other than those specified under Section 11, including the punishment of retirement.

On merits also, decision of the disciplinary authority of compulsorily retiring the petitioner was held to be not suffering from perversity which was passed on the premise of the inquiry report, the materials and evidence on record considered thereunder, nor the punishment awarded found to be shockingly disproportionate. The respondent being a part of the disciplined force was found guilty of assaulting his colleague and therefore the punishment awarded to him was sufficient and adequate. Accordingly, the appeal was allowed, and writ petition was dismissed by the Court.

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(2) R.S. Madireddy v. Union of India¹⁷

(Delivered on 16-5-2024)

Coram: 2-Judge Bench of Justices B.R. Gavai and Sandeep Mehta; JJ.

Majority Opinion Authored by: Justice Sandeep Mehta

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The appeals before the Supreme Court arose out of the judgment of the Bombay High Court dismissing writ petitions instituted by the appellants, who were the former employees of Air India Limited ( “AIL”) as its cabin crew force members.

History of litigation before the High Court

The writ petition was filed for various service disputes raised by the employees alleging stagnation in pay, non-promotion, anomalies in the fixation of pay arising out of implementation of the report of Justice Dharmadhikari Committee. Violation of Articles 14¹⁸, 16¹⁹ and 21²⁰ of the Constitution of India was pleaded in all the writ petitions. However, during the pendency of the writ petition, the AIL was privatised and taken over by Talace India Private Limited with the purchase of its 100% shares. Prior to that AIL was a wholly Government owned company established statutorily through the provisions of Air Corporations (Transfer of Undertakings and Repeal) Act, 1994 ( “ACA, 1954”). Thus, on the date of filing of the writ petitions, they were maintainable being falling under Article 12²¹ of the Constitution of India.

The Bombay High Court relying upon the judgments of Tarun Kumar Banerjee v. Bharat Aluminium Co. Ltd.²² and Mahant Pal Singh v. Union of India²³, held that jurisdiction of High Court under Article 226 to issue a writ to AIL in its role as the employer of the petitioners did not subsist after its privatisation and disposed of all the writ petitions granting liberty to the employee petitioners to approach the appropriate forum available under law.

Issues before the Court for consideration

In view of the submissions raised by both the parties, Court framed the following issues for its consideration:

(i) Whether Respondent 3 (AIL) after having been taken over by a private corporate entity could have been subjected to writ jurisdiction of the High Court?

(ii) Whether the appellants herein could have been non-suited on account of the fact that during pendency of their writ petitions, the nature of the employer changed from a government entity to a private entity?

(iii) Whether the delay in disposal of the writ petition could be treated a valid ground to sustain the claim of the appellants even against the private entity?

Consideration of issues and their conclusion

The primary contention of the appellant writ petitioners was that cause of action got crystallised on the date of institution of the writ proceedings and the date when the authority was subjected to writ jurisdiction. Referring to the Gujarat High Court in Reliance Industries judgment²⁴, the Supreme Court stated that there must always be a public law element in the action of any private authority. The phrase occurring under Article 226 “to any person or authority” cannot be interpreted literally to mean that it can be issued for any purpose whatsoever, even for private individual disputes against any person whosoever. A writ would lie against any private body, but only when it performs a public function or discharges a public duty, and not when it is into pure commercial activity. The Gujarat High Court had further held in Reliance Industries judgment²⁵ that even though writ application was maintainable at the time when it was filed, the writ cannot be issued at a later point of time when the public sector unit concerned ceases to be in existence. Reference was also made to the judgment of Delhi High Court in Asulal Loya v. Union of India²⁶, in the context of privatisation of Bharat Aluminium Company Limited, from a Government of India undertaking to a private entity. Relying upon the judgment of Beg Raj Singh v. State of U.P.²⁷, Supreme Court stated that a petitioner though entitled to a relief in law but may yet be denied relief in equity because of subsequent intervening events i.e. the events transpiring between the commencement of the litigation and the date of decision. Therefore, in the present case the subsequent events, viz. disinvestment of the government company and its devolution into a private company left it immune from being subjected to the writ petition under Article 226. The Court accordingly granted imprimatur to the judgments of Gujarat High Court in Reliance Industries judgment²⁸ and Asulal Loya case²⁹, by the Delhi High Court and other such judgments on maintainability of writ petition after privatisation or disinvestment of the employer company.

The Court then referred to the landmark judgment of Federal bank Ltd. v. Sagar Thomas³⁰, wherein various conditions for maintainability of writ against private individuals, persons and entities under Article 226 was laid down by the Supreme Court. Referring to the criteria laid down therein, it was held that the new owner and the private company is not performing any public duty since the taking over of the AIL is for the purposes of the commercial operations, plain and simple that does not make writ petition maintainable. The question of issuing a writ arises only on the date when the writ petition is being decided. Therefore, the date for determining the maintainability of the writ petition is the date when the writ petitions are taken up for the final hearing and adjudication and not on the date when they were first instituted. Only because the appellants have been required to approach another forum for seeking their remedy cannot be a ground to make a writ maintainable. Supreme Court thus held that only just and permissible view in view of the subsequent intervening circumstances was to have relegated the petitioners to approach the appropriate forum for ventilating their grievances. Holding that Section 14 Limitation Act, 1963³¹ of the Limitation Act, 1963 shall come to the rescue of all the employee petitioners in case limitation stands in their way before the appropriate forum, the Court accordingly affirmed the judgment of the Bombay High Court and dismissed the appeals.

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(3) Kolkata Municipal Corpn. v. Bimal Kumar Shah³²

(Delivered on 16-5-2024)

Coram: 2-Judge Bench of Justices P.S. Narasimha and Aravind Kumar; JJ.

Majority Opinion Authored by: Justice P.S. Narasimha

———

The appeal arose out of concurrent judgments of single as well as Division Bench of the Calcutta High Court, which held that no power of compulsory acquisition of immovable property under Section 352 of the Kolkata Municipal Corporation Act, 1980 was available with the Municipal Corporation. The High Court further held that mere presence of power to acquire “coupled with the provision for payment of fair compensation by itself is not sufficient for a valid acquisition”. Though the Supreme Court affirmed the judgment, it gave additional reasons for interpreting the text and the context in which Section 352 of the Kolkata Municipal Corporation Act, 1980 is placed and why it could not be treated as providing a valid power of acquisition to the Kolkata Municipal Corporation.

Facts shorn of unnecessary details

The property of the respondent was partly in their possession and partly let out to a tenant. Various heads of municipal taxes including the property tax were also regularly paid. As such there had been no real dispute to the title of the respondent in his property owned by him absolutely. The matter reached the High Court, when the owner discovered that his name had been deleted from the revenue records, by being substituted with the name of the Corporation. A writ petition was filed, which was disposed of with the direction restraining the Corporation from interfering with the possession of the landowner or his tenant. High Court pertinently recorded that Kolkata Municipal Corporation could not establish the right and title over the property and had arbitrarily substituted its name in place of the landowner. Thereafter the Corporation knocked before the Division Bench, where it took the plea of acquisition, considering which the matter was remanded back to the Single Judge for deciding upon the validity of the acquisition afresh. The Single Bench held that Section 352-A does not comprise the power of compulsory acquisition vested with the Corporation and accordingly set aside the alleged action of acquisition initiated at the instance of Kolkata Municipal Corporation. The Division Bench also affirmed the said reasoning of the learned Single Bench.

Scheme of the Kolkata Municipal Corporation Act, 1980 and powers of acquisition

Referring to Sections 352 and 363 of the Kolkata Municipal Corporation Act, 1980, it was stated that Section 352 does not provide for the mode or procedure of acquisition, once the Commissioner decides upon to acquire any piece of land. Rather the power is found traceable under Section 535 under Chapter XXXIII of Part VIII, titled as “acquisition of property”. Section 352 therefore merely contemplates the power and duty of the Municipal Commissioner to identify and earmark the land intended for the street, park, etc. and once that decision is taken, power under Section 352 is exhausted. It simply relates to vesting of public streets, squares, parks in the corporation, but does not provide for the power of acquisition. It is thereafter that the Commissioner is obligated to apply to the Government under Section 537 to initiate the process of acquisition, which is to be resorted only when power to acquire through mutual agreement available under Section 536 results into failure. The Supreme Court then referring to the provisions of Sections 535, 536 and 537 held that it is the Government which is authorised and empowered under the Kolkata Municipal Corporation Act, 1980 to compulsorily acquire the land and not the Municipal Corporation. Accordingly, the contention of the Kolkata Municipal Corporation was rejected that it possessed inherent powers of compulsory acquisition under Section 352 of the Kolkata Municipal Corporation Act, 1980.

The right to property: A net of intersecting rights

The Court held that for failing to provide adequately reasonable and substantive procedure before compulsory acquisition of the private property, Section 352 of the Kolkata Municipal Corporation Act, 1980 would not be treated as the provision empowering acquisition. Referring to 44th Constitutional Amendment, whereunder right to property was shifted from Parts III to XII of the Constitution of India vide Article 300-A, the Court traced out the facets of constitutional protection guaranteed under Article 300-A. The constitutional protection cannot be constricted to the mandate of fair compensation against deprivation of any private property, lest it shall be offensive to the egalitarian spirit of the Constitution. The binary reading of the constitutional right to property gives way to more meaningful renditions, where the larger right to property is seen as comprising intersectional sub-rights, each with the distinct character, but mutually interconnected to constitute the whole. It manifests in the form of sub-rights and State action or legislation leading to deprivation of private property must be gauged against this constitutional net of sub-rights as a whole. The Court then elaborated 7 sub-rights, albeit non-exhaustive as strands of the Swadeshi constitutional fabric of India. These are as follows:

(a) The right to notice — The Constitution does not contemplate acquisition by ambush and the notice to acquire must be clear, cogent and meaningful, which has been reflected amply in many land acquisition statutes. Reference in this respect was made to Section 4 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; Section 3(1)³³ of the Requisitioning and Acquisition of Immovable Property Act, 1952³⁴; Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Referring to the judgments of Narendrajit Singh v. State of U.P.³⁵ and State of Mysore v. Abdul Razak Sahib³⁶, it was held that right to notice before commencement of any process of acquisition is an independent right flowing out of constitutional protection under Article 300-A.

(b) The right to be heard — This right encompasses the right of the property bearer to communicate and lodge his objections prior to acquisition of property. The right to be heard must be meaningful and not a sham. Reference was made to various land acquisition statutes providing for right to be heard, viz. Section 5-A of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, 1894, Section 3(1) of the Requisitioning and Acquisition of Immovable Property Act, 1952, Section 15 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and many such others statutory provisions. Reference was also made to the judgments Nandeshwar Prasad v. State of U.P.³⁷, HPCL v. Darius Shapur Chenai³⁸ and Union of India v. Shiv Raj³⁹, to state that inquiry in which a landholder is allowed to raise and file his objections should not be a mere formality.

(c) The right to a reasoned decision — both the preceding rights are evidenced only through a reasoned order passed by the acquiring authority, mandating it to take an informed decision and communicate the same timely to the landowner/objector. Reference was made to various land acquisition statutes providing for right to a reasoned decision, viz. to Section 6 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, 1894, Section 3(2) of the Requisitioning and Acquisition of Immovable Property Act, 1952 and Section 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Reference was also made to the judgments of Mohan Singh v. International Airport Authority of India⁴⁰ and Project Implementation Unit v. P.V. Krishnamoorthy⁴¹, to state that declaration of the decision to acquire is mandatory, failure of which vitiates the entire acquisition proceedings.

(d) The duty to acquire only for public purpose — the conditions for the purpose of acquisition cannot be unfettered resting on the absolute discretion of the authorities acquiring the land. They must stand to reason with the larger constitutional goals of a welfare State and distributed justice. Such a decision is also subject to judicial review, where under courts examine and scrutinise whether acquisition is related to the public purpose. Referring to the judgments of Somawanti v. State of Punjab⁴² and Daulat Singh Surana v. Collector (LA)⁴³, it was stated that if the Court arrives at the conclusion that there is no public purpose involved in the acquisition, the entire process can be set aside.

(e) The right of restitution or fair compensation — deprivation or extinguishment of the property right is permissible only upon reasonable restitution, which may be in various forms — monetary compensation, rehabilitation or other similar means. Compensation is an integral part of the process of acquisition. Referring to the judgments of State of U.P. v. Manohar⁴⁴ and M. Naga Venkata Lakshmi v. Visakhapatnam Municipal Corpn.⁴⁵, and many others, the Court held that compensation must be adequate and must be arrived at keeping in mind the market value of the acquired land. It is a sine qua non for any acquisition process.

(f) The right to an efficient and expeditious process — this right, checks and fetters the Government from avoidably delaying the process of acquisition and the various exercises ingrained in the overall acquisition. It obligates the administration to be efficient in commencing, completing and thereafter concluding the whole process of acquisition followed by payment of compensation within a reasonable time period, failure to adhere to which leads to lapse of the whole acquisition itself. This time period binding the acquisition process is also a necessary part of Article 300-A. Referring to the judgments of Roy Estate v. State of Jharkhand⁴⁶ and Mansaram v. S.P. Pathak⁴⁷, the Court held that if the legislation concerned does not stipulate the time-frames within which the process of components are to be completed, such a vacuum itself amounts to violation of Articles 14 and 21 of the Constitution of India, nullifying and invalidating the statutory provisions. In Khadim Hussain v. State of U.P.⁴⁸, it was held that excessive intervening delay between notifications under Sections 4 and 6 of the Land Acquisition Act, 1984 keeping the landowner in suspense throughout is inherently illegal.

(g) The right of conclusion — the State is obligated to logically conclude the acquisition proceedings by taking actual physical possession of the land without which the acquisition is not complete. Without final vesting and taking over of such possession, the acquisition remains inconclusive leading to a lot of difficulties. This obligation is also an essential part of Article 300-A. It is reflected in number of land acquisition statutes also like Sections 5-A(1), 6, 11-A and 34 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Referring to the judgments of P. Chinnanna v. State of A.P.⁴⁹ and DDA v. Reena Suri⁵⁰, Court stated that mere passing of award under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 will not suffice to vest the land in the State since taking possession is of utmost importance. Undue delay in taking over of the physical possession smacks of arbitrariness on the part of the acquiring authorities and resultantly unconstitutional.

Accordingly, after expounding the aforesaid principles, the Supreme Court stated that they are all integral to the “authority of law”, mentioned under Article 300-A and have also become part of the administrative law jurisprudence in India.

It was held eventually that since Section 352 does not provide for any procedure whatsoever, it could not be held to be contemplating the power of acquisition. The power of acquisition is in fact vested with the State Government under Section 537, being preceded by due and necessary procedures as specified above. Accordingly, the judgments of the High Court were affirmed and appeals dismissed by the Supreme Court.

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(4) Frank Vitus v. Narcotics Control Bureau⁵¹

(Delivered on 8-7-2024)

Coram: 2-Judge Bench of Justices Abhay S. Oka and Ujjal Bhuyan; JJ.

Majority Opinion Authored by: Justice Abhay S. Oka

———

The appeal arose out of the order granting bail to the appellant, who was being prosecuted for offences punishable under Sections 8, 22, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant was aggrieved by the conditions imposed in the order granting bail, specially the condition relating to dropping a pin on the Google Map and showing their location to the investigating officer ( “IO”) of the case as and when required; and another condition of procurement of “certificate of assurance” from the High Commission/Embassy that the accused shall not leave the country and appear before the Special Court as and when required in relation to the pending criminal case.

Preconditions to grant of bail

The Court in the process of reasoning referred to Sections 439(1)(a) and 437(3), authorising the Court granting bail to impose conditions necessary for the purposes mentioned under Section 437(3). Section 437(3) authorises the Court, in turn to impose conditions felt necessary in the “interests of justice”. Conjointly reading Section 437(3)⁵² of the Criminal Procedure Code, 1973 with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court held that conditions for grant of bail have to be in sync with Section 437(3) of the Criminal Procedure Code, 1973, once the case is made out for grant of bail to the accused. This is because Section 52 of the Narcotic Drugs and Psychotropic Substances Act, 1985 applies Criminal Procedure Code, 1973 squarely to the arrests made under the Narcotic Drugs and Psychotropic Substances Act, 1985 to the extent they are not inconsistent with the latter. Referring to the judgments of Kunal Kumar Tiwari v. State of Bihar⁵³ and Munish Bhasin v. State (NCT of Delhi)⁵⁴, the Court reiterated the legal positions that conditions while granting bail cannot be arbitrary, fanciful or extend beyond the ends of the provision. Neither the High Court nor the Sessions Court would be justified in imposing “freakish conditions”, but conditions which are referable to “good administration of justice” or “advancing the trial process”. No broader meaning should be assigned to the words “interest of justice” under Section 437(3) of the Criminal Procedure Code, 1973 but must be within the four corners of the section. The fundamental and constitutional rights of any accused ordered to be released on bail can be curtailed only to the minimum extent necessarily required whilst enlarging him on bail.

Referring to the judgment of State of A.P. v. Challa Ramkrishna Reddy⁵⁵, the Court held that even a prisoner under the Constitution of India, lodged in jail, continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. In the case at hand the Court was dealing with the accused whose guilt is yet to be established and to whom the presumption of innocence attaches. The Court therefore cannot impose conditions, which are so onerous as to frustrate the order of bail itself. The object of the bail condition cannot be to keep a constant vigil on the movements of the accused to constantly peep into his private life by imposition of arbitrary conditions as that would amount to violation of right to privacy of the accused guaranteed under Article 21. The effect and impact of keeping such constant vigil and peep into the private life of the accused would amount to a drastic condition as it results in keeping the accused in some kind of mental confinement throughout even after being released on bail. The Court always possesses plenary and inherent powers to cancel the bail granted to any accused if he is found committing the breach of bail conditions or influences the courts of trial or witnesses. In the face of plenary powers of the Court to cancel bail, all the more imposition of such conditions must be avoided.

Condition of dropping pin on Google Maps and for reporting to the investigating officer

The Court then dealt with the issue of bail conditions of dropping a pin on Google Maps so as to enable the Narcotics Control Bureau (“NCB”) for monitoring the movement of the accused on a real time basis. The Court for ascertaining the authenticity of “dropping a pin on Google Maps” issued notice to Google limited liability company (LLC) to file an affidavit. The Goggle LLC in response thereto in their affidavit clarified that the “pin dropped and shared by the user/user’s device” may not always project the real time location of the user sharing the pin as the user possesses absolute control over how he/she shares his/her pin. The pinned location therefore does not enable real time tracking of the user or their device. The location so pinned by the user/user’s device is the static location so pinned and accessible to others only when the user affirmatively shares the pin with them by clicking on the share button and not otherwise.

Court held that imposing any bail condition enabling the police/investigating agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21. Without even considering the technical effect of dropping a pin and relevance of the said condition, the bail condition thus clearly became arbitrary and freakish for grant of bail. Accordingly, the Court deleted the said condition from the order granting bail.

Condition of furnishing certificate on the Embassy/High Commission

The Court then dealt with the legality of bail conditions requiring the certificate of High Commission/Embassy. The bail condition was imposed by the High Court referring to the judgment of Supreme Court Legal Aid Committee v. Union of India⁵⁶, whereunder vide para 15(4), the Supreme Court had held that in case of a foreigner accused, the Special Judge must insist upon a “certificate of assurance” from the Embassy/High Commission of the country to which the foreigner accused belongs that he/she shall not leave the country and appear before the Special Court whenever required.

Referring to para 16 of the aforesaid Supreme Court Legal Aid Committee case⁵⁷, the Court held that directions contained under para 15 were to operate as one time direction applicable only to pending cases of the accused, who were in jail on the date of the judgment. Therefore, it is not necessary that in every case wherever a bail is granted to the accused in any NDPS case, the condition of obtaining a “certificate of assurance” from the Embassy/High Commission should be incorporated.

Such a bail condition becomes unrealistic, when the Embassy/High Commission declines or fails to issue the certificate within a reasonable time and procurement of such a certificate is clearly beyond the control of the accused to whom the bail is granted. Such a condition of bail is therefore clearly onerous and cannot be complied with in many circumstances for reasons beyond the control of the accused himself. In such a case, therefore instead of the condition of obtaining such a “certificate of assurance”, the accused may be required to surrender the passport and regularly report to the local police station/trial court depending upon the facts of the case.

In the present case, the bail was granted to the accused on merits in light of the judgment of Tofan Singh v. State of T.N.⁵⁸, since he was being implicated purely on the basis of a confessional statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The High Court therefore could not have imposed the onerous conditions as above mentioned as a precondition for the grant of bail and the Supreme Court therefore deleted both the conditions of “Google pin” and “certificate of assurance” from the bail order.

Simultaneously the Court also referred the case to a larger Bench for reconsideration of Clause IV in para 15 of the decision in Supreme Court Legal Aid Committee case⁵⁹ for being contrary to the spirit and parliamentary intent under Section 437(3) as also Article 21 of the Constitution of India.

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(5) Javed Gulam Nabi Shaikh v. State of Maharashtra⁶⁰

(Delivered on 10-7-2024)

Coram: 2-Judge Bench of Justices J.B. Pardiwala and Ujjal Bhuyan; JJ.

Majority Opinion Authored by: Justice J.B. Pardiwala

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The appeal arose out of an order passed by the Bombay High Court through which the appellant was declined to be released on bail in relation to his prosecution under the provisions of the Unlawful Activities (Prevention) Act, 1967. The appellant had been in custody for the last 4 years on the allegations of having been found carrying a bag with counterfeit Indian currency in large quantities. The Supreme Court underscored certain facts to exercise its discretion of enlarging the appellant on bail notwithstanding the existence of twin conditions, which were as follows:

(a) the appellant had been in jail as an under-trial prisoner for past 4 years, with the trial court not being able to even frame charges;

(b) the prosecution intended to examine not less than 80 witnesses as per the submissions made by the State as well as the National Investigation Agency both; and

(c) there was thus complete uncertainty as to by what period the trial would ultimately be concluded.

Referring to the judgment of Gudikanti Narasimhulu v. High Court of A.P.⁶¹, it was held that howsoever serious a crime may be, an accused has a right to speedy trial under the Constitution of India and bail is not to be withheld as a punishment. In the same context reference was also made to the judgments of Gurbaksh Singh Sibbia v. State of Punjab⁶² and Hussainara Khatoon v. State of Bihar⁶³, to state that prolonged delayed trial is in violation of fundamental rights under Article 21 of the Constitution of India. Referring further to the judgments of Kadra Pahadiya v. State of Bihar⁶⁴ and Abdul Rehman Antulay v. R.S. Nayak⁶⁵, the Court underscored the judicial worry that a large majority of accused come from poorer and weaker sections of the society, not versed in the ways of laws, lacking competent legal advice. It is therefore obligatory of the State to proceed with the case with reasonable promptitude. The danger of unjust imprisonment is that inmates are at “risk of prisonisation”, a term described by the Kerala High Court in A Convict Prisoner v. State⁶⁶, as “a radical transformation” whereby the prisoner loses his identity. The prisoner becomes hostile by ordinary standards and his self-perception changes.

Referring to Section 19⁶⁷ of the National Investigation Agency Act 2008, the Court emphasised that even parliamentary intent is that a Special Court must hold trial on a day-to-day basis on all working days, giving precedence to it over the trial of any other case for the very purpose for which the Special Courts are constituted. Referring further to the judgment of Union of India v. K.A. Najeeb⁶⁸, rendered in the context of Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967, it was held that presence of statutory restrictions and twin conditions do not per se oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution of India. The rigours of such statutory provisions melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Denial of bail in such cases is wholesale breach of constitutional right to speedy trial. Referring to the recent judgment of Satender Kumar Antil v. CBI⁶⁹, and special preconditions prior to grant of bail under special enactments, it was held that the rigours of Section 436-A (with requiring inter alia the accused to be enlarged on bail if the trial is not concluded within specified period) of the Criminal Procedure Code, 1973 shall apply to trials being carried out under special enactments as well. This is because Section 436-A deals with the precious rights and liberties of any person, even though he may be accused.

The Court then expounded the philosophical aspect of prolonged incarcerations and their impact on any person as an accused. The Court stated that criminals are not born but made. The human potential in everyone is good and so that no criminal can be written off as being beyond redemption. “Every saint has a past and every sinner has a future.” Commission of crime is attributable to a variety of factors, compelling the offender to commit the crime, factors that may be social and economic, may be the result of value erosion or parental neglect or such other factors. If the State or any prosecuting agency cannot ensure a speedy trial to the accused, being his fundamental right, then they have no right to oppose the plea for bail on the ground that crime committed is serious. Article 21 of the Constitution of India applies irrespective of the nature of the crime. After all the petitioner is still an accused, not a convict and an accused is presumed to be innocent, until proven guilty, a solitary principle that cannot be brushed aside so lightly, howsoever stringent the penal law may be.

In view thereof, holding the manner in which the prosecuting agency as well as the trial court had proceeded in the case of the accused, the Supreme Court held that his right to speedy trial stood infringement thereby violating his Article 21. The appeal was therefore allowed, and the impugned order passed by the High Court was set aside. The appeal order was ordered to be released on bail, subject to various conditions mentioned in the judgment.

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(6) Army Welfare Education Society v. Sunil Kumar Sharma⁷⁰

(Delivered on 9-7-2024)

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

Majority Opinion Authored by: Justice J.B. Pardiwala

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The appeals arose from the common judgment passed by the Uttarakhand High Court in a batch of writ petitions, dismissing the appeals filed against the judgment of the learned Single Judge preferred by Army Welfare Education Society. The Single Bench had issued various orders directing payment of monetary benefits to various teachers employed in the school, as also continuing their services, while restraining the management of the appellant school from removing them from the respective posts. Pertinently the appellant pleaded that it is a private educational institution and not amenable to directions in a writ petition under Article 226⁷¹ of the Constitution of India.

Issues for determination

In the backdrop of submissions made by both the sides, the Supreme Court framed two issues for its consideration, viz:

(a) Whether the appellant Army Welfare Education Society is a “State” within Article 12 of the Constitution of India, so as to make a writ petition under Article 226 of the Constitution maintainable against it? In other words, whether a service dispute in the private realm involving a private educational institution and its employees can be adjudicated upon in a writ petition filed under Article 226 of the Constitution?

(b) Even if it is assumed that the appellant Army Welfare Education Society is a body performing public duty amenable to writ jurisdiction, whether all its decisions are subject to judicial review or only those decisions which have public law element therein can be judicially reviewed under the writ jurisdiction?

Analysis

The Court then proceeded to analyse and answer the issues framed by it. Certain material facts necessary for answering the issues at hand were mentioned in the judgment as follows:

(a) In 1962, the Commandant of Bengal Engineering Group and Centre as ex-officio Chairman of the Bengal Engineering Group Benevolent Trust granted land to the Institute of Brothers of St. Gabriel’s a private minority society for running a school. The school was named as St. Gabriel’s Academy.

(b) In April 1983 Army Welfare Education Society, the appellant was registered under the Societies Registration Act, 1860 and in July 2021 Bengal Engineering Group and Centre proposed establishment of Army Public School under the aegis of the appellant Army Welfare Education Society, which was earlier leased to St. Gabriel’s Academy. The appellant society accordingly established Army Public School and finalised modalities for its management, operation and employment.

(c) In March 2012, various writ petitions were filed by the employees before the Uttarakhand High Court challenging the transfer of management of the school from St. Gabriel’s School to Army Welfare Education Society, with a relief of continuation of their services on the same terms and conditions provided to them earlier by the previous management.

(d) It was not a matter of dispute that appellant Army Welfare Education Society is a purely unaided private society established for the principal purpose of imparting education to the children of the army personnel including the widows and ex-servicemen.

Referring to the judgments of Vaish Degree College v. Lakshmi Narain⁷² and J. Tiwari v. Jwala Devi Vidya Mandir⁷³, Supreme Court recapitulated the legal provision that contracts of personal service cannot ordinarily be enforced except in certain contingencies. Institution governed by statutory provisions for its proper maintenance and administration would not be a statutory body and the test to be applied is whether the institution would exist in the absence of a statute. Existence of conditions to be fulfilled prior to grant of affiliation or approval from the university cannot make the institution a public or a statutory body. The Court accordingly referred to three judgments wherein Article 226 was held to be extendable and applicable to private and non-State entities. These were as follows:

(a) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani⁷⁴ — In this judgment, a dispute arose between the teachers and the management of the private college, regarding release of certain monetary benefits and payments. The High Court held that writ petition was maintainable overruling the primary objection of the college, against which the matter travelled to the Supreme Court. The view of the High Court was upheld by the Supreme Court holding that whenever rights are purely of a private character, no mandamus can be issued. However, the jurisdiction and scope of Article 226 is much wider than Article 32, and travels beyond the authorities specified under Article 12 of the Constitution of India. The phrase “any person or authority” employed under Article 226 is therefore not to be confined only to statutory authority and instrumentalities of the State but covers other persons and bodies performing such public duty. If the management of the college is purely a private body, “with no public duty”, mandamus will not lie. However, if the body/person or authority concerned is performing a public duty, then the teachers who are imparting the education get an element of public interest in the performance of their duties. The remedy therefore becomes available to all the teachers under Article 226. However, when there is no statutory provision requiring a private and aided school to pay to its teachers the salary and allowances equivalent to teachers of government schools, then mandamus cannot be issued directing payment of same salary and allowances to the teachers of the private management.

(b) K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg.⁷⁵ — The Supreme Court in this judgment again emphasised that where there is an interest created by the Government in any institution to impart education, it assumes the form of a discharge of public duty by the authority concerned, making it amenable to Article 226. However, the slight distinction is that in both the cases the institutions were “aided by the Government”.

(c) Satimbla Sharma v. St. Paul’s Senior Secondary School⁷⁶ — In this judgment also, it was held that writ can be issued and enforced against a private school for the performance of its statutory duty, imposed through a statutory provision. However, in the absence of any binding enforceable provision, directions cannot be issued to the management of the private school to bring the service conditions at par with that of the government schools for their teachers or their staff. The writ jurisdiction cannot be exercised for the said purposes. It was further held that a contract of personal service includes all matters relating to the service of the employee, viz. confirmation, suspension, transfer, termination, etc. Even if a writ petition might be maintainable against an authority, the same may not be issued always, till and until the Court is satisfied that action of such an authority which is challenged before the Court is in the domain of a public law as distinguished from the private law. This is because contract of personal service entered by a private entity cannot be enforced.

The Court further held that even though a body may be discharging a public function or performing a public duty, being amenable to judicial review before the constitutional court, not always would its employees would have the right to invoke the writ jurisdiction in matters relating to service, where they are not governed or controlled by the statutory provisions. Thus, the High Court was found to have committed an egregious error in entertaining the writ petition, which was inherently non-maintainable, and more so when the appellant society was not a State under Article 12 of the Constitution of India.

On the contention relating to breach of doctrine of legitimate expectation and resultant exercise of writ jurisdiction, it was held that such a doctrine is a creature of public law aimed at combating arbitrariness in executive action by the public authorities. A mere pious hope even leading to a moral obligation cannot amount to a legitimate expectation. Not every such legitimate expectation premised upon a pious hope can fructify into a right or amount to a right in the conventional sense. Referring to the judgments of Ram Pravesh Singh v. State of Bihar⁷⁷ and Jitendra Kumar v. State of Haryana⁷⁸, it was held that while differentiating between legitimate expectation on the one hand and anticipation, wishes, hopes and desire on the other, what is to be seen is that legitimate expectation must always arise from an express or implied promise, consistent past practice or a custom followed by an authority in its dealings. It can arise only when a public authority breaches a promise or deviates from a consistent practice and that too by somebody who has regular dealings with the said public authority performing public function. Legitimate expectation cannot extend to or govern the operation of private contracts or dealings between private parties, wherein the doctrine of promissory estoppel holds the field.

In view of the above, therefore, no statutory obligation was found placed on the shoulders of the respondents, who pleaded for being paid at par with their respective counterparts working in the government schools. Accordingly, the appeal was allowed by the Supreme Court and the judgment of the High Court was set aside holding that the writ petition was inherently non-maintainable.

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(7) State of W.B. v. Union of India⁷⁹

(Delivered on 10-7-2024)

Coram: 2-Judge Bench of Justices B.R. Gavai and Sandeep Mehta; JJ.

Majority Opinion Authored by: Justice B.R. Gavai

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The judgment arose out of a suit filed by the State of West Bengal against the Union of India under Article 131⁸⁰ of the Constitution of India seeking a declaratory decree that registration of cases by the Union of India after withdrawal of notification by the State of West Bengal under Section 6 of the Delhi Special Police Establishment Act, 1946 by the State of West Bengal is unconstitutional and honest. A further restraint order was sought against the Union of India for debarring them from registering/investigating any case in relation to offences committed within the territory of State of West Bengal after withdrawal of the consent as aforestated under Section 6 of the Delhi Special Police Establishment Act, 1946. Ancillary reliefs, incidental to the principal reliefs above were also sought including a declaratory decree of declaration of various cases having been registered after withdrawal of the Section 6 consent. An interim order/injunction was also sought restraining the Union of India from proceeding with any investigation or any first information report or proceeding arising therefrom registered after 16-11-2018, when the consent under Section 6 of the Delhi Special Police Establishment Act, 1946 stood withdrawn and revoked by the State of West Bengal.

The present judgment was limited to the aspect of maintainability, that dealt with the contentions of the parties surrounding thereto. The discussion has not been undertaken in the judgment relating to merits of the whole matter, but only maintainability of a suit under Article 131 of the Constitution of India.

Contentions of both the parties including the preliminary objections to the maintainability

The defendant Union of India raised certain preliminary objections opposing the maintainability of the suit. It was contended that the issue involved in the lis is also an issue arising in certain appeals already pending before the Supreme Court under Article 136⁸¹ of the Constitution of India, making a fresh suit under Article 131 untenable. The phrase “subject to the provisions of this Constitution” occurring under Article 131 makes it subject also to Article 136, where under a suit for a similar purpose cannot be entertained when proceedings under Article 136 are already pending on the same issue. It was further argued that though reliefs are claimed against Central Bureau of Investigation, seeking restraint orders against investigations sought to be carried by it, it has not been impleaded as a necessary party and thus the suit lacked the factual as well as the necessary basis for it to be entertained directly by the Supreme Court.

The plaintiffs (State of West Bengal) on the other hand contended that Central Bureau of Investigation vide the provisions of Delhi Special Police Establishment Act, 1946 is under the control and superintendence of the Union of India and therefore directions being sought against Union of India, which is vested with the powers to issue necessary notification under Section 6 deciding upon the territorial jurisdiction of its scope and area of activity.

Legal framework and judicial precedents

The Court referred to Order 16 Rule 6 of the Supreme Court Rules, 2013, titled as “plaints”. It was held that provisions of Order 16 Rules 6(a) and (b) are pari materia to Order 7 Rule 11 CPC providing for rejection of plaint. Referring to the judgments of Saleem Bhai v. State of Maharashtra⁸² and Sopan Sukhdeo Sable v. Charity Commr.⁸³ it was stated that whilst considering objections under Order 7 Rule 11 CPC for the rejection of plaint what is to be looked into are only the averments made in the plaint, which, if found germane, then the written statement of the defendant becomes wholly irrelevant at the said stage.

The usage of the word “shall” under Order 7 Rule 11 CPC obligates the Court with the duty to examine and scrutinise whether the plaint is hit by any of the infirmities provided in the six clauses of Order 7 Rule 11 CPC. The Court must reject the plaint even without the intervention of the defendant, wherein the averment made in the plaint must be read as a whole and not in isolation.

Examining Article 131 of the Constitution of India thereafter, the Court held that the jurisdiction vested in the Supreme Court is to the exclusion of any other Court of the country and it is exercisable for disputes between Government of India and one or more States, or between States on both the ends.

The Court in the aforesaid context referred to the Constitution Bench judgment of State of Bihar v. Union of India⁸⁴, wherein nine suits were filed by State of Bihar against Union of India alleging negligence leading to shortage in the delivery of iron and steel material by the Union of India. This resulted in gross delay of the development and infrastructural projects being developed across River Gandak. The Constitution Bench in the aforesaid judgment of State of Bihar case⁸⁵, held that Article 131 expressly excludes the idea of any private citizen, firm or a corporation figuring as a disputant/party either alone or even along with the State or with the Government of India in the array of parties to the dispute. Disputes between the Federation and the Provinces, Centre and the States were conceived to be adjudicated only by the highest Court of the land, which would be beyond the influence of any one constituent unit. Accordingly, even though under Article 12 a body like Hindustan Steel Limited would be a State, “being a local or other authority”, it could not be considered as a “State” for the purposes of Article 131 of Constitution of India.

Other judgment on the point relied upon by the Court was State of Rajasthan v. Union of India⁸⁶, wherein Article 131 proceedings were instituted when due to defeat of the Congress Party in the 1977 elections, suits were filed by various States wherein Governors were asked to dissolve the legislative assemblies and seek a fresh mandate from the people. The letters issued by the Union of India to the Governors of the State were challenged as illegal and ultra vires the Constitution of India, with a prayer for interim injunction restraining the Central Government from resorting to Article 356⁸⁷ of the Constitution of India. The preliminary objections of the Union of India to these petitions were primarily that Article 131 is available to the “State” and not the “State Government” and for agitating a legal dispute, not a factual or a political dispute. In other words, it was argued that a dispute must arise between the Government of India and the State, not between the Government of India and the Government of the State, defending its interests having political overtones under Article 131. The Constitution Bench of the Supreme Court interpreted the expression “legal right” occurring under Article 131, also expounded upon the very concept of “right” itself in State of Rajasthan case⁸⁸. Referring to the jurist R.W.M Dias, it was stated that “right” in its generic sense means an immunity from the legal power of another; immunity and exemption from the power of another in the same way as liberty implies protection from exercise of “right” of another. It depends on the jural relationship of “you cannot” of the possessor of the “right” from the another who enjoys freedom or power to tamper with the “right” of the former.

Thus, it was held that the legal right of the States consists ofthe immunity in the sense of freedom from the powers of the Union Government. The States are entitled under Article 131 to assert that “right” or power of the Centre cannot be so absolute as to dissolve the legislative assemblies or control their functioning through the Governor. The Supreme Court thus interpreted Article 131 to include within its sweep questions of law or fact, on which the existence or extent of a legal right contemplated under Article 131 depends. The Court specifically rejected the argument seeking rigid interpretation of Article 131 on the ground that such an interpretation would reduce the article into a dead letter and destroy a precious safeguard against use of arbitrary powers by the Centre.

The Supreme Court laid down one more principle in the aforesaid judgment of State of Rajasthan case⁸⁹, that relief in a suit under the aforesaid article is not restricted only to “declaratory judgment”, but also to pass all such orders, grant necessary reliefs found incidental or intricately related to enforcement of the legal right claimed in the suit.

Reading of the plaint vis-à-vis scheme of the Delhi Special Police Establishment Act, 1946

The Court then analysed the whole suit plaint as to whether it constituted the infringement of a legal right as envisaged under Article 131 and whether cause of action had been made out or not for the State of West Bengal. Referring to Entries 1 and 2, List II of Schedule 7 to the Constitution of India, it was held that public order, police are subject-matters exclusively reserved for the State and when juxtaposed with Entry 80, List I, it is luminescent that Center is not authorised to transgress into the jurisdiction of the State without permission of the State concerned. In the above backdrop Section 6 of the Delhi Special Police Establishment Act, 1946, which provides for the constitution of the Special Police Force “SPF”) in Delhi for the investigation of certain offences, Section 6 mandates prior consent of the State for the said Special Police Force/Central Bureau of Investigation for exercise of powers within its territorial limits. Section 6 of the Delhi Special Police Establishment Act, 1946 is thus the statutory recognition of the principle of federalism, which is also the basic structure of the Constitution of India. Referring to the judgment of S.R. Bommai v. Union of India⁹⁰, the plaint stated that any action of Central Bureau of Investigation in violation of Section 6 of the Delhi Special Police Establishment Act, 1946 strikes at the roots of federalism, thereby subverting the basic structure of the Constitution of India. The plaint further stated that Sections 3, 5 and 6 provide for three different conditions that have to be fulfilled separately for the Central Bureau of Investigation to exercise its powers in any State. Since the State of West Bengal had specifically withdrawn its consent under Section 6, exercise of powers by the Central Bureau of Investigation thus became purely unconstitutional and cases and investigation of offences ought to be done by the State police. The plaint accordingly in the above backdrop sought for various declaratory, restraint and injunctive reliefs in the suit so instituted. All these cases, first information reports and offences being inquired into by the Central Bureau of Investigation without the requisite consent of the State thus usurped State police’s statutory jurisdiction.

The Court then referring to the scheme of the Delhi Special Police Establishment Act, 1946, specifically Sections 4 and 5 held that superintendence of Delhi Special Police Establishment in relation to offences under the Prevention of Corruption Act, 1988 shall vest with the CVC and except the Prevention of Corruption Act, 1988 offences, in all other matters it shall vest with the Central Government. The administration of Delhi Special Police Establishment and various matters connected vest with the CVC and except the Prevention of Corruption Act, 1988 offences, in all other matters it shall vest with the Central Government. The administration of Delhi Special Police Establishment and various matters connected in relation thereto by virtue of Section 4 are also vested with the Central Government. Vide Section 5, the powers and jurisdiction of Special Police Force are also extendable only on a notification so issued by the Central Government. The Court held that all these provisions amply demonstrate that Central Government exercises dominating control over Delhi Special Police Establishment, and overall superintendents, control and management of the Delhi Special Police Establishment is vested with the Central Government. Therefore, the contention of the Union of India that Central Bureau of Investigation not being an instrumentality of the Central Government and being an independent agency falling outside the purview of Article 131 was rejected by the Court. Central Bureau of Investigation is an organ or a body, by virtue of its statutory scheme is under the control of Government of India.

Referring to the judgments of Vineet Narain v. Union of India⁹¹ and State of W.B. v. Committee for Protection of Democratic Rights⁹², the Court held that though the Central Government may not supervise the investigation of any particular case, nor oversee the same, but the said fact does not water down the administrative control and superintendence of Central Government over Delhi Special Police Establishment.

Interpretation of the term “subject to the provisions of this Constitution”

The Court then proceeded to deal with the contention of the Union of India that the phrase “subject to the provisions of this Constitution” used under Article 131 of the Constitution of India is subject to other pending proceedings under Articles 32⁹³, 136 or Article 226 of the Constitution of India, rendering the suit as not maintainable. The Court then proceeded to discuss and interpret the phrase “subject to the provisions of this Constitution”. Referring to the Constitution Bench judgment of South India Corpn. (P) Ltd. v. Board of Revenue⁹⁴, the Court drew an analogy from the interpretation of Article 372 employing the similar phrase. It was held that the expression “other” can only apply to the provisions of the similar genre, vis those provisions that are dealing with legislative competence. Referring also to another landmark judgment of Constitution Bench in Union of India v. Tulsiram Patel⁹⁵, in the context of interpretation of Article 309, it was held that Rules made under the proviso to Article 309 are subject to only Articles 310(1)⁹⁶ and 311⁹⁷ of the Constitution of India. Meaning thereby that Rules were not treated as subject to any and every constitutional provision, but only those that were relatable to it. It was thus held that on the basis of both the above judgments that the phrase “subject to the provisions of this Constitution” will have to be considered contextually and read so, it shall be subject only to those provisions in the Constitution, which provide for entertaining disputes between the parties mentioned therein, viz. the Union of India or the States or the States on both the sides. Also, Articles 32, 136 or Article 226 are general remedies provided under the Constitution to any aggrieved party and cannot be treated at par with a specific specialised remedy as provided under Article 131 to the Government of India or any State Government.

The remedy under Article 131 being therefore a special remedy must be interpreted purposefully and contextually. The interpretation placed by the defendant Union of India was therefore held to be not in consonance with the constitutional scheme and was accordingly rejected.

It was thus held that the suit filed by State of West Bengal was possessing a cause of action, insofar as it related to the rights of the States being not subservient to the powers of the Union. The preliminary objections raised by the Union of India were all therefore rejected and it was held that the suit filed by State of West Bengal is maintainable to be decided on merits.

***

(8) Mohd. Abdul Samad v. State of Telangana⁹⁸

(Delivered on 10-7-2024)

Coram: 2-Judge Bench of Justices B.V. Nagarathna and Augustine George Masih, JJ.

Majority Opinion Authored by: Justice Augustine George Masih

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In the present case an appeal was filed from the impugned order of the High Court, whereby the High Court of Telangana modified the order passed by the Family Court by decreasing the quantum of interim maintenance payable by the appellant from Rs 20,000 to 10,000 per month to his wife.

The appellant/petitioner was the husband of Respondent 2 who entered a matrimonial consortium on 15-11-2012. However, their relationship deteriorated and wife, Respondent 2 left the house on 9-4-2016. Subsequently, she lodged a first information report against husband under Sections 498-A and 406 of the Penal Code, 1860. In response the husband pronounced the triple talaq on 25-9-2017 and moved for divorce before the office of Quzath seeking declaration of divorce which eventually was granted ex parte.

Further it was claimed that when the husband sent the Rs 15,000 as appropriate maintenance for iddat period, Respondent 2 refused and instead she moved an interim maintenance under Section 125⁹⁹ of the Criminal Procedure Code, 1973, which the Family Court consequently allowed. The husband filed for quashing for the said other and the High Court affirmed and modified the same via impugned order dated 13-12-2023. The prime contention stated by the petitioner was that the provisions of Section 125 of the Criminal Procedure Code, 1973 do not prevail in light of the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The contention before the Court was whether filing of application by the “divorced Muslim women” before the Court under Section 125 of the Criminal Procedure Code, 1973 would be maintainable, when she has a remedy under the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The judgment took into consideration numerous decisions of the Court passed related to Section 125 of the Criminal Procedure Code, 1973 and provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Where on one hand, Section 125 is a major tool to promote social justice and to protect the weaker sections of the society, on the other hand, the Muslim Women (Protection of Rights on Divorce) Act, 1986 is a personal and customary law, only intended to specify the rights related to Muslim divorced women and to protect her interest.

Constitutional perspective of law relating to maintenance

It has been stated that Articles 15(3)¹⁰⁰ and 38¹⁰¹ of the Constitution of India intend to provide measures for social justice to protect the weaker sections and both the provisions under the Criminal Procedure Code, 1973 and the Muslim Women (Protection of Rights on Divorce) Act, 1986 are based upon the same objective. Referring to the decision in Bhagwan Dutt v. Kamla Devi¹⁰², the judgment reiterated that Section 125 of the Criminal Procedure Code, 1973 does not vest punitive or remedial nature of power and jurisdiction with the Magistrate, but it is a preventive measure. It further stated that whether any right may or may not exist as a consequence of application of personal laws to the parties concerned but they shall continue to exist distinctively and independently as against this secular provision.

Referring to the 5-Judge Bench decision in Shah Bano judgment¹⁰³, which extensively dealt with the issue of maintenance apropos the obligation of a Muslim husband to his divorced wife who is unable to maintain herself either after having been given divorce or having sought one, the judgment held that under Section 125 of the Criminal Procedure Code, 1973, the independent remedy for seeking maintenance was held to be always available and after the pronouncement of this decision, a controversy emerged anent the true obligations of a Muslim husband to pay maintenance beyond the iddat period to his divorced wife. To clarify the position after this verdict, the Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which sought to specify the entitlement of a divorced woman. The judgment further noted that after the Muslim Women (Protection of Rights on Divorce) Act, 1986 came into force, a series of writ petitions challenging the Act on the ground of being violative of Articles 14, 15 and 21 of the Constitution of India were filed. The reason was that Section 3 begins with a non obstante clause, seeking to override application of other existing laws. This contention was resolved in the decision of Danial Latifi judgment¹⁰⁴, while stating that there is no express extinguishment of rights under Section 125 of the Criminal Procedure Code, 1973 and neither the same was intended or conceived by the legislature while enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Referring to the decisions in Shah Bano judgment¹⁰⁵, Shabana Bano v. Imran Khan¹⁰⁶ and Khatoon Nisa v. State of U.P.¹⁰⁷, the judgment elaborated on the prevalence of Section 125 of the Criminal Procedure Code, 1973 as a secular protection available to women across communities including Muslim communities, reiterating that a “divorced Muslim women” is entitled to invoke the jurisdiction under Section 125 of the Criminal Procedure Code, 1973 to seek her right of maintenance and observed that the Muslim Women (Protection of Rights on Divorce) Act, 1986 was read down to not foreclose the secular right of the “divorced Muslim women”. Referring to the decisions in Shamim Bano v. Asraf Khan¹⁰⁸ and Shamima Farooqui v. Shahid Khan¹⁰⁹, wherein petitions under Section 125 of the Criminal Procedure Code, 1973 before the Family Court were found maintainable vis-à-vis a situation, where a petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 has been subsequently moved, the judgment held that in the instant case, both the High Court and the Family Court concerned has rightly and without a shadow of a doubt, held and affirmed that Section 125 of the Criminal Procedure Code, 1973 would be applicable.

The judgment stated that the Court had clarified the intent of the legislature by beneficially construing the expressions contemplated under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Particularly, by the expression “within iddat period”, the Parliament never sought to restrict the rights of a “divorced Muslim women” to only iddat period and the objective was to confer the benefit of maintenance as well as a “reasonable and fair provision” for a lifetime to a “divorced Muslim women”, subject to her remarriage. Conferring the Muslim Women (Protection of Rights on Divorce) Act, 1986 the status of a “socio-beneficial legislation”, the judgment stated that the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not restrict a “divorced Muslim women” to her right of maintenance under the secular provisions of Section 125 of the Criminal Procedure Code, 1973, provided she is able to prove the requisites encompassed by the said statute.

The judgment observed that in a factual context, where the husband has fulfilled his obligations as per the personal laws, and the “divorced Muslim women” subsequently prefers to invoke Section 125 of the Criminal Procedure Code, 1973 on the ground of inability to maintain herself, then the “divorced Muslim women” cannot be denied of her right to seek maintenance under this provision. But when the husband opposes, he gets to establish that:

(a) initial obligations under the customary and/or personal statutory enactments as detailed earliest stand fulfilled by him; and

(b) that the wife in the light of this, is able to maintain herself.

However, if the husband fails to sustain the said objections raised during the proceedings initiated under Section 125 of the Criminal Procedure Code, 1973, and/or an order is accordingly passed, it could not be inherently barred or liable to be cancelled under Section 127(3)(b) of the Criminal Procedure Code, 1973.

Referring to the decision in Fuzlunbi v. K. Khader Vali¹¹⁰, the judgment observed that the liability under the customary or personal laws of the parties under Section 125 of the Criminal Procedure Code, 1973 parallelly exist in distinct domains and jurisprudences, wherein there is a need to equivalently reduce the amount of maintenance or a harmonious construction for a rational nexus needs to be established between the actual sum of maintenance paid and the potential of maintenance under the equivalent provisions of the secular law so that the “deemed double benefit” could be prevented to an extent. The judgment on the basis of the observations made about affirmed the order of modification passed by the Telangana High Court and dismissed the appeal.

Concurring opinion of Justice Ms B.V. Nagarathna

Further, Justice Ms B.V. Nagarathna took a concurring view supplementing the interpretation of Section 125 of the Criminal Procedure Code, 1973 and provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Right to maintenance in a constitutional context

To liberate the Indian wife including a divorced women from the shackles of gender based discrimination, disadvantage and deprivation, the legislature has framed these laws based upon the constitutional philosophy of social justice that provides Section 125 of the Criminal Procedure Code, 1973 as a measure of social justice with a view to protect women and children and it is aligned to the salutary object enshrined in Articles 15(1) and (3) read with Article 39(e)¹¹¹ of the Constitution of India.

Article 15(3) is a fundamental right while Article 39 is a Directive Principle of State Policy, that obligates upon a State a duty to apply these principles while formulating the law. Thus, the statutory right to seek maintenance under Section 125 of the Criminal Procedure Code, 1973 is also embedded in the context, structure and philosophy of the Constitution. The Constitution also states that irrespective of the faith a woman belongs to, the State has a duty to ensure a life of dignity for women at all stages of their life. The remedy of maintenance is a critical source of succour for the destitute, the deserted and the deprived sections of women.

Judgments stated the Section 125 of the Criminal Procedure Code, 1973, as a measure to provide maintenance, is independent and in addition to the DV Act as well as the customary and personal laws applicable.

Referring to the decision in Bhagwan Dutt case¹¹², wherein it was observed the protection under Section 125 of the Criminal Procedure Code, 1973 is to prevent wives vagrancy in destitution and to give her a life “neither luxurious nor penurious” and taking into consideration her separate income while computing the amount of maintenance, the judgment stated that the object of maintenance proceedings is rehabilitative and not punitive as it seeks to elevate a financial stress and vulnerability of pecunious and pauperised women, who is dependent on her husband economically. It is further stated that the provision is indeed a constitutional imperative to redress the vulnerability of a married woman, which includes a divorced woman, who does have an independent source of income.

Referring to the decisions in Jasbir Kaur Sehgal v. District Judge, Dehradun¹¹³, Bhuwan Mohan Singh v. Meena¹¹⁴ and Reema Salkan v. Sumer Singh Salkan¹¹⁵, wherein it was observed that it is common place that married women sacrifice employment opportunities to nurture their family, the judgment observed that law of maintenance strikes a careful, just and fair balance between the husbands sacramental duty towards the wife and children and the social imperative of not imposing oppressive or punitive hardship on the husband.

Adequacy and sufficiency of maintenance

The judgment observed that ensuring adequate and sufficient maintenance is a critical aspect of adjudicating claims for maintenance so that the wife or the divorcee can maintain herself with dignity. Referring to the decision in Bai Tahira v. Ali Hussain Fidaalli Chothia¹¹⁶, where maintenance was allowed to the wife under Section 125 of the Criminal Procedure Code, 1973 after getting divorced through a consent decree, the judgment held that the protection against moral and material abandonment is a part of social and economic justice, specifically provided under Article 38. It further stated that Section 127 of the Criminal Procedure Code, 1973 also does not totally exempt the husband from providing maintenance to the ex-wife if the amount so paid by him under the customary/personal laws is not sufficient to support her.

Referring to the judgment in Fuzlunbi case¹¹⁷ and Shah Bano judgment¹¹⁸, it was held that an order under Section 127 ought to be a reasoned order and shall only allow an order for maintenance to be cancelled if the Judge is satisfied that the divorce women had received a sufficient amount of maintenance under any customary/personal laws. The judgement also observed that through the decision in Danial Latifi judgment¹¹⁹, the Court intended on making the decision in Shah Bano judgment¹²⁰ ineffective.

Interpretation of the Muslim Women (Protection of Rights on Divorce) Act, 1986

The enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was contended in earlier cases before the Court as a step taken by the Parliament to make the decision in Shah Bano judgment¹²¹ ineffective through this enactment. But through the statement of object, Parliament clarified that the controversy emerging from the Shah Bano judgment¹²² regarding the obligation of the Muslim husband to pay maintenance to a divorce wife, it only specified the rights of a Muslim divorced woman so as to protect her interest. Some of the rights of the Muslim divorced women which it aims to protect are as follows:

(i) reasonable and fair provision and maintenance for the women within the period of iddat;

(ii) reasonable provisions and maintenance of the children born to her before or after her divorce extended to a period of two years from the dates of birth of the children; and

(iii) mahr or dower and all the properties given to her by her relatives, friends, husband or the husband’s relatives, if the above benefits are not given to her at the time of divorce.

Referring to the decision in Danial Latifi judgment¹²³, the judgment observed that there is no conflict between the provisions of Section 125 of the Criminal Procedure Code, 1973 and those of the Muslim personal law. In the Muslim Women (Protection of Rights on Divorce) Act, 1986 wherein Section 3 provides maintenance during the iddat period, Section 125 of the Criminal Procedure Code, 1973 allows her to claim maintenance after the period ends. Therefore, it allows the Muslim women to maintain her dignity and claim maintenance after the iddat period has ended. It further stated that though Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides for maintenance after the iddat period, and this section is akin to Section 125 of the Criminal Procedure Code, 1973 for a reasonable and fair provision of maintenance to be made.

Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 begins with the non obstante clause as “notwithstanding anything contained in any other law for the time being in force”, only applies in a case of a conflict in case of which the section will have an overriding effect through which it will be given its full operation but it would not take the effect of any other provision of the Act which follows same principle. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was upheld by the Court in Danial Latifi judgment¹²⁴ based on purposive interpretation that mitigated the possibility of denying access to justice to a “divorced Muslim women”. New rights created by Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 regarding “divorced Muslim women” though maybe additional but are not inconsistent to Section 125 of the Criminal Procedure Code, 1973. Therefore, the intent of Parliament which can be gathered from the use of a “non obstante clause” is to enhance the right of a “divorced Muslim women” in addition to what she would have been entitled to under Section 125 of the Criminal Procedure Code, 1973. The Parliament while enacting the Act did not simultaneously created any bar for a “divorced Muslim women” from claiming maintenance under Section 125 of the Criminal Procedure Code, 1973, therefore allowing her to claim maintenance both under the Act, as well as under Section 125 of the Criminal Procedure Code, 1973 and a non obstante clause does not restrict or diminish the right of maintenance of a “divorced Muslim women” under Section 125 of the Criminal Procedure Code, 1973. The judgment concluded that the rights created under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 are in addition to and not in derogation of the right created under Section 125 of the Criminal Procedure Code, 1973 and the option lies with the destitute women. It further stated that it is the duty upon the Court which would have to ultimately balance between the amount awarded under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and under Section 125 of the Criminal Procedure Code, 1973. Referring to the decision in Sabra Shamim v. Maqsood Ansari¹²⁵, wherein through the judgment of the High Court the entitlement of the divorced wife was limited to iddat period only, was set aside by the Supreme Court on the ground that the liability to pay maintenance is not confined to the iddat period, the judgment held that Muslim husband had has two separate and distinct obligations, viz:

(a) to make a “reasonable and fair provision” for his divorced wife; and

(b) to provide “maintenance” for her, and not restrict the maintenance for the iddat period only.

It further held that the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was upheld in Danial Latifi judgment¹²⁶, only based on the expensive, purposive and progressive interpretation harmonising the rights under the secular and personal laws.

Access to justice

That the judgment held that the application for maintenance under Section 125 of the Criminal Procedure Code, 1973 would not prejudice another application being filed under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the question of interpreting Section 3 should be construed from the perspective of access to justice so that otherwise it would stultify the constitutional right of access to justice for the aggrieved Muslim divorced woman who are in dire need of maintenance. The Muslim divorced women’s right to live with dignity can be made accessible by laying emphasis on sufficient maintenance as a facet of gender parity and an enabler of equality but not charity. An application under Section 125 of the Criminal Procedure Code, 1973 would not prejudice another application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Insofar as the latter is additional in nature and does not pertain to the same requirements sought to be provided for by Section 125 of the Criminal Procedure Code, 1973. One cannot be a substitute or a supplant for another; rather it is in addition to and not in derogation of the other.

Personal and secular law to be harmoniously interpreted

The judgment summarised the position of law with regard to harmonious interpretation of Sections 125 to 128 of the Criminal Procedure Code, 1973 and the Muslim Women (Protection of Rights on Divorce) Act, 1986:

(1) There cannot be a disparity amongst divorced Muslim women based on the law under which they were married or divorced in the matter of their maintenance post-divorce. If a Muslim woman has been married under the Special Marriage Act, 1954, cannot get the benefit of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is held that such women who are covered under the Muslim Women (Protection of Rights on Divorce) Act, 1986 are also entitled to the benefit of Section 125 of the Criminal Procedure Code, 1973.

(2) Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides for a reasonable and fair provision of maintenance to a divorced Muslim woman only on certain terms and conditions within the iddat period by her husband. Once the iddat period expires, under Section 125 of the Criminal Procedure Code, 1973, any divorced wife who has not remarried is entitled to maintenance by her ex-husband who has sufficient means but has neglected or refused to maintain her.

(3) Further, under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, where a divorced woman maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance has to be made and paid by her former husband only for a period of two years from the respective dates of birth of such children and not beyond the said period.

(4) As there is no upper limit fixed for payment of maintenance Therefore, Section 125 of the Criminal Procedure Code, 1973 is a more beneficial provision as compared to the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 vis-à-vis a Muslim divorced woman in the context of the obligations of a former husband and the rights of a divorced Muslim woman.

(5) Section 127 would apply only when there has already been an order for maintenance or interim maintenance passed under Section 125 of the Criminal Procedure Code, 1973 and if there is a subsequent order passed under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Then, an order for alteration in the maintenance under Section 125 of the Criminal Procedure Code, 1973 could be made by the Magistrate. Section 127(3)(b) would however not detract a divorced Muslim woman from filing an application under Section 125 of the Criminal Procedure Code, 1973, by exercising her option to do so even in the absence of invoking the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

(6) Hence, the Muslim Women (Protection of Rights on Divorce) Act, 1986 is not a substitute for Section 125 of the Criminal Procedure Code, 1973 and nor has it supplanted it and both can operate simultaneously at the option of a divorced Muslim woman as they operate in different fields.

The Muslim Women (Protection of Rights on Marriage) Act, 2019

The judgment further discusses Section 5 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 wherein Section 5 extends to Muslim women upon whom talaq has been pronounced. Talaq or the talaq-e-biddat which has the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband upon his wife. Though it has been declared void and illegal as per Section 3 of the said Act, Section 5 allows Muslim women to seek subsistence allowance if talaq has been pronounced on her. The Muslim Women (Protection of Rights on Marriage) Act, 2019 conferred this kind of talaq as a mischief and provides that if any woman has been a victim of such mischief then her right to subsistence allowance is secured through Section 5 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. It seeks to provide adequate remedies to women from economic deprivation that may result from marital discord, irrespective of their status as a married or divorced woman, wherein it also provides remedy to the wife in cases where divorce, whether void or illegal, the destitute wife can also live her life with dignity.

Maintenance and the institution of marriage

The judgment laid emphasis upon the concern of “financial security” and “residential security” for the women who are generally referred to in a society as “homemakers”. It observed that the women is the strength and backbone of an Indian family as a unit of the society and it has to be maintained and strengthened through presence of emotionally connected and secure family structure that would provide stability to the society.

Referring to the judgments in Kirti v. Oriental Insurance Co. Ltd.¹²⁷ and Prabha Tyagi v. Kamlesh Devi¹²⁸, wherein the service and sacrifices of women as homemakers were judicially recognised, the judgment observed that Indian married man must become conscious of the fact that he would have to empower the woman financially and with regard to the residence in her matrimonial home, to place such a vulnerable life in a more secure position in the family so that such family would ultimately be the strong thread in forming a stronger nation.

Conclusion of the judgment

The judgment accordingly concluded the findings as follows:

(1) Section 125 of the Criminal Procedure Code, 1973 applies to all married women including Muslim married women and all non-Muslim divorced women.

(2) Insofar as divorced Muslim women are concerned:

(a) Section 125 of the Criminal Procedure Code, 1973 applies to all such Muslim women, married and divorced under the Special Marriage Act, 1954 in addition to remedies available under the Special Marriage Act, 1954.

(b) If Muslim women are married and divorced under Muslim law then Section 125 of the Criminal Procedure Code, 1973 as well as the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 are applicable. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws. This is because the Muslim Women (Protection of Rights on Divorce) Act, 1986 is not in derogation of Section 125 of the Criminal Procedure Code, 1973 but in addition to the said provision.

(c) If Section 125 of the Criminal Procedure Code, 1973 is also resorted to by a divorced Muslim woman, as per the definition under the Muslim Women (Protection of Rights on Divorce) Act, 1986, then any order passed under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 shall be taken into consideration under Section 127(3)(b) of the Criminal Procedure Code, 1973.

(3) In case an illegal divorce has been made as per the provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2019, then relief under Section 5 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 of the Criminal Procedure Code, 1973 could also be availed. The provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2019 provide remedy in addition to and not in derogation of Section 125 of the Criminal Procedure Code, 1973.

***

(9) Bhim Rao Ambedkar Vichar Manch Bihar v. State of Bihar¹²⁹

(Delivered on 15-7-2024)

Coram: 2-Judge Bench of Justices Vikram Nath and Prashant Kumar Mishra; JJ.

Majority Opinion Authored by: Justice Vikram Nath

———

The appeal arose out of judgment of the Patna High Court, through which batch of various writ petitions were all dismissed affirming the notification of July 2015 issued by the State Government of shifting the caste “Tanti-Tantwa” from the list of Extremely Backward Classes to the list of Scheduled Caste, being merged with the already mentioned “Pan/Sawasi” caste mentioned at Serial No. 20. This exercise was done upon consideration of the recommendations of the State Backward Commission, which had suggested for extending benefit of Scheduled Caste/class to State residents belonging to “Tanti-Tantwa” in the State of Bihar. By virtue of this notification, therefore the “Tanti-Tantwa” caste got merged with the caste of Pan/Sawasi and members of the said caste became eligible to all the benefits of being a Scheduled Caste.

The High Court held the notification to be constitutionally valid being within the prerogative of the State Government on the basis of a recommendation made by the said State Backward Commission.

Issues for consideration

The Supreme Court for the resolution of the dispute claimed various issues for its consideration, the primary ones being as follows:

(1) What the Constitution of India provides regarding preparation of list for Scheduled Castes for different States.

(2) How a list declared under the Presidential Order can be altered, modified or amended.

(3) What does the Constitution provide regarding the Backward Classes for every State.

(4) The entries in the Presidential Order of 1950 and the subsequent amendments made by the Parliament in the list published under the Presidential Order of 1950.

(5) What the State decides regarding the Backward Classes.

(6) The correspondence between the State of Bihar and the Central Government/Union of India.

Consideration and resolution of various issues

The Supreme Court then referred to constitutional provisions of Article 341 read with Article 366(24) in relation to notification of Scheduled Castes by the President and an exclusive power enjoined with the Parliament of including or excluding any caste from the list thereof. The Court held that the list specified under the Presidential Notification can be amended or altered only by a law made by the Parliament and having been once so issued by the President, it cannot be varied by any subsequent notification otherwise, neither by the Central Government nor by the President. Article 341 does not deal merely with castes, races or tribes, but also parts of or groups within castes, races or tribes, meaning thereby that if any exclusion or inclusion of any sub-caste, sub-group is also to be made within any caste, race or tribe, the same can also be done only through a parliamentary law and not otherwise. Referring to the Constitution (Scheduled Castes) Order, 1950 of 10-8-1950, with respect to the State of Bihar, “Pan Caste” was mentioned at Serial No. 18 which was amended by the Parliament in 1963 to be replaced by “Pan or Sawasi”. A Parliamentary Bill was proposed to be introduced in 1967 for amending the list to include the caste of “Tanti-Tantwa” but however the bill could never be enacted as a law and eventually lapsed with the efflux of time. The Court traced the history of various amendments to the said Presidential Order, but however none of them introduced in the list.

The State of Bihar also enacted the National Commission for Backward Classes Act, 1993¹³⁰ (“BCA”) under which State Commission for Backward Classes (“BC”) has been established. On the recommendations of the said Commission, “Tanti-Tantwa” was included as one of the castes, falling in the class of Extremely Backward Classes. Referring to the stand of Union of India, Ministry of Social Justice and Environment, Court observed that earlier also Government of Bihar had in August 2011 recommended inclusion of “Tanti-Tantwa” in the list of Scheduled Castes as synonym of “Pan, Sawasi, Panr”, which proposal were examined by the Registrar General of India, which declined to accept the said proposal. In view of the same, therefore “Tanti-Tantwa” caste has not been included in the list of notified Castes under the Presidential Order so much so that the Central Government had written series of letters requesting the Government of Bihar to restrain its authorities and undertakings from issuing Scheduled Caste certificates to the members of “Tanti-Tantwa” in the name of “Pan, Sawasi, Panr”.

In the above context, the Court held that State Government had no authority to issue the resolution/Notification dated 1-7-2015, which was patently illegal, erroneous and unconstitutional, since it tinkered with the list of Scheduled Castes published under Article 341¹³¹ of the Constitution by the President. The State of Bihar despite being aware very well of its lack of authority to issue any order including a new caste in the Presidential Order, was not justified in merging “Tanti-Tantwa” with Pan, Sawasi, Panr under 2020 of the list of Scheduled Castes. Even the State could not have treated one caste as synonymous or similar to another caste notified in the Presidential Order as that would indirectly amount to usurping the power of the Parliament of including a sub-caste/sub-pro/sub-class in the existing list of Scheduled Castes. Even the State Backward Commission had no jurisdiction to make recommendations with respect to inclusion of any caste in the list of Presidential Order and thus, the Notification of July 2015 was “ex facie” unconstitutional.

The Court accordingly declared the action of the State to be mala fide and dehors the constitutional provisions and held that appointments effected on the basis of such illegal notification were also liable to be set aside. However, it was held that services of the people already appointed may not be terminated or recovery may not be made, for which they were not at fault. However balancing the equities, the Court held that posts utilised for appointing members of “Tanti-Tantwa” community be returned to the Scheduled Caste quota and all such persons be accommodated under their original category of Extremely Backward Classes, where the caste before its merger in July 2015 existed. The State was accordingly directed to take appropriate and necessary measures, and the appeal was accordingly disposed of.

***

(10) Sheikh Javed Iqbal v. State of U.P.¹³²

(Delivered on 18-7-2024)

Coram: 2-Judge Bench of Justices Ujjal Bhuyan and J.B. Pardiwala; JJ.

Majority Opinion Authored by: Justice Ujjal Bhuyan

———

The appeal arose out of the order passed by Allahabad High Court, which rejected the regular bail application of the petitioner under Section 439 of the Criminal Procedure Code, 1973. The appellant was being processed by the State for Commission of Offences under the provisions of the Unlawful Activities (Prevention) Act, 1967, along with Sections 489-B and 489-C of the Penal Code, 1860. The appellant was found in possession of huge fake Indian currency notes of around Rs 26 lakhs at the Indo-Nepal border. The appellant confessed being engaged in the illegal trade of supplying counterfeit Indian currency notes in Nepal. The bail applications of the appellant came to be rejected by both the District as well as the High Court.

There was an earlier challenge to the legality of the prosecution and the charge-sheet so filed on the ground of lack of sanction by the Governor, in which the High Court in October 2021 quashed the trial court’s order taking cognizance under Section 16 of the Unlawful Activities (Prevention) Act, 1967. The trial court was directed by the High Court to proceed only with the remaining offences under the provisions of the Penal Code, 1860 against the appellant. The aforesaid judgment of the High Court was appealed against before the Supreme Court, during the pendency of which sanction order had been issued afresh. Thus, the special leave petition was disposed of directing the High Court to reconsider the whole issue and decide afresh.

The appellant in the meanwhile, during the pendency of the aforesaid dispute regarding the legality of the cognizance order moved an application for grant of regular bail primarily on the grounds that he has already spent more than nine years in custody, with no possibility of trial being concluded in the near future. The evidence of only two witnesses had been recorded and there was no certainty about the actual number of witnesses proposed to be produced by the prosecution.

The State as well as the prosecution were unable to explain the probable time trial is likely to consume for its conclusion, as also expected number of witnesses prosecution seeks to examine. However, no answer could come to the aforesaid query of the Court.

Referring to Sections 15 and 16 of the Unlawful Activities (Prevention) Act, 1967, pertaining to commission of a “terrorist act”, the Court stated that the punishment which the appellant would be subjected to is between 5 years to imprisonment for life.

Section 43-D for Delhi provides for compliance of twin conditions, prior to grant of bail. The Court held that if the alleged offence is a serious one, it is all the more necessary for the prosecution to ensure that trial is concluded expeditiously. When trial gets prolonged, it is not open to the prosecution to oppose bail of the accused ― undertrial on the ground that charges are very serious, even though no end insight for the trial to conclude. Referring to the recent judgment of Javed Gulam Nabi Shaikh v. State of Maharashtra¹³³, it was reiterated that howsoever serious a crime may be, an accused has the right to speedy trial under the Constitution of India. The trial court and the High Court should not be forgetting the very well settled principle of law that bail is not to be withheld as a punishment. Referring further to the judgments of Supreme Court Legal Aid Committee case¹³⁴ and Shaheen Welfare Assn. v. Union of India¹³⁵, the Court stated that when charges against the accused are serious, the said seriousness will have to be balanced with certain other facts like the period of custody suffered and the likely period within which the trial can be expected to be completed. Referring further to the judgment of K.A. Najeeb case¹³⁶, the Court reiterated that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period, the courts would ordinarily be obligated to enlarge them on bail. Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 does not oust the ability and powers of the constitutional courts to grant bail for violation of their Part III rights under the Constitution of India. Long incarceration with the unlikelihood of trial being completed in the near future is in itself a good ground to grant bail, especially in offenses relating to the Unlawful Activities (Prevention) Act, 1967.

The provisions of the Unlawful Activities (Prevention) Act, 1967 are comparatively less stringent than Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, wherein in the case of latter the competent court needs to be satisfied that prima facie the accused is not guilty and unlikely to commit another offense while on bail. However, there is no such precondition under the Unlawful Activities (Prevention) Act, 1967 as in Narcotic Drugs and Psychotropic Substances Act, 1985. The Supreme Court thus declined to interfere with the order of the High Court enlarging the accused on bail after spending more than 5 years into custody. Referring further to the recent judgment of Frank Vitus case¹³⁷, the Court had held that conditions of the bail cannot be arbitrary and fanciful to be imposed by the Court whilst enlarging the accused on bail. The expression of “interests of justice” finding place under Section 437(3) of the Criminal Procedure Code, 1973 is referable to only good administrational justice or advancing the trial process but cannot be given any further broader meaning to curtail the liberty of any accused. Freakish or onerous conditions while granting bail cannot be imposed by courts, but only those conditions which are consistent with the object of granting bail. The aforesaid observations came in the context of imposition of one of the conditions relating to dropping of pin on google maps by the accused and keeping his location visible and available to the investigating officer at all the times. Setting aside of the aforesaid condition it was held that imposing any bail condition which enable the police/investing agency to track every movement of the accused released on bail by use of technology or otherwise would undoubtedly violate the right to privacy of the accused under Article 21.

Referring to other judgments of Supreme Court Legal Aid Committee case¹³⁸ and Gurwinder singh v. State of Punjab¹³⁹, the Court held that Constitutional Courts cannot be restrained from granting the bail to an accused on the account of restrictive statutory provisions in a penal statute, if it finds that the right of the accused under trial under the Article 21 has been infringed. Accordingly, the Court concluded that continued incarceration of the appellant any further cannot be justified and enlarged him on bail. The appeal was accordingly disposed of.

***

(11) Gaurav Kumar v. Union of India¹⁴⁰

(Delivered on 30-7-2024)

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

Majority Opinion Authored by: Justice Dr D.Y. Chandrachud

———

The batch of petitions instituted under Article 32 of the Constitution of India pertained to validity of the enrolment fees charged by State Bar Councils or Bar Council of India. The fundamental grievance was that the fees charged by State Bar Councils at the time of enrolment/admission of law graduates on State rolls is far more than the enrolment fee prescribed under Section 24(1)(f)¹⁴¹ of the Advocates Act, 1961 (for short, “AA, 1961”).

Background of the Advocates Act, 1961, Bar Council of India and the State Bar Councils

The Advocates Act, 1961 was enacted to amend and consolidate the law relating to the legal practitioners and constitute a common Bar for the whole country. Bar Council of India and State Bar Councils are established under the enactment and vested with separate powers. Section 17 occurring under Chapter III of the Advocates Act, 1961 pertains to the admission and enrolment of the Advocates, whereunder State Bar Councils are obligated to maintain and prepare a roll for Advocates. Section 24 prescribed the qualifications and condition for a person to be admitted as an advocate and various conditions therein, inter alia the prescription of payment of enrolment fee of Rs 600 through the State Bar Councils and Rs 100 to the Bar Council of India along with any stamp duty if chargeable.

Over and above the statutory prescription of Section 24 of the Advocates Act, 1961, State Bar Councils of different States across the country had been charging various fees and charges, under various heads, resulting into a law graduate being required to pay somewhere between Rs 15,000-42,000 as cumulative fees at the time of enrolment. The petitioner challenged this levy of excessive fees by the State Bar Councils, when the Supreme Court transferred to itself various petitions pending in multiple High Courts to itself for deciding the challenge on the pan India level.

Issues for consideration

The Court identified two broad issues emanating in the writ petitions for its consideration, viz:

(a) whether the enrolment fees charged by State Bar Councils are in contravention of Section 24(1)(f) of the Advocates Act, 1961; and

(b) whether payment of other miscellaneous fees can be made a precondition for enrolment.

Legal background up to the enactment of the Advocates Act, 1961

First law governing the advocates was the Legal Practitioners Act, 1879¹⁴² (for short, “LP Act”) which empowered the High Courts not established by royal charters to make rules for the qualifications and admissions of persons seeking to practice before them (vide Section 41). Initially barristers and solicitors predominated the original side practice in the High Court, whereas both advocates and vakils (Indian non-barristers) could act and plead before all High Court, except for the Calcutta High Court. As per the Report of the All India Bar Committee (“AIBC”) (1953), the Calcutta High Court excluded vakils from the Original Side, which distinction led to demand for creation of an All India Bar. Thus, acceding to the said demand, colonial legislature enacted the Bar Councils Act, 1926 providing for incorporation of Bar Councils and conferring powers, imposing duties on them. Thus, the Bar Councils Act, 1926 empowered the State Bar Councils to prescribe fees in respect of enrolment but fell short of fulfilling the demands for an All India Bar. Accordingly in 1951, the Government of India set up All India Bar Committee to enquire into this issue and provide a feasible legal solution, which recommended for a common role of advocates maintained by the respective State Bar Councils, permitting the enrolled advocates to practice in any Court in India including the Supreme Court and other such issues. It also suggested for a particular sum/initial fee to be paid at the time of enrolment with the State Bar Councils by the advocate concerned. The amount mentioned in the All India Bar Committee Report was however revised downwards.

Eventually in 1959, the Legal Practitioners Bill, 1959 was introduced, which was referred to the Joint Committee of Parliament, on the recommendations of which the Advocates Act, 1961 came to be enacted. This is because the Joint Committee of Parliament recommended that there would be only one class of legal practitioners in India that is “advocates”. The aim behind reducing the enrolment fee was to bring as many as eligible lawyers within its legislation.

Accordingly, the enrolment fees were fixed vide Section 24(1)(f) to be Rs 250 per entrant. However, the same had been revised from time to time. This shows that Parliament has been aware and responsive to the financial problems faced by the State Bar Councils. Referring to the judgments of O.N. Mohindroo v. Bar Council of Delhi¹⁴³ and Bar Council of U.P. v. State of U.P.¹⁴⁴, the Court stated that the object of the Advocates Act, 1961 is to constitute one common Bar for the whole of the country and to provide machinery for its regulated functioning. Enrolment fee payable falls under Entry 96, List 1. The Advocates Act, 1961 provides a complete Code for regulating the legal education and professional qualification of any aspirant seeking entry into the legal profession.

Power to levy fees through a delegated legislation

The Court then expounded the grounds on which delegated legislation can be challenged before it. Although delegated legislation was held to be enjoying the presumption of constitutionality, however it does not enjoy the same immunity as the parent legislation, and be struck down on the following grounds:

(i) lack of legislative competence to make delegated legislation;

(ii) violation of fundamental rights guaranteed under the Constitution;

(iii) violation of any provision of the Constitution;

(iv) failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act;

(v) repugnance to any other enactment; and

(vi) manifest arbitrariness.

Referring to Articles 265 and 366(28), and its judgment of CIT v. McDowell & Co. Ltd.¹⁴⁵, the Court held that any tax as defined under the said articles cannot be levied without a legislative action or legislative sanction. Tax cannot be exacted in exercise of executive powers by the State by falling back upon Article 73 by the Union or Article 162 by the State. Even the power to levy any fee (being an impost and a compulsory exaction of money) must flow from express authority of law and not otherwise. Referring to the judgment of Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla¹⁴⁶, it was stated that such a power to levy fees cannot be implied or be drawn by inference, unless it is specifically provided for under the parent legislation on the delegate.

The Court then delineated the difference between “fees for licences” and “fees for service”, wherein the fee is a money taken by the Government generally as a return for the work done or services rendered. However, there may be fees which may have regulatory features also, as in the fee levied for regulatory activities undertaken by the State or its instrumentalities for supervising, regulating or monitoring any particular trade, business or profession. Such a regulatory fee is levied to defray the administrative costs by the State on public resources. The enrolment fee under Section 24(1)(f) of the Advocates Act, 1961 was therefore held to be in the realm of a regulatory fee.

Fees charged by State Bar Councils

The Court then underscored that State Bar Councils are charging different fees at the time of enrolment, varying widely across the States. Various other heads of fees like library fees, certificate fees, administration fees, identity card fees, etc. are being charged from the advocates. The State Bar Councils justified this levy of fees based on Bar Council of India resolution of June 2013, which permitted the State Bar Councils to charge revised enrolment fees. Holding that Advocates Act, 1961 establishes State Bar Councils and Bar Council of India to create a common All India Bar, all the advocates proposed to be enrolled or admitted on the roles of the State Bar Councils are entitled to similar treatment. Referring to Sections 15 and 28 of the Advocates Act, 1961, the rule-making power available to both the State Bar Councils and Bar Council of Indias, it was stated that such rule-making powers being regulatory, cannot be construed so widely as to confer independent rule-making powers on State Bar Councils, which are conferred only on the Bar Council of India and not on them. State Bar Councils therefore cannot use their rule-making power under Section 15 with respect to subject-matters on which Bar Council of India has been granted exclusive power to make Rules under the Advocates Act, 1961. Approval by the Bar Council of India to an invalid rule made by State Bar Councils cannot be deemed to validate the invalid or the unconstitutional rule.

Interpreting Section 24(1), it was held that conditions to be imposed by State Bar Councils at the time of enrolment should be consistent with the qualifications already prescribed by the statute. Bar Council of India or State Bar Councils cannot prescribe any condition or qualification which seeks to modify what has already been prescribed by the statute or contrary to the stipulated qualifications and/or inconsistent with the objective and purposes of the Advocates Act, 1961. Therefore, the Rules enacted by State Bar Councils are only ancillary to Section 24 and cannot introduce new substantive rights, obligations or disabilities not contemplated by the provisions on the parent enactment. Referring to the judgment of Kunj Behari Lal Butail v. State of H.P.¹⁴⁷, the Court held that Rules must align with the object and purpose of the Advocates Act, 1961, namely, the creation of a common Bar and regulation for legal practitioners and their qualifications, enrolment, right to practice and discipline. Referring further to the judgment of Agricultural Market Committee v. Shalimar Chemical Works Ltd.¹⁴⁸, it was observed that delegated legislation cannot increase or amplify the ambit of the fiscal provision provided under the parent enactment. A fiscal provision has to be construed strictly, and a delegate cannot consider any circumstance, factor or condition not contemplated by the parent legislation.

Accordingly, it was held that State Bar Councils cannot charge the “enrolment fees” beyond the express legal stipulation under Section 24(1)(f) as it currently stands and prescribing any amount over, above and beyond Rs 700 or Rs 125 in case of Scheduled Caste/Scheduled Tribe candidates was ex facie contrary to Section 24(1)(f). State Bar Councils and Bar Council of India being delegates of Parliament cannot alter or modify the fiscal policy laid down by the Parliament by prescribing additional fees at the time of enrolment, State Bar Councils created new substantive obligations not contemplated by the provisions of the Advocates Act, 1961 and thus when contrary to the legislative prescription of the Advocates Act, 1961.

The Court further held that even the Bar Council of India resolution of June 2013, revising the enrolment fees charged by the State Bar Councils was contrary to Section 24(1)(f) as the legislature never clothed Bar Council of India with any authority to revise or increase enrolment fees. Accordingly, the resolution of June 2013 was also held to be contrary to Section 24(1)(f) of the Advocates Act, 1961.

Validity of levy of other heads of fees at the time of enrolment

The Court then considered two sub-issues arising before it, viz. whether other multiple heads of other miscellaneous fees accompanying the enrolment fees at the time of enrolment could also be considered as enrolment fees and whether Bar Council of India or State Bar Councils were authorised to levy the same as a precondition for enrolment.

Reference was made to the resolution of Bar Council of India fixing the verification fees at the time of submission of enrolment forms, wherein State Bar Councils were authorised to charge a sum of Rs 2500 for verification of various academic and educational certificates of the candidates at the time of enrolment. Apart from this as various State Bar Councils of various States also levied charges under various heads at the time of enrolment, even though they may not be related to the process of enrolment “stricto sensu”. Referring to Rule 40 under Section 4(a) of Chapter II of Part VI under Bar Council of India Rules, the Court held that the only permissible head which State Bar Councils can realise is the amount of Rs 300 per year, that too after enrolment of the advocate concerned, not prior to it.

The Court then examined the argument of substantive equality and manifest arbitrariness in the levy of exorbitant enrolment fees charged by State Bar Councils. It was held that high enrolment fees perpetuate structural discrimination against persons from marginalised and economically weaker sections of the society, which impacts the entry of law graduates in the legal profession. Young law graduates seeking to enter litigation start from a position of disadvantage. Referring to the judgment of S. Seshachalam v. Bar Council of T.N.¹⁴⁹, it was held that lawyers have to undertake immense struggle throughout their life to remain in the profession, a situation akin to “riding a bicycle uphill with the wind against one”.

Excessive fees being violative of Article 14 & 19(1)(g) being manifestly arbitrary and unreasonable

The Court then proceeded to delineate the concept of substantive equality, aimed at eliminating individual, institutional and systemic discrimination against disadvantaged groups, undermining their full and equal participation in the society. Referring to the judgments of Joseph Shine v. Union of India¹⁵⁰ and Navtej Singh Johar v. Union of India¹⁵¹, the Court held that primary inquiry undertaken by the Court towards realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals; the focus of such an approach is not simply on the equal treatment under the law, but rather on the “real impact and effect” of the legislation. Reference was also made to the judgment of BCI v. Bonnie Foi Law College¹⁵², the Court restated that the burden of payment of enrolment fees and other miscellaneous fees imposed by State Bar Councils falls more harshly on persons from marginalised and economically weaker sections of the society, in turn perpetuating a culture of systemic exclusion and discrimination that impacts the entry of law graduates into the legal profession and even beyond. Referring further to the judgment of S. Seshachalam case¹⁵³, the Court held that the profession of law is a noble calling. Although it is true that slowly working one’s way up is the norm in any profession, including law, but initially young advocates have to remain in the long queue for a prolonged period and struggle through greater hardships. For majority of legal fraternity every day is a challenge. Despite the difficult times, the lawyer who sets up practice straight after enrolment struggles to settle down in the profession. Some of the lawyers remain struggling throughout their lives yet choose to remain in the profession, akin to “riding a bicycle uphill with the wind against one”. Students from backward and Dalit communities face English language barriers, reducing their opportunities of practicing before the High Courts and Supreme Court, where court proceedings are in English. In a legal system, predisposed against the marginalised, therefore the precondition of paying exorbitant fees in the name of enrolment fee creates an additional barrier for many. Charging exorbitant enrolment fees and miscellaneous fees as a precondition for enrolment creates a barrier to entry into the legal profession, the levy of which denigrates the dignity of those who face social and economic barriers otherwise in their life. Such an exorbitant fee structure is therefore contrary to the principle of substantive equality. Referring to the judgment of Ravinder Kumar Dhariwal v. Union of India¹⁵⁴, the Court held that the purpose of the Advocates Act, 1961 of creating an inclusive Bar cannot be defeated by having exclusionary conditions which seek to create social and economic barriers. By imposing such exclusionary conditions, Bar Councils are acting against their own objective of acting in public interest and ensuring greater representation of persons from marginalised communities in the legal profession.

Thus, for failing to reflect an adequate determining principle aligning with the legislative policy of the Advocates Act, 1961, the delegated legislation levying or permitting the levy of such fees by the Bar Council of India and the State Bar Councils, the Rules and resolutions of the Bar Council of India and State Bar Councils were held to be forbiddingly excessive, disproportionate and resultantly manifestly arbitrary. They are not only contrary to Section 24(1)(f) but also fall foul of Article 14 being manifestly arbitrary, for denying substantive equality to various young lawyers at the entry level.

Examining the reasonableness of the enrolment fees, the Court held that right to practise law is not only a statutory right, but also a fundamental right protected under Article 19(1)(g), subject of course to reasonable restrictions and regulations. Referring to the judgement of Mohd. Yasin v. Town Area Committee¹⁵⁵, the Court stated that imposition of licence fee at the entry stage as a precondition for any business not only takes away the property of the licensee but also operates as a restriction on his right to carry on the business. An illegal impost, not sanctioned by the parent enactment operates as an unreasonable restriction on the right to carry occupation, trade or business under Article 19(1)(g). Likewise, any delegated legislation, contrary or beyond the scope of any legislative policy of the parent legislation, places an unreasonable restriction in violation of Article 19(1)(g). Therefore, current enrolment fee structure of State Bar Councils, requiring the advocate to pay Rs 15,000-42,000 as a precondition to enrolment at the stage of entry causes economic hardships, violative of Section 24(1)(f) and therefore unreasonable, resultantly infringing Article 19(1)(g).

Accordingly, the Court whilst declaring the enrolment fees to be unreasonable, unconstitutional struck down the decision of the Bar Council of India and Sate Bar Council permitting their levy from young law graduates. However, since large number of advocates had already paid the excessive enrolment fee and refund of the same would have created financial hardships for all the State Bar Councils, therefore the judgment was held to have prospective effect. The State Bar Councils were not required to refund the excessive enrolment fees collected before the date of the present judgment since the same had been levied for a considerable duration in the past and being utilised to carry out day-to-day functioning. Accordingly, the Court returned the following conclusions at the end of the judgment:

(1) State Bar Councils cannot charge “enrolment fees” beyond the express legal stipulation under Section 24(1)(f) as it currently stands.

(2) Section 24(1)(f) specifically lays down the fiscal preconditions subject to which an advocate can be enrolled on State rolls. State Bar Councils and Bar Council of India cannot demand payment of fees other than the stipulated enrolment fee and stamp duty, if any, as a precondition to enrolment.

(3) The decision of State Bar Councils to charge fees and charges at the time of enrolment in excess of the legal stipulation under Section 24(1)(f) violates Articles 14 and 19(1)(g)¹⁵⁶ of the Constitution.

(4) This decision will have prospective effect. State Bar Councils are not required to refund the excess enrolment fees collected before the date of this judgment.

***

(12) State (NCT of Delhi) v. Lt. Governor of Delhi¹⁵⁷

(Delivered on 5-8-2024)

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

Majority Opinion Authored by: Justice P.S. Narasimha

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Issue for consideration

The issue arose about interpretation of Section 3(3)(b)(i)¹⁵⁸ of the Delhi Municipal Corporation Act, 1957 ( “DMC Act”) as to whether the Lieutenant Governor of the National Capital Territory of Delhi ( “NCTD”) shall nominate 10 persons as Aldermen on the aid and advice of the Council of Ministers (“COM”) or on the basis of his independent, individual discretion; whether nomination of such 10 persons with special knowledge in the municipal administration to the Delhi Municipal Corporation is effected by the Lieutenant Governor as a statutory duty attached to his office or under the advice of the Council of Ministers as provided under Article 239-AA(4)¹⁵⁹ of the Constitution of India.

Factual background & legislative history relating to elections and nomination of aldermen

The Delhi Municipal Corporation Act, 1957 originally employed the expression “Aldermen” to represent class of persons other than Councillors who were represented in the Delhi Municipal Corporation. However, post 1993 Amendment to the Delhi Municipal Corporation Act, 1957, the said term “Aldermen” came to be substituted with the descriptive language of “persons who have special knowledge and experience in the municipal administration”. The Delhi Municipal Corporation thus comprises of Councillors chosen by direct elections from the wards and persons represented through nominations vide arrangement made under Section 3(3) of the Delhi Municipal Corporation Act, 1957.

In the elections convened for Delhi Municipal Corporation in December 2022, Aam Aadmi Party obtained simple majority by winning 134 out of 250 wards, whereas Bharatiya Janata Party came second. In this backdrop, the Delhi Municipal Corporation recommended Lieutenant Governor for nominating 10 persons to the Corporation as provided under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957. However overlooking the same, the Lieutenant Governor nominated 10 members and notified the same in the Delhi Gazette exercising his independent, individual discretion in relation thereto. Accordingly, Article 32 petition came to be instituted assailing the aforesaid notifications appointing 10 Aldermen by the Lieutenant Governor on the fundamental ground of having acted without aid and advice of the Council of Ministers.

Prior to the 69th Constitution Amendment of 1991, procedure for election of Aldermen was through elections amongst the Councillors for electing persons who are qualified to be Councillors, but were neither Councillors, nor had contested in the election to the said post.

However, accepting the recommendations of the Balakrishnan Committee, which recommended for decentralisation of Delhi administration and constitution of Legislative Assembly for National Capital Territory of Delhi by way of constitutional amendment, Articles 239-AA and 239-AB came to be inserted, with consequential amendments to the Delhi Municipal Corporation Act, 1957 as well. Pertinently the Delhi Municipal Corporation Act, 1957 is a parliamentary enactment. Vide Article 239-AA(4), titled as “special provisions with respect to Delhi”, the Council of Ministers came to be constituted for National Capital Territory of Delhi, with the Lieutenant Governor obligated to act on the aid and advice of the same. Article 239-AA(4) read thus:

239-AA. Special provisions with respect to Delhi.—(4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion.

(emphasis supplied)

Following the introductions of Articles 239-AA and 239-AB, Parliament also enacted the Government of National Capital Territory of Delhi Act, 1991¹⁶⁰ for giving full effect to the constitution amendment, Part IV of which relates to “Lieutenant Governor and Ministers” and their powers.

Simultaneously, the Delhi Municipal Corporation Act, 1957 was also amended in 1993, an Act relatable to Entry 5, List II of Schedule 7. Through this Amendment of 1993, Section 3(3)(b)(i) was introduced, authorising the Lieutenant Governor to nominate 10 persons to be represented in the corporation, as aforestated.

Trajectory of judicial interpretation of Article 239-AA and the Government of National Capital Territory of Delhi Act, 1991

Two Constitution Bench judgments of the Supreme Court delved into, interpreted and explicated the distribution of legislative powers between Parliament vis-à-vis the Legislative Assembly of National Capital Territory of Delhi; the distribution of the executive powers between the undergraduate and the Government of National Capital Territory of Delhi and the respective scope of exercise of powers. These two judgments are as follows:

(a) 2018 ― State (NCT of Delhi) v. Union of India¹⁶¹; and

(b) 2023 ― State (NCT of Delhi) v. Union of India¹⁶².

Both the judgments affirm the unique position of National Capital Territory of Delhi under the Constitution of India, which was labelled as a sui generis provision (one of its own kind). The unique position of National Capital Territory of Delhi is that the Legislative Assembly can make laws for all matters enumerated under Lists II and III (except for Entries 1, 2 and 18, List II, reserved for the Union). The Union has legislative and executive power both with respect to matters concerning Entries 1, 2 and 18, List II, whereas the Government of National Capital Territory of Delhi has the legislative as well as executive powers with respect to all the matters in List II as well as List III (except as mentioned supra).

Article 239-AA(3)(b) empowers the Parliament to make laws on any and all matters in Lists II and III of Schedule 7, falling within the reserve of National Capital Territory of Delhi. If the Parliament exercises such legislative power, any law passed by the Legislative Assembly of National Capital Territory of Delhi is rendered void to the extent of repugnancy with the parliamentary law or the field occupied by the parliamentary law. Further if Parliament makes a law in relation to any subject of Lists II and III, executive power of Government of National Capital Territory of Delhi also stands limited to such extent. The powers available to the Parliament by virtue of Article 239-AA to legislate even with respect to subjects of the State List (List II) is in stark contrast with the scheme of Article 246(3), whereunder the Parliament cannot legislate or possess legislative competence over State List subjects. Article 239-AA therefore enacts a “constitutional fiction”.

The 2023 judgment of State (NCT of Delhi) case¹⁶³, further reaffirmed what was stated earlier by the Constitution Bench in 2018 judgment¹⁶⁴. However moving a step ahead, it held that thus the executive power of the Union in respect of National Capital Territory of Delhi is confined to the three subjects in the State List (List II) for which the legislative power of the Delhi Legislative Assembly stands excluded under Article 239-AA(3)(a). However, excepting these three subjects, Government of Delhi possesses plenary executive powers in relation to all the matters for which the Assembly has powers to legislate.

In the context of parliamentary enactment of the Delhi Municipal Corporation Act, 1957, the 2018 judgment of State (NCT of Delhi) case¹⁶⁵, held that if the Parliament makes any law with respect to any subject falling in the State List or the Concurrent List, the executive action of the State must conform and bend to the parliamentary law. The executive power of the Government of National Capital Territory of Delhi also stands “limited and becomes subject to” the parliamentary law.

In view of the above, therefore the contention of the National Capital Territory of Delhi that Lieutenant Governor enjoys similar constitutional powers akin to that of a Governor of any State under Article 163¹⁶⁶ of the Constitution of India was rejected. The Court held that whereas under Article 163 requires the Governor of a State to act on the advice of Council of Ministers “except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion”, under Article 239-AA(4), the position of Lieutenant Governor is entirely different; the Lieutenant Governor under Article 239-AA(4) is authorised to act in his discretion “insofar as he is required by or under any law (statutory enactment and not necessarily the provisions of Constitution of India)”.

The distinctive feature of Article 239-AA in the backdrop of unique position of National Capital Territory therefore adopts the mandate of “law” as the basis for exercise of discretion by the Lieutenant Governor, instead of acting on the aid and advice of the Council of Ministers or be bound thereof.

Legislative and executive relationship between the Union of India and the State/National Capital Territory of Delhi under the Constitution of India

In view of the interpretation accorded by both the Constitution Bench judgments of 2018¹⁶⁷ and 2023¹⁶⁸, the special scheme of Article 239-AA empowers the Parliament to make laws (legislative power for National Capital Territory of Delhi) with respect to “any matter in the three Lists”. This is where the departure from the constitutional scheme is made with respect to powers of the Parliament with respect to running vis-à-vis the States (other than National Capital Territory of Delhi). While Parliament does not have legislative competence over Entries in List II for States, it has power to make laws even under List II under Article 239-AA. Law made by the Parliament prevails regardless made before or after any law made by the Legislative Assembly or National Capital Territory of Delhi rendering the latter’s legislation as void to the extent of repugnancy. Also, such a law denudes the Legislative Assembly of its legislative competence to make laws with respect to that subject. Correspondingly the executive power also disappears for the Government of National Capital Territory of Delhi, it being coextensive and coterminous with the legislative power (which ceases to exist).

Likewise, Government of National Capital Territory of Delhi possesses the executive power with respect to all the matters to which it enjoys the legislative competence enumerated both under the State as well as the Concurrent List (with exceptions as mentioned supra). Likewise, the Union also enjoys exclusive executive power with respect to matters under the Entries 1, 2 and 18 of List II/State List being specifically excluded from the legislative competence of National Capital Territory of Delhi.

The Lieutenant Governor under Article 239-AA(4) is bound to act on the aid and advice of the Council of Ministers read with Section 44 of the Government of National Capital Territory of Delhi, 1991, just like the Governor is obligated under Article 163 in the context of States. However, there is also a departure, insofar as the Lieutenant Governor is authorised to act in his individual, independent capacity, in his discretion if so “authorised by or under any law”. This law may be made either by the Parliament or by the Legislative Assembly, but it is the statutory provision alone that will determine whether power is to be exercised by the Lieutenant Governor on his own accord or on the aid and advice of the Council of Ministers.

Impact of introduction of Part IX-A on the Delhi Municipal Corporation Act, 1957 and its correlation

The Court then examined the background and impact of the Constitution 74th Amendment Bill incorporating Part IX-A relating to municipalities in the Constitution of India. These provisions were introduced for constitutional recognition to municipalities, coupled with provisions granting autonomy for municipal administration, their elections, composition, duration, reservation, etc. The Delhi Municipal Corporation Act, 1957 which was also amended around the same time in 1993 also imbibed the constitutional spirit of autonomy and independence to the Delhi Municipal Corporation.

The power of nominations of Aldermen was vested with the Lieutenant Governor by Amendment of Section 3(3)(b) of the Delhi Municipal Corporation Act, 1957. The Lieutenant Governor by virtue of the amendment was authorised through the statutory provisions to nominate 10 persons as Aldermen, a power given to be exercised in his independent, individual capacity exercising his own discretion. There were other similar provisions relating to nomination of other posts and positions like experts, Election Commissioner, and other such roles and responsibilities vested with the Lieutenant Governor, to be exercisable by him as an independent body without the involvement of Council of Ministers. The Court thus underscoring that Delhi Municipal Corporation being the parliamentary enactment clearly intended to entrust the powers in the Lieutenant Governor as a statutory duty and not in the Legislative Assembly. The power was so vested for the first time through the 1993 Amendment, for incorporating the constitutional changes of introduction of Part IX-A relating to municipalities in the Constitution of India. The power to nominate the Aldermen is therefore not a vestige of the past or a power of the administrator continued by default, but a power consciously incorporated and imbibed in the Delhi Municipal Corporation Act, 1957 by the Parliament.

The Court accordingly held that Lieutenant Governor was never intended post the 1993 Amendment to be guided by the aid and advice of the Council of Ministers, more so it being a parliamentary enactment. This power is to be exercised as statutory duty enacted as a law under Article 239-AA(4). The Supreme Court accordingly dismissed the petition challenging the appointment/nomination of 10 persons by the Lieutenant Governor.

***

(13) Blue Dreamz Advertising (P) Ltd. v. Kolkata Municipal Corpn.¹⁶⁹

(Delivered on 7-8-2024)

Coram: 3-Judge Bench of Justices B.R. Gavai, Sanjay Karol and K.V. Viswanathan; JJ.

Majority Opinion Authored by: Justice K.V. Viswanathan

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The special leave petition was filed against the judgment of the Division Bench of the Calcutta High Court, which had set aside the judgment of the learned Single Judge dismissing the writ petition, and confirming the order of blacklisting passed by the Kolkata Municipal Corporation (for short, “KMC”).

Factual background

Kolkata Municipal Corporation invited tenders for awarding of contract for display of advertisement on street hoardings, bus passenger shelters and kiosks within its territory. The appellant was selected as a successful bidder having quoted the highest rate. However, for want of compliance of various pre-agreement formalities like alleged non-receipt of any formal work order, non-receipt of any format of bank guarantee, no objection certificate for the electric connection and other such issues, the commencement of work could not happen on all the 250 designated hoarding spots.

The Corporation on the other hand started demanding payment for the contract period on its commencement, starting June 2014 and quoted most of the demands made by the appellant as frivolous and attempted to avoid execution of the agreement. So much so the appellant was warned that the payment outstanding under the contract if not made, then coercive steps under the tender clauses would be taken. In the backdrop of this dispute between both the parties a show-cause notice (“SCN”) proposing cancellation of the whole contract was issued, quoting outstanding dues of around Rs 10.28 crores. Also thereafter, after the one-year period of the contract got over, the appellant was informed through a public notice published in the newspaper that he stands blacklisted for all the contracts/tenders to be floated by Kolkata Municipal Corporation. When challenge was laid to the demand notices and the blacklisting orders, the same was withdrawn with an undertaking to follow PNJ prior to passing any order by the Kolkata Municipal Corporation before the Calcutta High Court.

Thereafter fresh show-cause notice was issued on multiple grounds alleging failure on the part of the appellant to have breached multiple stipulations of the contract, which was replied by the appellant rebutting all the grounds of show-cause notice. Simultaneously reference was made to the dispute along with the claim of damages by the appellant to the sole arbitrator. In the arbitration proceedings, interestingly the claim of the appellant was partly allowed and termination order being found illegal. Damages were awarded by the arbitrator to the petitioner.

Debarment/blacklisting order

Thereafter through its order issued in March 2016, Kolkata Municipal Corporation debarred/blacklisted the appellant for a period of 5 years from participating in any tender floated by it on the very same set of allegations of non-payment of huge amount and showing negligence in the performance of the contract. It was this debarment order of March 2016 that came to be challenged before the High Court. As stated supra, the arbitrator to whom the dispute was referred to and claim of damages was lodged by the appellant and also awarded a sum of around Rs 2.23 crores along with accompanying interest to the appellants.

Proceedings in the High Court

The aforesaid debarment/blacklisting order was challenged before the High Court, wherein the Single Bench quashed the said blacklisting order primarily on the ground that there was a civil dispute between the parties relating to payments owed/not owed to Kolkata Municipal Corporation by the appellant, which was also driven to arbitration. Relying on the judgment of B.S.N Joshi & Sons Ltd. v. Nair Coal Services Ltd.¹⁷⁰, the Single Bench held that Debarment Order could not be premised upon the said ground of non-payment of outstanding dues since the appellant had raised a bona fide dispute and until and unless such a dispute was resolved, he could not have been blacklisted.

Against the aforesaid judgment of the Single Bench, matter was carried in appeal before the Division Bench by the Kolkata Municipal Corporation, which set aside the judgment holding that the debarment/blacklisting order was a reasoned one preceded by a due opportunity of hearing being extended to the appellant and resultantly it could not be treated as unreasonable, unfair or disproportionate.

Issues and their consideration

Accordingly, the Court framed the primary issue of consideration as to whether the order of the Corporation of March 2016 debarring the appellant for a period of 5 years was valid and justified.

Relying on the judgment of Erusian Equipment & Chemicals Ltd. v. State of W.B.¹⁷¹ and B.S.N Joshi & Sons Ltd. case¹⁷², it was held that blacklisting is a form of commercial disability for any person/entity, having disastrous consequences upon his business. Whether a person defaults in making payment or not would depend upon the context in which allegations are made as also the relevant statutes operating in the field and terms, conditions of the contract. However, if the dispute arises regarding the outstanding payment, if the contractor/tenderer raises a bona fide dispute regarding the said claim, he cannot be declared as a defaulter till the aforesaid dispute is not resolved.

The Court further held that permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable, especially when substantial payments out of the disputed amount have already been made. Order of debarment/blacklisting must be passed only in those cases, where there are concerns of protecting public interest, discouraging and demoralising contractors who lack business integrity, engage in dishonest or illegal conduct or are unable to perform satisfactorily. Because of blacklisting not only the person concerned is debarred from dealing with the employer concerned, but its dealings with other entities and other employers also gets proscribed. Therefore, in cases of ordinary breach of contract debarment for number of years tantamount to civil death since the said person is commercially ostracised universally for large number of employers and tendering companies. Therefore, in case of any ordinary breach of contract, to which explanation so offered is a bona fide dispute, then too readily passing of Debarment Orders is impermissible.

The Court then proceeded to examine the individual facts of the appellant and the various issues/grounds of dispute between the appellant and Kolkata Municipal Corporation especially pertaining to outstanding dues demanded from him. Rather the allegations, grounds and reasons quoted in the Debarment Order (even though detailed) fell short of rendering his conduct as so abhorrent as to justify invocation of drastic remedy of blacklisting. The appellant was thus subjected clearly to a disproportionate penalty wherein Kolkata Municipal Corporation had lifted a sledgehammer to crack a nut. Besides on its end the Kolkata Municipal Corporation despite the dispute getting amplified with the appellant, never resorted to arbitration for settlement of the dispute. The perusal of the award passed by the arbitrator demonstrates that around 10 issues were framed pertaining to the bona fide civil and monetary dispute between the parties.

Criticising the approach adopted by the Division Bench, the Supreme Court further held that merely because the blacklisting order carried reasons is not good enough, but what is to be seen is whether the reason justify invocation of such drastic penalty and whether such penalty was proportionate was the moot question. Any decision to blacklist should not only be strictly within the parameters of law but must also comport with the principles of proportionality. The Division Bench was clearly held to have overlooked the ratio of Supreme Court’s judgment in B.S.N. Joshi case¹⁷³.

Accordingly, the appeal was allowed, and the blacklisting/debarment order of March 2016 was quashed by the Supreme Court.

***

(14) State (NCTof Delhi) v. BSK Realtors LLP¹⁷⁴

(Delivered on 22-8-2024)

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

Majority Opinion Authored by: Justice Surya Kant

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The appeals before the Supreme Court arose in divergent views of the High Court about lapsing of land acquisition proceedings under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. A 3-Judge Bench in PMC judgment¹⁷⁵, took a view that if any one of the two ingredients of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 were not satisfied, then the acquisition proceedings under challenge would be deemed to have been lapsed. These two conditions were either non-payment of the compensation or failure to take physical possession of the land by the acquiring authorities. The aforesaid PMC judgment¹⁷⁶ was overruled subsequently by the Constitution Bench in Indore Development Authority (LAPSE-5 J.) v. Manoharlal¹⁷⁷, holding that the Land Acquisition proceedings would lapse only when both the twin conditions are met simultaneously. The Constitution Bench whilst overruling PMC judgment¹⁷⁸ also granted liberty to various State authorities to seek review of various judgments and orders passed by various courts of the country relying upon the overruled PMC judgment¹⁷⁹. Thereafter a number of review petitions and special leave petitions were listed before the 2-Judge Bench of the Supreme Court for recalling orders through which it was held that acquisition proceedings had lapsed. In certain cases, even after the decision of the civil appeal on merits holding the acquisition proceedings to have been lapsed, a fresh round of litigation was initiated by the Government of National Capital Territory of Delhi and Delhi Development Authority relying on Manoharlal judgment¹⁸⁰. Eventually through its order dated 21-7-2022, a Bench of two Judges referred the matter for being heard and decided by 3 Judges. The primary plea taken by the landowners was that in view of the doctrine of merger being attracted, the judgments holding the Land Acquisition proceedings to have been lapsed have attained finality and cannot be reopened. The State authorities on the other hand relied upon the observation of the Constitution Bench permitting review and reopening of all the concluded matters decided based on overruled PMC judgment¹⁸¹.

Classification of cases and issues for consideration

In view of the arguments raised by various parties, the Court framed following issues for its consideration and adjudication:

(a) Whether the dismissal of a civil appeal preferred by one appellant in the first round operates as res judicata against the other appellant in the second round before the Supreme Court?

(b) Whether suppression of the first round of litigation by the appellants constitutes a material fact, thereby inviting an outright dismissal of the appeals at the threshold?

(c) Does the doctrine of merger operate as a bar to entertain the civil appeals in the present case?

(d) Whether the previous determination of the rights of subsequent purchasers in an inter se dispute precludes the same issue from being reconsidered between the same parties?

The Court also broadly categorised the batch of cases into 5 different broad categories, which were as follows:

(a) Applications filed by State seeking recall and review of earlier judgments passed based on PMC judgment¹⁸² declaring the land acquisition proceedings as having attained finality up to the Supreme Court.

(b) Review applications filed in concluded civil appeals which were divided on merits through speaking order of the judgment based on PMC judgment¹⁸³.

(c) Reviews/recall filed seeking reopening of special leave petitions dismissed in limine affirming the judgments of the High Court declaring the proceedings as having been lapsed.

(d) Pending cases/special leave petitions/civil appeals before the Supreme Court filed by landowners or the State authorities challenging the view taken by the High Courts on lapsing/non lapsing of proceedings on the basis of PMC judgment¹⁸⁴.

(e) The cases where landowners are subsequent purchasers but not disclosed in the pending proceedings.

Applicability of res judicata and doctrine of merger to the present batch of cases

It was argued on behalf of the landowners that dismissal of civil appeal on merits after consideration of the law as applicable on the said day would act as res judicata against the others in subsequent rounds of litigation. Referring to the judgment of Musammat Munni Bibi v. Triloki Nath¹⁸⁵ and State of Gujarat v. Meghji Pethraj Shah Charitable Trust¹⁸⁶, the Court held that the co-respondents before the High Court, namely, Government of National Capital Territory of Delhi and Delhi Development Authority did not have any conflicting interests, nor was there any disputed issue between them. In the first round, there was no issue on which Government of National Capital Territory of Delhi and Delhi Development Authority were at loggerheads and thus the Court negated the applicability of res judicata. It was further held that doctrine of res judicata belongs to the domain of procedure and cannot be exalted to the status of a legislative direction between the parties as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a court finally between them. Where however the question is one purely of law, relating to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, res judicata would not protect the beneficiary party in a challenge to the said verdict since a Rule of procedure can never supersede the law of the land.

It was further contended by the landowners relying upon the judgment of Kunhayammed v. State of Kerala¹⁸⁷, that in view of doctrine of merger and the Rule of stare decisis, judgments of the High Court which have attained finality up to the Supreme Court need not be reopened or reconsidered. The Supreme Court whilst rejecting this contention held that the said doctrine of merger is not a universal or unlimited application and the case at hand shall be governed by the exception laid down in the judgment of Kunhayammed case¹⁸⁸. In the rarest of rare cases deviation from the doctrine of merger is permissible, more so when the Court intends to invoke powers under Article 142¹⁸⁹ of the Constitution of India. It was held that PMC judgment¹⁹⁰ lost its presidential value after having been recalled through order dated 16-7-2020¹⁹¹ by a 3-Judge Bench separately. Thus, having lost its presidential value, it would not apply to any subsequent judgment passed on the basis thereof.

Further in the case at hand public interest would also be at play where interests of the State exchequer or the lands acquired by it long back are involved. The comparative interest of the landowners whilst balancing public with the private interest would be nominal as compared to the public at large. The public at large has acquired interest in the public infrastructures already completed or in the process of completion and therefore doctrine of merger cannot be applied mechanically in respect of groups/categories A and B cases as it will lead to irreversible consequences. Accordingly, the Supreme Court invoked extraordinary powers under Article 142 for doing complete justice between the expropriated landowners by passing directions relating to payment of suitable compensation to the landowners.

Suppression of material facts by the appellant State authorities

It was contended by the landowners that State authorities had suppressed that civil appeals filed against the very same impugned order had already been dismissed and such conduct amounted to filing an incorrect declaration under Order 21 Rule 3(2) of the Supreme Court Rules, 2013, warranting dismissal of the appeals. Referring to the judgments of S.J.S Business Enterprises (P) Ltd. v. State of Bihar¹⁹² and Arunima Baruah v. Union of India¹⁹³, the Court held that the test to be applied whilst gauging the allegation of suppression of material fact is whether the said suppressed fact is a material one which had a material impact and effect on the merits of the case. A reverse inquiry must be undertaken as to whether the fact if not had been suppressed, whether it would have had an effect on the outcome of the case or not. “Material fact” would mean material for the purposes of determination of the lis, whether the same was necessary for grant or denial of the relief. Applying the aforesaid tests, Court held that suppression of prior dismissal of appeals filed by some of the other State authorities earlier or non-disclosure of the said details thereof cannot be made a ground for dismissal of the present appeals. The same was not considered to be so compelling for the Court to defeat a substantial argument with the weapon of technicality.

Allegations of frauds committed by landowners

It was argued by State authorities that suppressions had been affected by various landowners who had executed sale transactions, transferred ownership and title to third parties despite the acquisition proceedings underway. Referring to the judgment of Shiv Kumar v. Union of India¹⁹⁴, the Supreme Court held that subsequent purchasers do not have the locus to contest the acquisition and/or claim lapse of the acquisition proceedings. Interestingly the judgment of Shiv Kumar case¹⁹⁵ overruled the previous judgment of the Supreme Court in State (NCT of Delhi) v. Manav Dharam Trust¹⁹⁶. Accordingly, the Court held that the allegations of suppression of factum of transfership or subsequent sale to third parties during the pendency of the acquisition proceedings are questions to be tested by the High Court based on facts, documents and pleadings filed before it.

Conclusion

The Court accordingly issued detailed conclusions qua each category of the cases outlined by it. Broadly it was held that civil appeals at the instance of State authorities were maintainable and not barred by res judicata or doctrine of merger. Owing to exceptional and unprecedented situations having arisen in the batch of cases, the State authorities were directed to initiate fresh acquisition proceedings under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a time-bound period, whilst dispensing with procedural compliances of certain chapters and provisions of the said enactment. The civil appeals were accordingly allowed, setting aside the judgments of the High Court and acquisition of landowners’ lands under the Land Acquisition Act, 1894¹⁹⁷ were accordingly upheld. Comprehensive directions with respect to payment and disbursal of the compensation were also issued by the Supreme Court whilst allowing the appeals.

***

(15) K. Nirmala v. Canara Bank¹⁹⁸

(Delivered on 28-8-2024)

Coram: 2-Judge Bench of Justices Hima Kohli and Sandeep Mehta; JJ.

Majority Opinion Authored by: Justice Sandeep Mehta

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The batch of appeals arose out of the judgment of the Karnataka High Court, through which appointment orders were sought to be cancelled of various petitioners/appellants before the Supreme Court on the ground of their caste being rescheduled from the rest of Scheduled Caste/Scheduled Tribe by the State of Karnataka. The root question that arose for consideration before the Supreme Court was whether the person who joined the services of a nationalised bank/Government of India undertaking based on a caste identifying him/her as belonging to Scheduled Caste/Scheduled Tribe in the State of Karnataka pursuant to State Government’s notifications would be entitled to retain the position after the caste/tribe has been descheduled. The situation arose when the State redesignated certain castes under the list of Scheduled Caste/Scheduled Tribe in spite of the said scheme being vested with the Parliament under Articles 341 and 342¹⁹⁹ of the Constitution of India.

Background facts

Following the judgment of Constitution Bench of Supreme Court in State of Maharashtra v. Milind²⁰⁰, the Government of India declared various Circulars issued by the State of Karnataka including the Kotegara caste in the list of Supreme Courts as non est. Pertinently the Supreme Court in the aforesaid judgment of Milind case²⁰¹, held that the State Government does not possess any authority to amend or modify the Presidential list of Scheduled Castes and Scheduled Tribes published under Articles 341 and 342 of the Constitution of India. A caste can be classified as a Scheduled Caste or Scheduled Tribe only through a duly authorised order issued by the President or varied by the Parliament under Articles 341, 342 and 342-A²⁰² of the Constitution of India, otherwise not. Based on the aforesaid judgment, thus the Kotegara caste came to be descheduled which adversely affected a large number of individuals and employees, who were appointed to various posts based on the aforesaid circular of the State Government availing the advantage of Scheduled Castes and Scheduled Tribes. The caste certificates were cancelled by the competent authority, and the decision was communicated to the respective employers. Accordingly on the basis thereof show-cause notices came to be issued to various employees by the nationalised banks proposing their termination on the ground of having secured employment based on a fake caste certificate. The appellants were unsuccessful both before the Single as well as the Division Bench of the High Court which dismissed their writ petitions, against which appeals were filed before the Supreme Court.

The Government of Karnataka issued two circulars in the meanwhile, one on 11-3-2002 and the other on 29-3-2003 holding all such individuals to be treated as having been appointed under the general merit (GM) category and not being eligible for future promotions or any other benefits available to Scheduled Castes and Scheduled Tribes. In a way therefore the State Government protected the employment and appointment of all such employees who were appointed premised upon the usage of such caste certificates in accordance with the prevailing Government Circulars extending the said benefits.

The Court found certain facts to be undisputed qua the appointment of all the appellants, which were as follows:

(a) The appellants obtained their caste certificate under the Scheduled Caste category by following the due process of law as prescribed and prevailing at the relevant point of time from the competent authority of the State Government.

(b) When the caste certificates were issued, the synonymous caste as of the appellant was included in the list of Scheduled Castes by virtue of the circular issued by the Government of Karnataka, albeit by exercising powers unconstitutionally.

(c) All the appellants were covered by the twin Circulars of the Government of Karnataka dated 11-3-2002 and 29-3-2003 protecting the employment of all such individuals who had been benefited by these caste certificates obtained earlier, prior to the deschedulement of the caste.

(d) The Government Circulars were applicable to all the appellants otherwise, since the caste certificates were issued to all of them under the erroneous Government Circular/order.

Referring and relying upon the judgment of Milind case²⁰³, the Supreme Court held that even in the said judgment the admissions and appointments which had become final on the date of judgment were insulated from its adverse impact and the judgment was made prospective in nature. The appellants are therefore also entitled to protection of their services by equal applicability of the Government Circulars of 2002 and 2003, ratified later by the Ministry of Finance in August 2005. The Union of India also extended and reinforced the protective umbrella to the bank employees concerned, saving them from the departmental and criminal action, who had taken advantage of such erroneously issued caste certificates. The Court accordingly quashed show-cause notices holding them to be unsustainable and allowed all the appeals.

***

(16) Anjum Kadari v. Union of India²⁰⁴

(Delivered on 5-11-2024)

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

Majority Opinion Authored by: Justice Dr D.Y. Chandrachud

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The appeal arose out of the judgment of the Allahabad High Court, which declared the Uttar Pradesh Board of Madarsa Education Act, 2004 to be unconstitutional on the ground that it violated principles of “secularism”, Articles 14, 21-A²⁰⁵ and resultantly the basic structure of the Constitution of India. The High Court in fact struck down the entirety of the Uttar Pradesh Board of Madarsa Education Act, 2004.

Background facts and the history of the Uttar Pradesh Board of Madarsa Education Act, 2004

Tracing the history of pre-colonial Madrasas, the Court referred to evolution of Madrasa education during the rule of the Tughlaqs. However, with the advent of British rule, their relative importance as centres of higher learning and imparting of administrative, religious and cultural knowledge diminished with the passage of time. The colonial Government enacted the Education Code of 1908 for recognising and governing Madrasas in the State of Uttar Pradesh. Post independence, the Government of Uttar Pradesh issued the Madrasa Education Rules, 1969, bringing Madrasas under the domain of Education Department. The State Government enacted thereafter Uttar Pradesh Non-Government Arabic and Persian Madarsa Recognition Rules, 1987, whereunder comprehensive provisions with respect to grant of recognition and permission to Madrasas was provided. Referring to the data placed on record, it was stated that there are a total of 13,364 Madrasas with around 12.34 lakh students studying in them. The State Government also has an annual budget for State-aided Madrasas, along with provisions for books, mid-day meals, training, etc. for all these Madrasas. The certificates of Kamil (undergraduate degree) and Fazil (postgraduate degree) are though imparted by Madrasas but not recognised by State of Uttar Pradesh. They have not been given any equivalence by the Government for any higher degree/post-matric course.

In the above factual and legal backdrop, the State of Uttar Pradesh enacted the Uttar Pradesh Board of Madarsa Education Act, 2004, with effect from September 2004, as an Act providing for establishment of a Board of Madrasa in the State and for matters connected therewith and incidental thereto. The Court referred to various provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004, before analysing the High Court judgment, viz. Section 3 providing for the constitution of the Madrasa Board; Section 4 empowering the State for removal of members from the Board; Section 9 enunciating the functions of the Board, inter alia prescribing the Court’s material, granting degrees or diplomas, conducting examinations, conducting research and training and other such incidental functions; Section 32 empowering the State Government to make Rules for carrying out the purposes of the Uttar Pradesh Board of Madarsa Education Act, 2004, and such other multiple provisions.

After the enactment of the Uttar Pradesh Board of Madarsa Education Act, 2004, the Madrasa Board as well as the State Government in exercise of their powers took various steps of modernising education being imparted in Madrasas with the adoption of modern subjects in the curriculum and alterations in the existing curriculum to incorporate the National Council of Educational Research and Training curriculum. Subjects like Mathematics, Science, English, Hindi, etc. were all introduced in the syllabus to be taught as part of training; the medium of instruction was also introduced to be Urdu, Hindi or English as the case may be for subjects like Maths, Science, Social Science, etc. Certain compulsory subjects from Class 1 to secondary level were also directed by the State of Uttar Pradesh to be introduced in Madrasa education for the whole State.

Impugned judgment of the High Court

In 2019, a writ petition was instituted before the High Court by a part-time assistant teacher employed in one of the Madrasas, who sought regularisation of his services and salaries at par with regular teachers relying on various provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004. The Single Judge before whom the writ petition came for consideration referred the matter to the larger Bench for decision on various important constitutional questions going to the root of validity and constitutionality of the Uttar Pradesh Board of Madarsa Education Act, 2004. Accordingly, a Special Bench was constituted by the Chief Justice of the High Court for hearing the reference. The fundamental question/issue which was dealt into by the larger Bench was, “whether the provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004 are constitutional, standing the test of secularism as part of basic structure of the Constitution of India”.

Through its final judgment of March 2024, the Uttar Pradesh Board of Madarsa Education Act, 2004 was held to be violating the principles of “secularism”, Articles 14, 21 and 21-A of the Constitution of India and resultantly being unconstitutional. The State Government was directed to take necessary steps for accommodating all students studying in Madrasas in regular schools established by the State of Uttar Pradesh and if required for establishing new schools and increasing the intake of existing schools.

The State Government acting on the aforesaid directions of the High Court accordingly directed for closure of all those Madrasas which were not possessing any formal recognition. Committees were constituted at the district level for ensuring that students are duly shifted from Madrasas to proper Government schools. In this backdrop the special leave petition came to be preferred before the Supreme Court laying challenge to the aforesaid judgment of the High Court.

Secularism and regulation of minority educational institutions

The 42nd Amendment to the Constitution of India incorporated the expression “secular” in the Preamble, but however it simply made explicit what was implicit already in the Constitution of India within the constitutional context. Referring to the judgment of M. Ismail Faruqui v. Union of India²⁰⁶, the Court stated that “secularism” is one of the facets of the right to equality, as part of the equality code outlined under Articles 14, 15 and 16. The State is prohibited from mixing religion with any secular activity of the State vide the equality Code. However, at the same time it also imposes certain positive obligations on the State to provide equal treatment to all persons regardless of their religion, faith or beliefs. Referring to Articles 26 to 28, the Court held that every religious domination enjoys the fundamental right to establish and maintain institutions for religious and charitable purposes; it can own and acquire movable and immovable property and administer its property in accordance with law. The State can regulate the administration of such religious and charitable trusts established under Article 26, but however it cannot abridge or take away the same through any legislation, the same being a fundamental right. Article 28 “prohibits imparting of religious instructions” in any institution maintained out of State funds, nor can any person be compelled to take part in any religious instruction without their consent. However, Article 28 nowhere prohibits any institution from imparting religious education for making its children aware of thoughts and philosophies in religion, without indoctrinating them or without curbing their free thinking. An institution has a fundamental freedom to impart teaching about the philosophy and culture of a particular religion, or a saint associated with it, in addition to secular education. Article 30 stands on a slightly different footing permitting the minorities to establish and administer education institutions, be it religious or linguistic minority. The State is obligated not to discriminate against any institution in granting aid on the ground that it is managed by a minority and special rights are conferred on religious and linguistic minorities to instill in them a sense of security and confidence. The constitutional scheme therefore envisaged under Articles 25 to 30, distinguishes between the right of an individual to practice religion and the secular part of the religion, amenable to State regulation.

Basic structure as a test for constitutionality

The provisions referred to above indicate that “secularism” is embodied in the constitutional scheme, especially Part III of the Constitution of India. Referring to Kesavananda Bharati v. State of Kerala²⁰⁷, it was held that even Article 368²⁰⁸ does not enable Parliament to alter the basic structure or framework of the Constitution of India and that power to amend cannot imply the power to destroy or abrogate the basic framework of the Constitution. In S.R. Bommai v. Union of India²⁰⁹, a 9-Judge Bench held that “secularism” is a basic feature of the Constitution.

Answering the core issue as to whether the “basic structure doctrine” can be applied to invalidate any ordinary legislation, the Court held that any statute can be declared ultra vires only on two grounds, viz. it being beyond the ambit of the legislative competence or the same being violative of Part III or any other constitutional provision. Referring to the judgments of Indira Nehru Gandhi v. Raj Narain²¹⁰, State of Karnataka v. Union of India²¹¹ and Kuldip Nayar v. Union of India²¹², the Court reiterated the settled constitutional position that constitutional validity of any statute cannot be challenged for the violation of the “basic structure doctrine”. Any inference about a limitation based on the basic structure doctrine upon legislative power must be relatable to express provisions of the Constitution of India and not otherwise. Thus, in a challenge to the validity of a statute for violation of principles of “secularism”, it must be shown additionally that the statute simultaneously violates constitutional provisions pertaining to “secularism”.

Regulation of minority educational institutions and the Uttar Pradesh Board of Madarsa Education Act, 2004 being a regulatory legislation

The Court then proceeded to discuss the extent of the right of minorities to administer educational institutions and its reach and extent thereof. Referring to Kerala Education Bill, 1957, In re²¹³, the legal position was reiterated that State can always enact regulatory measures to promote efficiency and excellence of educational standards and regulations which do not impinge upon the management of minority educational institutions are always permissible. Aspects of the standards of education such as courses of study, qualification and appointment of teachers, health and hygiene of students, facilities for libraries can always be regulated as a precondition for grant of aid or recognition by the State. Referring to the judgments of P.A. Inamdar v. State of Maharashtra²¹⁴ and Ahmedabad St. Xavier’s College Society v. State of Gujarat²¹⁵, the Court stated that State regulations must satisfy the following three tests:

(a) it must be reasonable and rational;

(b) it must be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it; and

(c) it must be directed towards maintaining the excellence of education and efficiency of administration to prevent it from falling standards.

State has an inherent interest in maintaining the standards of education even in minority educational institutions. Affiliation or recognition of minority educational institutions by the Government secures the academic interest of students studying in such institutions to pursue higher education.

Scanning the “Statement of Objects and Reasons” along with various provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004, the Court thereafter held that the legislative scheme of the Uttar Pradesh Board of Madarsa Education Act, 2004 clearly suggests it to be a regulatory legislation enacted by the State for regulating the standard of education in Madrasas for imparting education. Till the time the State does not take over the management of such institutions by superseding or dissolving their management, the regulatory measures cannot be held to be violative of Article 30(1)²¹⁶ of the Constitution of India. Referring to the judgment of Bihar State Madarsa Education Board v. Madarasa Hanfia Arabic College²¹⁷, the Court held that a State has no power to frame Rules that amount to interference or controlling the management or constitution of such minority educational institutions. However, a statutory board constituted for regulating such minority educational institutions, granting recognition or affiliations to them is not obligated constitutionally to consist only of members belonging to the minority community. The Uttar Pradesh Board of Madarsa Education Act, 2004 under challenge allows the Statutory Board to prescribe curriculum and textbooks, conduct examinations, qualifications of teachers, etc. is clearly reasonable as it subserves the very object of recognition. The Uttar Pradesh Board of Madarsa Education Act, 2004 does not directly interfere with the day-to-day administration of the recognised Madrasa, but makes them “conducive to make the institution an effective vehicle of education for minority community”. Article 30 is an exposition of positive concept of “secularism”, requiring the State to take active steps to treat minority educational institutions at par with secular institutions while allowing them to retain their minority character. The concept of positive “secularism” finds consonance in the principles of substantive equality. The Uttar Pradesh Board of Madarsa Education Act, 2004 secures the interest of the minority community in State of Uttar Pradesh by regulating the standards of education imparted by the recognised Madrasas and is therefore consistent with the positive obligation of the State to ensure that students studying thereunder achieve a minimum level of competency. The Supreme Court thus found the High Court having erred whilst holding that Uttar Pradesh Board of Madarsa Education Act, 2004 violated the basic structure of the Constitution, in the absence of violation of any express constitutional provision.

Interplay of Articles 21-A and 30 of the Constitution of India

The Right of Children to Free and Compulsory Education Act, 2009 seeks to implement the spirit Article 21-A which obligates the State to provide free and compulsory education to all children of the age of 6 to 14 years. Referring to the judgment of Constitution Bench in Pramati Educational and Cultural Trust v. Union of India²¹⁸, the Court restated that any parliamentary law under Article 21-A cannot abrogate the right of minorities to establish and administer schools of their choice. The Right of Children to Free and Compulsory Education Act, 2009 was thus held to be not applicable to minority educational institutions. Though Article 30(1) guarantees the right to establish and administer minority educational institutions, however the State can always ensure that they impart secular education as well along with religious instructions and education. The conclusion of the High Court was therefore held to be erroneous in holding that the Uttar Pradesh Board of Madarsa Education Act, 2004 was violative of Article 21-A.

Legislative competence of the Uttar Pradesh Board of Madarsa Education Act, 2004 and limited repugnancy qua the University Grants Commission Act, 1956

The Court then proceeded to examine as to whether the Uttar Pradesh Board of Madarsa Education Act, 2004 is within or dehors the legislative competence of the State under Entry 25, List III. Tracing the constitutional history of “education” as a subject under the Schedule 7, the Court discussed that originally “education” was part of List II (the State List) following the scheme of distribution of powers under the Government of India Act, 1935. Under the Government of India Act, 1935²¹⁹ “education” was placed under the Provincial List, which was followed in the Constitution as it was originally enacted with Entry 11, List 2 providing for “education”. However, through the 42nd Amendment of January 1977, Entry 11 was omitted, whilst Entry 25 was amended to move “education” from the State List to the Concurrent List and modifying it to its current structure. List III being a Concurrent List, the usage of phrase “subject to” implies that in case of existence of a parliamentary legislation and overlap of the State legislation with the same, the former shall prevail over the latter. It was thus held that since the primary objective of Madrasas is “education”, even though they impart religious instructions, the act would not cease to fall outside the ambit of Entry 25, List III. The mere dissemination of religious instruction does not change the fundamental character of the institution which imparts “education” as a principal activity. Referring to the judgment of Constitution Bench in T.M.A. Pai Foundation v. State of Karnataka²²⁰, the Court held that regulation of minority educational institutions is assumed to fall within the ambit of Entry 25, List III always by the Supreme Court. Thus, the contention was repelled that the Uttar Pradesh Board of Madarsa Education Act, 2004 falls outside the ambit and scope of Entry 25, List III, leaving the State incompetent to legislate on the same.

However, the Court held at the same time that certain provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004 conflict with the University Grants Commission Act, 1956 enacted under Entry 66, List I. Referring to the Constitution Bench judgment of Mineral Area Development Authority v. SAIL²²¹, the Court interpreted the phrase “subject to” holding that it conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. Wherever the Constitution intends to displace or override the legislative powers of the States, it does so by using the specific terminology “subject to”. Since the University Grants Commission Act, 1956 is a parliamentary enactment, therefore by virtue of Entry 66, List I read with Entry 25, List III, it occupies entirely the field regarding the coordination and determination of standards in higher education. Therefore, State legislation which seeks to regulate higher education, to the extent it is in conflict with the University Grants Commission Act, 1956 falls beyond the legislative competence of the State legislature. Referring to Section 22 of the University Grants Commission Act, 1956 specifically, titled as “right to confer degrees”, the Court held that the right to confer or grant degrees is exclusively preserved for the entities prescribed under Section 22 of the University Grants Commission Act, 1956 by the Parliament. Therefore, to the said extent of conferment of degrees of the undergraduate and postgraduate courses, the provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004 (Fazil and Kamil degrees as mentioned supra) the Court held that to such an extent the Uttar Pradesh Board of Madarsa Education Act, 2004 is beyond the State’s legislative competence. The provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004 empowering the board to confer degrees of Fazil and Kamil conflict with powers of the University Grants Commission as enshrined under Section 22 of the parliamentary enactment. The State legislation cannot seek to regulate higher education in contravention of the provisions of the University Grants Commission Act, 1956. To the said extent, the provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004 were thus held to be repugnant to the parliamentary enactment and thus unconstitutional and unenforceable by the Court.

However, holding that “the baby should not be thrown out with the bath water”, the Court held that provisions pertaining to conferment of undergraduate and postgraduate degrees are severable and can be struck down without affecting the principal enactment. Referring to the judgment of R.M.D. Chamarbaugwalla v. Union of India²²², the Court reiterated the doctrine of severability, holding that whenever a statute is in part void, it will be enforced as regards the rest, then the invalid part must be severed from the valid part. The test to be applied is whether the legislature would have enacted the valid part of the statute had it known that the rest of the statute was invalid or unconstitutional. If both the invalid and valid parts are so distinct and separate that post striking out what is invalid, the valid part remains intact as a complete code, then the same would be upheld notwithstanding the unenforceable or the invalid part. Accordingly, the Court affirmed the constitutionality and validity of the Uttar Pradesh Board of Madarsa Education Act, 2004 but however struck down the provisions pertaining to conferment of degrees of undergraduate and postgraduate courses.

Conclusions

After undertaking the comprehensive discussion, the Court returned the following conclusions whilst partly allowing all the appeals:

(a) The Uttar Pradesh Board of Madarsa Education Act, 2004 regulates the standard of education in Madrasas recognised by the Board for imparting Madrasa education.

(b) The Uttar Pradesh Board of Madarsa Education Act, 2004 is consistent with the positive obligation of the State to ensure that students studying in recognised Madrasas attain a level of competency which will allow them to effectively participate in society and earn a living.

(c) Article 21-A and the Right of Children to Free and Compulsory Education Act, 2009 have to be read consistently with the right of religious and linguistic minorities to establish and administer educational institutions of their choice. The Board with the approval of the State Government can enact regulations to ensure that religious minority institutions impart secular education of a requisite standard without destroying their minority character.

(d) The Uttar Pradesh Board of Madarsa Education Act, 2004 is within the legislative competence of the State Legislature and traceable to Entry 25, List III. However, the provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004 which seek to regulate higher education degrees, such as Fazil and Kamil are unconstitutional as they are in conflict with the University Grants Commission Act, 1956, which has been enacted under Entry 66, List I.

***

(17) Manoj Tibrewal Akash, In re²²³

(Delivered on 6-11-2024)

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

Majority Opinion Authored by: Justice Dr D.Y. Chandrachud

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The suo motu proceedings were registered by the Supreme Court on a letter written by one Manoj Tibrewal, senior journalist complaining of unlawful demolition of his ancestral residential house and shop situated in District Maharajganj, Uttar Pradesh by the State authorities. A suo motu writ petition was registered as an Article 32 writ petition based on the said letter and the District Magistrate and Superintendent of Police, District Maharajganj were required to show cause. The District Magistrate stated that towards road widening from State highway to a National Highway, spanning from District Pilibhit to Padrauna, for road widening the demolition had been undertaken. The petitioner was found to be amongst several persons who had encroached upon the lands of National Highway 730 (NH-730), was directed to remove the encroachment, but failed to do so. However, towards road widening for the purposes of development of National Highway, the said demolition had become necessary of the encroached portion of the petitioner’s house. On 12-9-2019, the occupants of the house were required to remove all the belongings and within 24 hours on 30-9-2019, the encroachment was removed.

On a complaint being made to the National Human Rights Commission, an enquiry was convened and the National Human Rights Commission concluded that government agencies had acted in haste, without any prior written notice had proceeded to arbitrarily demolish the property of the petitioner. Finding the prima facie violation of the human rights of the petitioner and his family, recommendations were made by the National Human Rights Commission for payment of interim compensation; registration of a first information report against the responsible officers and, also a departmental punitive action against the errant officers. However, the recommendations of the National Human Rights Commission were challenged in a writ petition before the Allahabad High Court, which is pending consideration. Besides the National Human Rights Commission enquiry, the issue was also investigated by the Commissioner, Basti who in his investigation also found high handedness on the part of State authorities in the demolition of the house of the petitioner.

After examining the reply and justification offered by the State authorities, the Court found that there was no document to establish the original width of the State Highway, which was later notified as a National Highway. No enquiry or demarcation was ever carried out for earmarking the extent of encroachment by the petitioner, nor any written notice issued to him prior to the removal of the said encroachment. The land was not shown to have been acquired before the work of demolition was carried out and the State failed to disclose the following:

(a) the precise extent of the encroachment;

(b) the width of the existing road;

(c) the width of the notified highway; and

(d) the extent of the property of the petitioner which actually fell within the notified width.

The demolition was thus found by the Court to have been executed without following any due process or issuing a written notice seeking explanation from the petitioner by the State authorities. The demolition was thus not only high handed, but also without any authority of law. The allegation of the petitioner that demolition was a reprisal for a newspaper report which contained allegations of wrongdoing in relation to the construction of the road in question. Though such an allegation was not treated as credible by the Court, it definitely supplied background to the grievance of the petitioner. The Court accordingly held that justice through bulldozers is unknown to any civilised system of jurisprudence. There is a grave danger that if high handed and unlawful behaviour is permitted by the State, demolition of citizens’ properties will take place as a selective reprisal for extraneous reasons. Citizens’ voices cannot be throttled by a threat of destroying their properties and homesteads. Therefore, statutory safeguards must be strictly observed when they are provided in the legislation before proceeding to demolish any private property. Bulldozer justice if permitted, the constitutional recognition of right to property under Article 300-A would be reduced to a dead letter. The infraction of law must invite criminal sanction and officials of the State who carry out or sanction such unlawful action must be proceeded against both departmentally as well as criminally.

Accordingly, the Court issued guidelines for all the authorities to comply before acting in pursuance of any road widening project, which read as follows:

(a) ascertain the existing width of the road in terms of official records/maps;

(b) carry out a survey/demarcation to ascertain whether there is any encroachment on the existing road with reference to the existing records/maps;

(c) if an encroachment is found, issue a proper, written notice to the encroachers to remove the encroachment;

(d) in the event that the notice raises an objection regarding the correctness or the validity of the notice, decide the objection by a speaking order in due compliance with the principles of natural justice;

(e) if the objection is rejected, furnish reasonable notice to the person against whom adverse action is proposed and upon the failure of the person concerned to act, proceed in accordance with law, to remove the encroachment unless restrained by an order of the competent authority or Court; and

(f) if the existing width of road including the State land adjoining the road is not sufficient to accommodate the widening of the road, steps must be taken by the State to acquire the land in accordance with law before undertaking the road widening exercise.

The aforesaid guidelines were directed by the State or its instrumentalities to be followed in letter and spirit before undertaking any demolition.

Accordingly, since the entire process followed by the State was found to be high handed by the Supreme Court, the State was directed to make payment of punitive compensation of Rs 25 lakhs as an interim measure. The Chief Secretary of the Government of Uttar Pradesh was directed to have an enquiry conducted in the entire matter pertaining to the illegal demolition and proceed departmentally as well as institute criminal prosecution against the responsible officers. Suitable action including penal measure was directed against the individual officials to ensure their accountability to all who acted in violation of law. The Registrar (Judicial) was also directed to circulate the judgment to all the States and Union Territories for ensuring compliance with the directions issued regarding the procedure to be followed for the purposes of road widening in general. The writ petition was accordingly disposed of.