Landmark Constitutional Law Judgments 2024 by Supreme Court of India Part 3

This article is a round-up of all the landmark constitutional law judgments delivered and reported in the second half of 2024, inclusive of all the judgments that showcased consideration, interpretation, and evolution of important constitutional law principles. The judgments in Part III are as follows:

Abbreviations for various common terminologies in the judgments

Art. — Article	Assn. — Association
GoU.P. — Government of Uttar Pradesh	CB — Constitution Bench
COI — Constitution of India¹	CO — concurring
HC — High Court	LC — lower courts
SCBA — Supreme Court Bar Association	SC — Supreme Court
SL — State Legislature	UOI — Union of India
GoI Act — Government of India Act	SPA — Shimla Planning Area
RS — Rajya Sabha	Govt. — Government
SG — State Government	SOP — standard operating procedure
WP — writ petition	AP — Andhra Pradesh
FPI — foreign portfolio investments	PMLA — Prevention of Money-Laundering Act, 2002²
ONGC — Oil and Natural Gas Corporation	IOCL — Indian Oil Corporation Ltd.
VAT Act — Assam Value Added Tax Act, 2003³	Entry 48, List II — (for short, “E-48, L II”)
EC — Expert Committee	Sales Tax Act — Assam General Sales Tax Act, 1993⁴
Entry 54, List II — (for short, “E 54, L II”)	NGT — National Green Tribunal
DDP — Draft Development Plan	DDA — Delhi Development Authority
u/s — under Section	T&CP Act — H.P. Town and Country Planning Act, 1977⁵
SPA — Shimla Planning Area	w.e.f. — with effect from
FC Act — Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980⁶	SB — Single Bench
DB — Division Bench	NCL — Non-Creamy Layer
MAT — Maharashtra Administrative Tribunal	CPCB — Central Pollution Control Board
MoEFCC — Ministry of Environment, Forests and Climate Change	SPCB — State Pollution Control Board
GoI — Government of India	CG — Central Government
SEIAA — State Environment Impact Assessment Authorities	CEC — Central Empowered Committee
OBC — Other Backward Classes	SoGA — Sale of Goods Act, 1930⁷
JB — Judge Bench	DCRC — District Consumer Redressal Commission
SCDRC — State Consumer Dispute Redressal Commission	UT — Union Territory
CHB — Chandigarh Housing Board	Sec. — Section
PO — Presiding Officer	ACA — Air Corporations (Transfer of Undertakings) Act, 1954⁸
1926 Act — Bar Councils Act, 1926 ⁹	AIB — All India Bar
Advocates Act — Advocates Act, 1961¹⁰	AIL — Air India Ltd.
AIBC — All India Bar Committee	AWES — Army Welfare Education Society
BALCO — Bharat Aluminium Co. Ltd.	BC — Backward Classes
BCA, 1993 — National Commission for Backward Classes Act, 1993¹¹	BCD — Bar Council of Delhi
BCI — Bar Council of India	BCUP — Bar Council of U.P.
BEGBT — Bengal Engineering Group Benevolent Trust	BEGC — Bengal Engineer Group and Centre
BSC — Bihar State Commission	CO — concurring opinion
Co. — Company	CPC — Civil Procedure Code, 1908¹²
Commr. — Commissioner	CrPC — Criminal Procedure Code, 1973¹³
CPDR — Committee for Protection of Democratic Rights	Danial Latifi judgment — Danial Latifi v. Union of India¹⁴
CRPF — Central Reserve Police Force	DPSP — Directive Principles of State Policy
DO — Debarment Order	E-5, L-II — Entry 5, List II
DSPE Act — Delhi Special Police Establishment Act, 1946¹⁵	E-0, L-0 — Entry 0, List 0
E-80, L-1 — Entry 80, List 1	EWS — Economically Weaker Sections
EBC — Extremely Backward Classes	LG — Lieutenant Governor
GNCTD — Government of National Capital Territory of Delhi	IDA — Indore Development Authority
IBSG — Institute of Brothers of St. Gabriel	IPC — Penal Code, 1860¹⁶
IO — investigating officer	KMC — Kolkata Municipal Corporation
J&K — Jammu and Kashmir	LA — Land Acquisition
JCP — Joint Committee of Parliament	Ltd. — Limited
KMC Act — Kolkata Municipal Corporation Act, 1980¹⁷	Madarsa Act — Uttar Pradesh Board of Madarsa Education Act, 2004¹⁸
LP Act — Legal Practitioners Act, 1879¹⁹	NCB — Narcotics Control Bureau
MADA — Mineral Area Development Authority	NHRC — National Human Rights Commission
MEIs — Minority Educational Institutions	NOC — no-objection certificate
NDPS ACT — Narcotic Drugs and Psychotropic Substances Act, 1985²⁰	Or. 7 R. 11 — Order 7 Rule 11
NIA — National Investigation Agency	PG — postgraduate
Or. 16 R. 6 — Order 16 Rule 6	PSU — Public Sector Unit
PC Act — Prevention of Corruption Act, 1988²¹	RS — Rajya Sabha
PMC judgment — Pune Municipal Corpn. v. Harakchand Misirimal Solanki²²	SCN — show-cause notice
Reliance Industries judgment — Kalpana Yogesh Dhagat v. Reliance Industries Ltd.²³	SMA — Special Marriage Act, 1954²⁴
Shah Bano judgment — Mohd. Ahmed Khan v. Shah Bano Begum²⁵	SOM — State of Maharashtra
SLP — special leave petition	SOU.P. — State of Uttar Pradesh
SOB — State of Bihar	SPF — Special Police Force
SOR — State of Rajasthan	1986 Act — Muslim Women (Protection of Rights on Divorce) Act, 1986²⁶
SOWB — State of West Bengal	2019 Act — Muslim Women (Protection of Rights on Marriage) Act, 2019²⁷
TC — trial court	UGC Act — University Grants Commission Act, 1956²⁸
2013 Act — Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013²⁹	SBC — State Bar Council
RTE Act — Right of Children to Free and Compulsory Education Act, 2009³⁰	UG — undergraduate
SOT.N. — State of Tamil Nadu	U.P. — Uttar Pradesh
UAPA Act — Unlawful Activities (Prevention) Act, 1967³¹	X — Appellant
MB — Medical Board	w.r.t. — with respect to
ME- Medical Examination	RMP — Registered Medical Practitioners
MTP Act — Medical Termination of Pregnancy Act, 1971³²	DJ — District Judge
SOG — State of Gujarat	AIJA case — All India Judges’ Assn. (3) v. Union of India³³
CJ — Civil Judge	NJPC — National Judicial Pay Commission
% — percentage	MOLJ — Ministry of Law & Justice
The 2011 Guidelines — Anganwadi Sevika & Sahayika Guidelines, 2011³⁴	CJI — Chief Justice of India
Delhi HC — Delhi High Court	Third Judges case — Special Reference No. 1 of 1998, In re³⁵
Second Judges case — Supreme Court Advocates-on-Record Assn. v. Union of India³⁶	MCR, 2016 — Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016³⁷
PT warrant — prisoner transit warrant	r/w — read with
MCDR, 2017 — Mineral Conservation and Development Rules, 2017³⁸	IBM — Indian Bureau of Mines
MMDR Act — Mines and Minerals (Development and Regulation) Act, 1957³⁹	DMF Rules — Mines and Minerals (Contribution to District Mineral Foundation) Rules, 2015⁴⁰
DMF — District Mineral Foundation	SOMP — State of Madhya Pradesh
NMET — National Mineral Exploration Trust	VAO — Village Administrative Officer
SC Order, 1964 — The Constitution (Puducherry) Scheduled Castes Order, 1964⁴¹	PwD — Persons with Disabilities
DAB — Disability Assessment Board	DNTs — Denotified Tribes
RPwD ACT — Rights of Persons with Disabilities Act, 2016⁴²	CTA — Criminal Tribes Act, 1871⁴³
COFEPOSA — Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974⁴⁴	Model Act — Model Prisons and Correctional Services Act, 2023⁴⁵
2016 Manual — Model Prison Manual, 2016	SLSA — State Legal Services Authority
DLSA — District Legal Services Authority	DPSPs — Directive Principles of State Policies
NALSA — National Legal Services Authority	GoAP — Government of Andhra Pradesh

The judgments are as follows:

(1) Anjum Ara v. State of Bihar⁴⁶

(Delivered on 8-1-2024)

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

Authored by: B.R Gavai, J.

The appellant was disqualified from being appointed as Anganwadi worker on the ground that her father was a Panchayat Teacher, drawing a salary of Rs 6000 per month. In view of Clause 4.9 of the Anganwadi Sevika & Sahayika Guidelines, 2011 (“the 2011 Guidelines”) which imposed certain conditions. These were found to be unconstitutional and accordingly struck down earlier by the High Court itself. The only ground on which the petition of the appellant came to be dismissed by the Division Bench was that the appellant did not challenge the said Clause 4.9 specifically in the writ petition, without which the consequential order of disqualification was unsustainable.

The Supreme Court held that since the High Court through its earlier judgments had already struck down Clause 4.9 of the 2011 Guidelines, it ceased to exist. Therefore, it was not necessary for the appellant to challenge the validity of the same provision again, once it was already invalidated by the very same High Court. The judgments and orders passed by the High Court (both Single as well as Division Bench) were accordingly held to be unsustainable. The writ petition filed by the appellant was allowed by setting aside the disqualification order and appellant was directed to be reinstated forthwith with all the benefits arising out of continuity in service of the said employment.

***

(2) Bloomberg Television Production Services India (P) Ltd. v. Zee Entertainment Enterprises Ltd.⁴⁷

(Delivered on 22-3-2024)

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

Authored by: Dr D.Y. Chandrachud, J.

The appeal to Supreme Court travelled against the interim order passed by Additional District Judge (ADJ) Court (Saket), New Delhi directing a media platform (the appellants) to immediately bring down an article published on their online platform, as also restraining them from posting, circulating or publishing the said article on any other online/offline platform till the next date of hearing. The ground of appeal was that the order was passed mechanically, without recording any substantial reasoning on merits, but only referring to two-three judgments of the Supreme Court and holding that a prima facie case was made out. The said order of the trial court was affirmed by the Single Judge of the Delhi High Court.

The Court in appeal held that the threefold test of establishing a case for interim injunction/relief is well-established, viz: (i) a prima facie case; (ii) balance of convenience; and (iii) irreparable loss or harm. However, the said threefold test must not be applied mechanically, to the detriment of the other party, more so when it is against journalistic pieces often to the detriment of the public. The Court must provide detailed reasons and analysis of how the threefold test is satisfied. Referring to the judgment of Morgan Stanley Mutual Fund v. Kartick Das⁴⁸, the Court referred to various factors which must weigh in for grant of ex parte injunction, to be granted in exceptional circumstances. Some of them inter alia being the plaintiff should not have acquiesce, but must have approached the Court with immediate dispatch and utmost good faith whilst making the application; the refusal of ex parte injunction would invite greater injustice than the grant of it.

Referring to test of “Bonnard standard” laid down in Bonnard v. Perryman⁴⁹ by the Court of Appeal (England and Wales), the Court reiterated that in suits concerning defamation by media platforms/journalists an additional consideration of balancing the fundamental right to free speech with the right to reputation and privacy must be borne in mind. The constitutional mandate of protecting journalistic expression cannot be understated and courts must tread cautiously while granting pre-trial interim injunction. Unless an alleged libel is untrue, there is no wrong committed, nor it can be said that any right at all has been infringed. The importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the prayer for grant of interim injunctions.

Referring further to the judgments of Fraser v. Evans⁵⁰, the Court stated that whenever the defendant says he intends to justify the subject-matter published in the media or make fair comment on the same, then it is for the jury and not for the Judge to decide the truth should come out in such cases. The grant of pre-trial injunction against publication of any article has severe ramifications on the right to freedom of speech of the author and the public’s right to know under Article 19(1)(a)⁵¹ of the Constitution of India. Any injunction particularly ex parte should not be granted without establishing that the content sought to be established is malicious or palpably false in a cavalier manner, as it results in stifling of public debate and opinion. The Court held that the grant of an interim injunction, before the trial commences, often acts as a “death sentence” to the material sought to be published, well before the allegations have been proven. The potential of using prolonged litigation to prevent free speech and public participation must also be kept in mind by the courts.

It was found that the order of the trial Judge in the present case granting ex parte injunction did not discuss even cursorily the prima facie strength of the plaintiff’s case, nor analysed why such an ex parte injunction on merits was essential in exceptional circumstances borne out from the record. Usually, the appellate courts do not interfere with the grant of interim relief/injunctions, however the courts must interfere in the orders of grant of injunction if the discretion has been exercised “arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions”. It was thus held that grant of an ex parte interim injunction in the present case through an unreasoned order definitely falls within the above formulation necessitating interference by the High Court. The threefold test cannot merely be recorded as a mantra without looking into the facts on the basis on which an injunction has been sought.

Accordingly, the Court allowed the appeal, setting aside the order of the trial Judge directing it to decide the said application for grant of ex parte injunction/interim relief afresh in light of the observations and directions contained in the judgment.

***

(3) A v. State of Maharashtra⁵²

(Delivered on 29-4-2024)

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

Authored by: Dr D.Y. Chandrachud, J.

Appeal emanated from the Bombay High Court, which denied permission to terminate her pregnancy to the minor daughter of the appellant (“X”). X was sexually assaulted, out of which she developed pregnancy, which was revealed to her parents when the said pregnancy was already about 25 weeks and being a minor child, the pregnancy could not have been assessed earlier. After the Medical examination , it was opined by the Medical Board (“MB”) that X was physically and mentally fit for termination of her pregnancy subject to permission of the High Court. Accordingly, Article 226⁵³ petition was moved before the High Court seeking termination of her pregnancy. The MB issued clarificatory opinion subsequently without re-examining X and denied termination of pregnancy on the ground that gestational age of the fetus was 27-28 weeks and thus it was not advisable to terminate at such a belated stage.

The Bombay High Court accepting the clarificatory opinion of the MB dismissed the petition, against which the matter reached the corridors of the Supreme Court. A fresh MB was directed to be constituted under Lokmanya Tilak Municipal Medical College, Mumbai, which MB gave an opinion that pregnancy could be terminated however with a degree of risk not higher than if the pregnancy was taken to term.

The Supreme Court accordingly on 22-4-2024 pronounced⁵⁴ its operative order to set aside the judgment of the High Court⁵⁵ of Judicature at Bombay, allowing X to terminate her pregnancy forthwith, whilst postponing the pronouncement of detailed judgment with reasons to be delivered separately at a later stage. However, interestingly when the termination of pregnancy was due to happen, the parents of the minor chose not to press ahead with its termination, for various reasons and accordingly an earlier order of the Court dated 22-4-2024⁵⁶ was recalled.

In the given facts and circumstances, the Court framed two issues for its consideration to be answered affirmatively for litigation arising in posterity:

(a) firstly, common opinion of the MB constituted under the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) and what it must reflect and be considerate of; and

(b) secondly, statutory scheme of the MTP Act and recognition of reproductive right of any pregnant person giving primacy to their consent.

Role of the Registered Medical Practitioners and Medical Board under the MTP Act

Referring to the judgment of X2 v. State (NCT of Delhi)⁵⁷, it was echoed that Registered Medical Practitioners ( “RMP”) are extremely apprehensive of criminal prosecution whilst taking decisions on termination of pregnancy by pregnant persons, which obviates access to safe and legal abortions. The opinion of RMP has a vital role to play insofar as it is aimed at protecting the health of the pregnant person and facilitate safe, hygienic and legal abortion. The right to abortion is a concomitant right of dignity, autonomy and reproductive choice, guaranteed under Article 21⁵⁸ of the Constitution of India. Thus, the fundamental right of any pregnant person is not compromised for reasons other than to protect physical and mental health of hers. Section 3(1)⁵⁹ of the MTP Act protects RMPs from criminal prosecution if their opinion is given in good faith regarding termination of any pregnancy. The same protection and immunity apply to MB constituted under Sections 3(2-C)⁶⁰ and (2-D)⁶¹ of the MTP Act. The law stands settled by the Supreme Court already that RMP or MB cannot be prosecuted for any act done by them in good faith. In the present case it was found by the Court that Government Medical College, Mumbai had prepared the subsequent clarificatory report/opinion on 3-4-2024 without re-examining X. The clarificatory opinion also did not elaborate on the change in circumstances that prompted the MB to renege and resign from its earlier stand of permitting termination of pregnancy. Referring to the Statement of Objects and Reasons⁶² of the MTP Act, it was held that health of the women carrying a fetus is paramount and disallowing termination does not stop abortions, it only stops unsafe and accessible abortions. Referring to the judgment of XYZ v. State of Gujarat ⁶³, the Supreme Court held that MB or the High Court cannot refuse abortion permission merely on the ground that the gestational age of the fetus is above the statutory prescription. Where pregnancy is detrimental to physical and mental health of any pregnant person, therefore a MB must always examine the pregnant person and opine on the aspect of risk to their physical and mental health. The Court found Section 3(2-B)⁶⁴ to be constitutionally suspect as it was not based on scientific parameters, but rather on notions. The provision was found to be unreasonably altering the autonomy of a person by classifying a substantially abnormal fetus differently than instances such as incest or rape. The opinion of the pregnant person must always be given primacy in evaluating the foreseeable environment of the person under Section 3⁶⁵ of the MTP Act. In the present case, the MB had failed to opine on the actual physical and mental health of the person by furnishing full details to the Court, in view of which, the MB evaluating any pregnant person with a gestational age above 24 weeks must always specifically opined on the physical and mental health of the person/female by furnishing full details to the Court and not otherwise.

Primacy of the pregnant person’s consent in abortion

The MTP Act was interpreted to hold that it does not interfere with the personal choice of a pregnant person of proceeding with the termination of pregnancy. The whole jurisprudence around abortion developed by the courts leave no scope for interference by the family or even the partners of a pregnant person in the matters of reproductive choice. Therefore, the role of RMPs and MB must always be in sync with the right and reproductive choice of the pregnant lady, or freely exercising their choice. Referring to the judgment of Suchita Srivastava v. Chandigarh Admn.⁶⁶, the Court reiterated that the right to make reproductive choices is a facet of Article 21

⁶⁷ of the Constitution and stands on a firm footing as an intrinsic element of the fundamental rights to privacy, dignity and bodily integrity. Even the State cannot speak on behalf of a pregnant person or usurp her consent. The choice to continue pregnancy to term regardless of the Court having allowed termination of the pregnancy belongs to the individual alone. Therefore, wherever the opinion of any minor pregnant person differs from the guardian covered by Section 3(4)(a)⁶⁸ of the MTP Act, the Court must regard the opinion/view of the pregnant person as a cardinal factor while deciding upon the question of termination of pregnancy.

Accordingly, the Court on the facts and issues raised before it returned its following conclusions:

(a) the MTP Act protects the RMP and the MB whenever they form an opinion in good faith as to the termination of pregnancy;

(b) the MB in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) of the MTP Act, but also evaluate the physical and emotional well-being of the pregnant person in terms of the judgment;

(c) when issuing a clarificatory opinion the MB must provide sound and cogent reasons for any change in opinion and circumstances; and

(d) the consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the Court to arrive to a just conclusion.

***

(4) Abhimeet Sinha v. High Court of Patna⁶⁹

(Delivered on 6-5-2024)

Coram: 2-Judge Bench of Hrishikesh Roy and Prashant Kumar Mishra, JJ.

Authored by: Hrishikesh Roy, J.

The issue that arose before the Supreme Court related to recruitment and selection process of judicial officers to the posts of District Judge ( “DJ”) and Civil Judge (“CJ”) in the States of Bihar and Gujarat respectively. Whether prescribing minimum qualifying marks for viva voce is in contravention of the law laid down by this Court in All India Judges’ Assn. (3) v. Union of India⁷⁰, (“AIJA case”), which accepted certain recommendations of the Justice Shetty Commission.

Facts

Challenge was made to Clause 11 of Appendix C of the Bihar Superior Judicial (Amendment) Rules, 2013⁷¹ and Rule 8(3) of the Gujarat State Judicial Service Rules, 2005⁷², amended through notification of June 2011, wherein the following changes were introduced qua the selection of the judicial officers:

(a) in Bihar, at least 10 out of total 50 marks (20%) were made compulsory as the minimum cut-off for qualifying the interview separately in addition to obtaining the minimum marks in the written test; and

(b) likewise in Gujarat 40% minimum marks were required for qualifying the interview out of 100 marks.

There were other contentions also, but however the Court confined itself essentially to the legality and validity of prescription of minimum cut-off marks for qualifying the interview process for recruitment to the Patna and Gujarat High Courts respectively.

Preliminary objections relating to maintainability

The counsels appearing for the High Court took a preliminary objection on the maintainability of the writ petition contending that having one’s participated in the recruitment process and being unsuccessful, the candidates could not turn around and question the reality and validity of the same as they are estopped from doing so by application of doctrine of waiver.

However, the preliminary objection was repelled by the Court holding that principal of estoppel cannot override the law and merely because a candidate has participated in a recruitment process, it cannot be said that he loses locus standi to assail the incurable legality or derogation of constitutional provisions, as unless he/she participates in selection process he would not assume the locus to raise a challenge to the same. Referring to the judgment of Meeta Sahai v. State of Bihar⁷³, it was stated that, candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegalities inherent in it. Accordingly, the challenge to maintainability was repealed by the Court.

Genesis of the Shetty Commission

The Court then traced the history of genesis of the Shetty Commission, wherein the Supreme Court has directed States and Union Territories to separately examine and review the pay structure of posts of judicial officers at the district level and for the High Court judiciary. The First National Judicial Pay Commission (“NJPC”) came to be appointed by the Union of India in March 1996 under the Chairmanship of K.J. Shetty, J., which had submitted various reports from time-to-time on references made to it. The terms of reference however focused essentially on formulation of pay structure and emoluments of the judicial officers, while suggestions were also made on “method and qualifications for recruitment”. The Commission found that accepting viva voce at the sole selection mode could lead to arbitrariness.

However the Court noted that Shetty Commission had made other recommendations also which had been implemented and accepted by the High Courts across the country, viz. relating to high cut-off marks for the written examination (not below 60%), but the High Court chose not to implement the same if such a recommendation is implemented by the High Court, then majority of the candidates including many petitioners would be thrown out of the selection process itself, on the ground of eligibility. The writ petitions therefore cannot be permitted to argue for selective implementation of the Shetty Commission recommendation for doing away with the cut-off marks in the viva voce segment but not implementing the same with respect to the written examination.

Legality of minimum cut-off marks of viva voce

Referring to the observations and directions in AIJA case⁷⁴, the Court held that the said judgment stressed upon the importance of an objective standards for the recruitment through a written and viva voce examination. There is no direct discussion on the aspect of the viva voce except the remark regarding objective method of testing suitability of aspirants and candidates. The issue as to whether there should be minimum qualifying marks for viva voce never engaged the Court’s attention, nor the Shetty Commission ever provide any specific reasoning as to why there should be no minimum marks for viva voce. Referring to the judgment of Kavita Kamboj v. High Court of Punjab & Haryana⁷⁵, the Court stated that AIJA case⁷⁶ never made any observation about desirability or otherwise of minimum cut-off generally qua the viva voce competent of the examination system. Thus, AIJA case⁷⁷ is sub silentio on the aspect of minimum marks for interview and cannot be treated to have authoritatively pronounced on dispensing with minimum cut-off marks in the interview segment.

Inconsistency of recruitment rules vis-à-vis recommendations of Shetty Commission

The Court then undertook comprehensive reference to various precedents where the Supreme Court had an occasion to interpret the recommendations of the Shetty Commission in situations where recruitment rules framed by the respective High Courts were inconsistent with the recommendations. Referring to the judgments of Syed T.A. Naqshbandi v. State of J&K⁷⁸, Rakhi Ray v. High Court of Delhi⁷⁹ and Mahinder Kumar v. High Court of M.P.⁸⁰, it was stated that conditions of service of members of any service are governed by statutory rules and orders lawfully made. Thus, it would be futile for anyone to claim for overriding those existing rules/orders on the anvil of certain policy decisions or any recommendations so made by any Commission. It was held that recommendations to the Commission, even if accepted by the Court were required to be incorporated in the statutory rules governing the service conditions of the judicial officers. In the absence of any statutory rule on any issue, the High Courts must give effect to the decisions of the Supreme Court. The recommendations of the Shetty Commission can at the highest be considered a guideline and that the power of the High Courts to evolve their own procedure for selection of judicial officers is not taken away. The Shetty Commission itself mentioned that recommendations made by it were always subject to the prescription of rules by the High Courts. Thus, it was held that the High Court cannot act contrary to the statutory rules framed by it and recommendations of the Shetty Commission have to be seen in the context of the rules governing recruitment of judicial officers. It cannot be said that by virtue of the decision in AIJA case⁸¹ adequate elbow room was not available to prescribe qualifying marks in the interview segment for ensuring the selection of the best possible person the prescription of minimum marks was thus not found by the Court to be in contravention of the judgment in AIJA case⁸².

Whether prescription of minimum marks for viva voce violates Articles 14 and 16 of the Constitution of India

It was contended by the writ petitioners that prescription of minimum marks for viva voce is violative of Articles 14⁸³ and 16⁸⁴ of the Constitution of India being manifestly arbitrary. The Court rejecting the said contention relied upon the judgments of Lila Dhar v. State of Rajasthan⁸⁵ and Taniya Malik v. High Court of Delhi⁸⁶, wherein it was held that describing minimum marks for interview is not only desirable, but also necessary. The purpose of interview for judicial officers is to assess them in terms of their ability to meet the duties required for performing the role of an Additional District and Sessions Judge. The recruitment procedure should not only test the candidates’ intellect but also their personality for appointment to posts in the higher judiciary. Referring to the judgment of Ajay Hasia v. Khalid Mujib Sehravardi⁸⁷, it was stated that can be resorted to only as an additional or supplementary test. Thus, it was held that oral interviews play an important role for testing the personality and calibre of the aspirant for the judicial post. Referring further to the judgment of B.K. Pavitra v. Union of India⁸⁸ it was stated that high marks in the written test cannot by itself be considered being falling in the “meritorious category”. High scores for the written test by itself do not determine merit and suitability of an aspirant, but also on the social, economic and cultural capital of the candidate concerned. There are various other vital factors, which also manifestly contribute to the performance in the written test. Reliance on competitive exams or written tests as a sole determinant of merit is increasingly being frowned upon. Conversely, candidates of marginalised communities may face challenges due to their lack of exposure to urban settings and may not fare well in the written examination. Therefore, Interview Boards constituted by the High Court Judges are able to separate the grain from the chaff and provide a level playing field during the interview process for those who come from a disadvantaged background, to assess the true merit and potential of the interviewees. The effort is not only to test the candidate’s intellect, but also their personality, passion and potential; interview reveals character and capability to preside in Court to adjudicate adversarial litigation.

Impact of non-consultation with the PSC under Article 234 of the Constitution of India on the recruitment rules

The Court then examined the issue of impact of non-consultation of Public Service Commission (“PSC”) over amendment of the Gujarat State Judicial Service Rules, 2005 (Gujarat Rules, 2005) on their validity. Pertinently PSCs to be consulted under Article 234⁸⁹ of the Constitution of India, whereunder the recruitment rules are to be framed after consultation with the State PSC by the State Government. Referring to the judgment of State of Bihar v. Bal Mukund Sah⁹⁰, Court held that there is a fine distinction in the nature of consultation between the PSC and the High Court. Consultation keeping in view the role of the High Court under Article 234 ⁹¹r/w Article 235⁹² (Control over Subordinate Courts), stands on entirely different footing as compared to consultation with the PSC which has to discharge its function of an entirely different type as envisaged by Article 320⁹³ of the Constitution of India. The consultation with the High Court is to preserve the Constitution mandate of the independence of the judiciary, which in turns form the part of the basic structure of the Constitution of India whereas the PSC is endowed with different periphery of functions. Rules framed without consultation with the High Court would be void, but however they may not be so when PSC is not consulted. Referring to the letter written by the Secretary of the Gujarat PSC, the Court stated that since the PSC itself tried to keep away from the process of enactment of recruitment rules, therefore there is all the more reason to infer that Governor is under no compulsion to consult PSC in case the Commission does not wish to be consulted. It was further stated that such a fact of non-consultation with the PSC does not provide any cause of action to the petitioner or any of the members of the petitioner but is a matter between the State and the PSC. Thus, there is no authoritative finding holding that consultation with the PSC is “mandatory” under Article 234⁹⁴.

The Court in its closing remarks issued various directions and returned the following conclusions:

(a) The prescription of minimum qualifying marks for interview is permissible and this is not in violation of AIJA case⁹⁵ which accepted certain recommendations of the Shetty Commission.

(b) The validity challenge to Clause 11 of the Bihar Rules, 1951⁹⁶ and Rule 8(3) of the Gujarat Rules, 2005 (as amended in 2011⁹⁷) prescribing minimum marks for interview are repealed.

(d) The non-consultation with the PSC would not render the Gujarat Rules, 2005 (as amended in 2011) void.

The writ petitions were accordingly dismissed without any order as to costs.

***

(5) Amanatullah Khan v. Commr. of Police⁹⁸

(Delivered on 7-5-2024)

Coram: 2-Judge Bench of Surya Kant and K.V. Viswanathan, JJ.

Authored by: Surya Kant, J.

The issue before the Supreme Court related to quashing of the history-sheet opened against the petitioner and the proposal of declaring him as of “bad character”. The Single Judge dismissed the writ petition against which the matter travelled to the Supreme Court. The Supreme Court was concerned with parts of history-sheet wherein school going minor children of the appellant and his wife against whom apparently there was no adverse material, were included in the history-sheet. This happened because of the format of the history-sheet provided vide Rules 23.8 and 23.9 of the Punjab Police Rules, 1934⁹⁹ as were applicable in the NCT of Delhi. The question therefore arose as to whether inclusion of names of innocent family members of any suspect in the history-sheet is violative of their dignity, self-respect and privacy.

Accordingly, the Senior Counsel representing the Delhi Police placed on record the amended Standing Order (“SO”), wherein automatic inclusion of innocent family members having nothing to do with the activities or offences of the suspect history-sheeter were not to be included. The space for “relations and connections” in the history-sheet under the amended SO is reflective of identities of those persons, who afforded him shelter, when the offender was absconding/running/wanted by the police as also his associates in crime, abettors and receivers of the fruits of crime. No details of any minor relatives i.e. son, daughter, siblings to be recorded anywhere in the history-sheet. The particular nature of each person’s connection under the amended SO was also mandatorily directed to be disclosed. The amended SO is emphatically clear that no details of any minor relatives i.e. son, daughter, siblings shall be recorded anywhere in the history-sheet unless there is evidence that such minor has or earlier had afforded shelter to the offender.

The Court also directed the Commissioner of Police (“CP”), Delhi for deputing a senior police officer for periodically auditing/reviewing the contents of the history-sheets and for ensuring confidentiality and a leeway to delete the names of such persons/juvenile/children who are in the course of investigation found innocent or entitled to be expunged from the category of “relations and corrections” in any history-sheet.

In exercise of suo motu powers, the police authorities in other States and Union Territories were also directed by the Court to consider the desirability of ensuring that no mechanical entries in history-sheet are made of innocent individuals or minors related to the suspect accused.

The Court also referred to history-sheets and police diaries being maintained selectively of individuals belonging to socially, economically and educationally disadvantaged communities in many States, prepared and based solely on caste bias. The State Governments were therefore directed to take necessary preventive measures to safeguard such communities from being subjected to inexcusable targeting or prejudicial treatment. Interpreting Article 21¹⁰⁰ and the right to live with human dignity encompassed thereunder, it was directed that such an identity/community-based selective preparation and maintenance of police diaries is violative of Article 21 of all the individuals belonging to those communities. The Registry was accordingly directed to forward a copy of the judgment to all the States and Union Territories for ensuring compliance order directions issued in the judgment.

***

(6) Chirag Bhanu Singh v. High Court of H.P.¹⁰¹

(Delivered on 6-9-2024)

Coram: 2-Judge Bench of Hrishikesh Roy and Prashant Kumar Mishra, JJ.

Authored by: Hrishikesh Roy, J.

The writ petition under Article 32¹⁰² of the Constitution of India was filed by two seniormost District and Sessions Judges serving in the State of Himachal Pradesh. The petitioners prayed for calling for the minutes of meeting of the Collegium whereby names of junior judicial officers to the petitioner had been recommended for elevation as High Court Judges ignoring the directions of reconsideration given by the Supreme Court Collegium; prayer was also made for direction to the Himachal Pradesh High Court to consider the names of the petitioners as directed by the Supreme Court Collegium, vide its Resolution dated 4-1-2024.

Necessary facts

The petitioners, both Higher Judicial Service (HJS) officers were recommended by the erstwhile Collegium of the High Court in December 2022 for elevation as Judges of the High Court, which recommendation however was deferred initially and thereafter on 4-1-2024, the Supreme Court Collegium resolved that proposal for elevation of both the Judges be remitted for reconsideration to the Chief Justice of the Himachal Pradesh High Court.

A request was also made by the Ministry of Law & Justice (“MOLJ”) in reference to the Collegium Resolution for sending fresh recommendation for both the officers against the available service quota vacancies of the High Court. The grievance of the petitioners arose when the High Court Collegium without first considering the two petitioners in terms of the Supreme Court Collegium Resolution dated 4-1-2024 recommended two other judicial officers for elevation ignoring their seniority and long-standing unblemished service.

Issues

The Court framed two issues for its consideration:

(a) Whether the writ petition is maintainable?

(b) Whether elevation for Judgeship in the High Court has to be considered collectively by the High Court Collegium or whether the Chief Justice acting individually can reconsider the same?

Maintainability of the writ petition

Answering the preliminary objection to the maintainability of the writ petition, the Court referring to the Constitution Bench judgment of the Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union of India¹⁰³ ( “Second Judges case”), stated that scope of judicial review in appointment of Judges is limited as it introduces the judicial element in the process. Judicial review is not warranted apart from some exceptions such as want of consultation amongst the named constitutional functionaries. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility, in the case of an appointment or of a transfer being made without the recommendation of the Chief Justice of India ( “CJI”), scope of judicial review is not at all available in matters of judicial appointment and transfer. Referring further to the judgment of Special Reference No. 1 of 1998, In re¹⁰⁴ (“Third Judges case”), it was stated that if in making the decision, if views of the senior most Supreme Court Judge who comes from the High Court proposed appointee to the Supreme Court have not been taken account, or the views of the Chief Justice and the Senior Judges of the High Court Collegium concerned have not been sought, then in both the contingencies judicial review is available. Referring further to the judgment of Mahesh Chandra Gupta v. Union of India¹⁰⁵, Court distinguished between the issue of “eligibility” and “suitability”, stating that Article 217(1)¹⁰⁶ of the Constitution of India pertains to “suitability” of an individual, whereas Article 217(2) of the Constitution of India pertains to “eligibility” of an individual. Whilst “eligibility” is an objective criterion, “suitability” is a subjective one and decisions regarding who should be elevated which primarily involve considerations of “suitability” are not a subject of judicial review. The aforesaid view had been followed in the recent judgment in Anna Mathews v. Supreme Court of India¹⁰⁷.

Accordingly, in view of the foregoing discussion, the Supreme Court culled out the following principles relating to judicial review of any recommendation of the Collegium pertaining to appointment or transfer of any High Court Judge, as follows:

(a) “Lack of effective consultation” and “eligibility” falls within the scope of judicial review.

(b) “Suitability” is non-justiciable and resultantly, the “content of consultation” falls beyond the scope of judicial review.

In view of the above legal position, the Court held that therefore even absence of consultation amongst the members of the Collegium would fall within the limited purview of the judicial review. In the present case, it was found by the Court that the Chief Justice of the High Court had never received the resolution of the Supreme Court Collegium and therefore there was never any “effective consultation” amongst the members of the Collegium. Since there was lack of “effective consultation”, therefore judicial review was clearly available.

Collegiality and participatory process of collegium in decision-making

Elaborating upon the Collegium system, it was stated that the same is a collaborative and participative process involving all Collegium members, wherein process of appointment of Judges must reflect the collective wisdom that draws from diverse perspectives. Principles of transparency and accountability are to be maintained in such a process. Referring to Second Judges case¹⁰⁸ and Third Judges case¹⁰⁹, it was stated that element of plurality of Judge’s information of the opinion of CJI, an effective consultation amongst them acts as sufficient checks against arbitrariness. The concept of plurality of Judges in the formation of opinion is a part of participatory consultative process and collaborative deliberations bring in transparency in the overall decision-making. This contributes to public trust in the judiciary as it demonstrates that appointments are being made based on thorough consideration.

In view of the above observations, the Court repelled the contention on behalf of the High Court that Chief Justice of the High Court can individually reconsider a candidate based on how resolutions are worded. The recommendation of the Supreme Court Collegium for reconsideration is not expected to be addressed individually to all the members of the High Court Collegium but naturally addressed to the Chief Justice as the head of the High Court. It does not enable the Chief Justice to act without participation by the other two Collegium members. In the present case, the absence of element of plurality, viz. collective consultation amongst the three constitutional functionaries of the High Court (the Chief Justice and the two seniormost companion Judges) was found to be missing. In view of the above, the procedure adopted in the matter of reconsideration of the two petitioners was found to be inconsistent with the law and procedure laid down in Second Judges case¹¹⁰ and Third Judges case¹¹¹. Since there was no collective consultation and deliberation by the members of the High Court Collegium, therefore the decision of the Chief Justice individually on the suitability of the two petitioners, as conveyed in his letter dated 6-3-2024, was an individualised decision. The same therefore stood vitiated both procedurally and substantially.

Accordingly, the writ petition was held to be maintainable as it questioned lack of effective consultation and the Chief Justice could not have individually reconsidered any recommendation, which could have been done by the High Court Collegium acting collectively as a whole. The Supreme Court accordingly directed the High Court Collegium to reconsider the names of both the petitioners for elevation as Judges of the High Court following the earlier decision of the Supreme Court Collegium dated 4-1-2024 and the writ petitions were allowed.

***

(7) Dhanraj Aswani v. Amar S. Mulchandani¹¹²

(Delivered on 9-9-2024)

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

Authored by: J.B. Pardiwala, J.

The short issue before the Supreme Court was:

“Whether an application for anticipatory bail under Section 438¹¹³ of the Criminal Procedure Code, 1973 ( “CrPC”) is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case/offence?”

Divergence of judicial views on the issue

The appeal arose from the judgment of the Bombay High Court¹¹⁴, which overruled the objections raised by the appellant (original complainant) regarding the maintainability of anticipatory bail application filed by the respondent-accused, whereby despite being in custody in connection with another offence, the prayer for anticipatory bail was prayed to be rejected on the grounds of maintainability. Pertinently the accused was on the date of consideration of his anticipatory bail application already in custody in relation to offence registered by the Enforcement Directorate under the Prevention of Money-Laundering Act, 2002. The High Court proceeded to hold that respondent-accused may be in custody in one case, yet the same would not preclude him from seeking pre-arrest bail in connection with a different case. Against overruling of his objection, the appellant complainant therefore approached the Supreme Court. The High Courts of Rajasthan, Allahabad and Delhi took the view consistently that anticipatory bail application is not maintainable at the instance of a person who is already arrested and is in police or judicial custody in relation to a different case. When the corpus of the accused is already in custody of the police authorities, no question of arrest arises for touching or confining the body of the person for the purposes of custody. Therefore, the reasons to believe that he may be arrested do not survive at all, leaving Section 438 ¹¹⁵remedy unavailable and the application non-maintainable. The reference was made to the judgments of Sunil Kallani v. State of Rajasthan¹¹⁶ (Rajasthan High Court); Rajesh Kumar Sharma v. CBI¹¹⁷ (Allahabad High Court) and Bashir Hasan Siddiqui v. State (NCT of Delhi)¹¹⁸ (Delhi High Court) for reflecting the view prevalent amongst various High Courts that anticipatory bail application is not maintainable.

The Bombay High Court took a different course holding that restrictions other than what have been expressly provided under Section 438 CrPC cannot be read in addition and unnecessary bars or restrictions on the exercise of power to grant anticipatory bail cannot be read in. The Bombay High Court in the said regard followed the judgments of Supreme Court in Sushila Aggarwal v. State (NCT of Delhi)¹¹⁹ and Gurbaksh Singh Sibbia v. State of Punjab¹²⁰. Therefore, Parliament cannot be presumed to have denied jurisdiction of Sessions Court or the High Courts from granting anticipatory bail to those accused of any offence, when the accused is already in custody in relation to another offence. The view of the Bombay High Court was followed on the similar lines in Sanjay Kumar Sarangi v. State of Odisha¹²¹ by the Orissa High Court, which held there exists no statutory bar for an accused from seeking anticipatory bail in such situations. The Orissa High Court held that Section 438 CrPC operates at a future time, whenever arrest is sought to be effected of the accused. Thus, it will become effective only when the accused is released from custody in relation to the previous offence and after being released from custody in the former case, if he is sought to be arrested in the subsequent case, then he cannot to be held precluded from approaching the Court beforehand for necessary protection in the form of anticipatory bail.

Evolution of the concept of anticipatory bail and judicial developments

The Court then traced the evolution of the concept of anticipatory bail, discussing that under the original Criminal Procedure Code, 1898 (CrPC, 1898)¹²², there was though no provision analogous to Section 438 CrPC. The Full Bench of Punjab & Haryana High Court in Amir Chand v. Crown¹²³ interpreting Section 498¹²⁴ of the Criminal Procedure Code, 1898 held that anticipatory or pre-arrest bail is not available under the erstwhile 1898 Code, since any specific statutory provision was absent. The necessity of provision for grant of anticipatory bail was pointed out in the 41st Law Commission of India Report of September 1969¹²⁵, as also its 48th Report of 1972¹²⁶. Accordingly, Section 438 came to be introduced in CrPC. The purpose behind incorporation of Section 438 CrPC was precisely to recognise the importance of personal liberty and freedom in a free and democratic country. Legislature was keen to ensure respect for the personal liberty of individuals by pressing in service the age-old principle that individual is presumed to be innocent until he is found guilty by the Court. Referring to the Constitution Bench judgment of Kartar Singh v. State of Punjab¹²⁷, the Court stated that there is no constitutional or fundamental right to seek anticipatory bail. Kartar Singh case¹²⁸, judgment was delivered in the context of constitutional validity of Section 20(7) of the Terrorists and Disruptive Activities (Prevention) Act, 1987¹²⁹. The Constitution Bench in the process also examined the validity of State amendments to Section 438 CrPC in the State of Uttar Pradesh, wherein Section 438 was deleted altogether it was held that Section 438 in the new CrPC was merely introducing a new right. The said new right can also be taken away in the same manner as it has been introduced and removal of Section 438 at any time from the statute book will not amount to violation of Article 21. Thus, Section 438 is merely a statutory right. Referring to the Constitution Bench judgment of Gurbaksh Singh Sibbia case¹³⁰, the Supreme Court stated that personal liberty under the Constitution of India must be consistent with the needs of the investigations and courts must avoid generalisations that take away the discretion of the courts in considering anticipatory bail applications with new set of facts in each case. However certain judgments of the Supreme Court post Gurbaksh Sing Sibbia case¹³¹, held that anticipatory bail must be granted for a limited duration. This distortion in the views of the Supreme Court led to the issue reaching the Constitution Bench again in Sushila Aggarwal case¹³². The Constitution Bench held broadly in the aforesaid judgment that Court on its own motion should not try to read any other restriction or precondition for the exercise of powers pertaining to plea for grant of anticipatory bail. In the absence of Parliament excluding or restricting the powers of the courts expressly, akin to the statutory provision Section 438(4) CrPC, no inflexible guidelines can be laid down regarding exercise of discretion for grant of anticipatory bail.

“Reasons to believe” that a person may be arrested in relation to some other non-bailable offence

The Court discussed two preconditions for any person to be taken into custody in relation to any offence. One of them being, is actual touch or confinement of the body of the accused, followed by his arrest in relation to the offence. If the view of the Rajasthan High Court is accepted, it would amount to precluding the applicant from availing a statutory remedy which he is otherwise entitled to, and can avail as soon as he is released from the custody in the first offence. Such a restriction is clearly not envisaged under the scheme of CrPC, as it would amount to exploitation of the view by investigating agencies for putting personal liberty of the accused in peril.

Referring to the judgment of CBI v. Anupam J. Kulkarni¹³³, Court stated that the investigating agency can always formally arrest any accused (already in custody), in connection with his involvement in a different case and associate him with the investigation of that other case. The accused can be in such a situation be shown to be arrested in respect of any number of other crimes registered elsewhere in the country. The accused must be formally arrested in connection with the other case and then orders be obtained from the jurisdictional Magistrate for detention in police custody. However, what has to be seen is whether the offences arising out of the occurrences are part of the same or different transactions. If they constitute two different directions and transactions, then they give rise to two different cases and exercise of power under Sections 167(1) and (2)¹³⁴ should be in consonance with the object underlying the said provision. Even the bar on maximum detention of 15 days in the police custody would not apply if the same accused is arrested in a different case arising from a different transaction and constitutes a different offence. The Magistrate in such a case can remand him to such custody in relation to the separate/distinct offence for a period of 15 days, even though if in relation to the previous offence, that period has already been spent in the police custody. There are two ways in which a person already in custody may be arrested and the same were explained by the Court as follows:

(a) first, no sooner than he is released from custody in connection with the first case, the police officer can arrest and take him into custody in relation to a different case; and

(b) secondly, even before he is set free from the custody in the first case, the police officer investigating the other offence can formally arrest him and thereafter obtain a prisoner transit warrant (“PT warrant”) under Section 267¹³⁵ CrPC from the jurisdictional Magistrate for the other offence, and thereafter, on production before the Magistrate, pray for remand; or

instead of effecting formal arrest, the investigating officer can make an application before the jurisdictional Magistrate seeking a PT warrant for the production of the accused from the prison.

Therefore, arrest has to be affected in both the circumstances, even though he is in custody. It cannot be said that procedural laws preclude the investigating agency from arresting a person in relation to a different offence, already under custody in some previous offence. Likewise applying the principle of ubi jus ibi remedium (where there is a right, there is a remedy), the accused cannot be precluded of his statutory right to apply for anticipatory bail only on the ground that he is in custody in relation to a different offence. An arrest can be made by a police officer either without a warrant or with a warrant issued by a court. If the accused is arrested and in custody in one offence, then it is only under Section 267 CrPC that he can be removed from such custody and produced before the jurisdictional Magistrate, where the other offence is registered. The Court then interpreted the term “arrest and custody”, to state that a lawful arrest can be made even without actually seizing or touching the body of the accused. Actions or words which successfully bring to the notice of the accused that he is under a compulsion and thereafter cause him to submit to such compulsion will also be sufficient to constitute arrest. Referring to the judgment of State of U.P. v. Deoman Upadhyaya¹³⁶, the Court held that submission to custody by word or action by a person is sufficient to constitute arrest under Section 46¹³⁷ CrPC. The mere bringing of the accused under compulsion and the accused submitting to the compulsion amounts to arrest contemplated under Section 46 CrPC. Once such formal arrest has been made, an application under Section 267 CrPC, has to be made before the jurisdictional Magistrate for issuance of a PT warrant without delay. On issuance of PT warrant by the jurisdictional Magistrate, the accused has to be then produced before such Magistrate on the date and time mentioned in the warrant under Sections 268¹³⁸ and 269¹³⁹ respectively of CrPC. The accused can then be remanded to police or judicial custody or be enlarged on bail if applied for and allowed. Thus, the reasoning of the Rajasthan, Allahabad and Delhi High Courts can be negated on the ground that once in custody, it is always possible to re-arrest a person any number of times in relation to a different offence and PT warrant to be obtained for being produced before the jurisdictional Magistrate. The PT warrant enables a different jurisdictional Magistrate to subject the accused again to a fresh round of police or judicial remand. Accordingly, the view taken by Rajasthan, Allahabad and Delhi High Courts that person while in custody cannot be rearrested in relation to a different offence was held to be an erroneous view and resultantly the Court held that he can always have a “reason to believe” that he may be arrested in relation to a different cognizable offence. Therefore, no restriction in the text of Section 438 or the scheme of CrPC can be read in precluding any person from seeking anticipatory bail in relation to an offence for which he has not been subjected to custody or arrested yet.

The Court however clarified that the option of applying anticipatory bail in relation to an offence while being in custody will be available only till the time he is arrested by the police officer on the strength of the PT warrant obtained by him under Section 267 CrPC from another jurisdictional Magistrate. Mere formal arrest (or paper arrest) would not extinguish the right of the accused to apply for anticipatory bail, till and until a PT warrant is issued and accused submitted to compulsory custody in relation to another offence. If an accused is granted anticipatory bail in relation to an offence, while being in custody in a different offence, then the right of the police officer to apply under Section 267 CrPC and procure a fresh PT warrant for protection of the accused before another jurisdictional Magistrate also ceases. However, the jurisdictional Magistrate may always require the production of the accused (enlarged on anticipatory bail) under Section 267(1) for any other purpose under the said section, except for the purpose for remanding him to police or judicial custody. A person once arrested in relation to any offence cannot be said to suffer further humiliation for any subsequent arrest which may take place and thus the relief of anticipatory bail is available to a person already in custody. The Court eventually gave various illustrations accordingly to arrive at the conclusion that a person arrested in a particular offence and subjected to custody possesses all the rights conferred by the statute in relation to a separate offence, which are independently protected. Once anticipatory bail is obtained in relation to the subsequent offence by the accused, it is no longer open to the investigating agency to seek remand of the accused in relation to the subsequent offence. However, to the contrary, if any order of police remand is passed before the accused is able to obtain anticipatory bail, then the right of the accused to seek the said bail under Section 438 CrPC ceases and the only option available to him then is to seek regular bail. This interpretation is in terms with the rights of the accused to protect his personal liberty within the contours of Article 21 of the Constitution of India, which cannot be defeated or thwarted without a valid procedure established by law. Not only such a provision must be expressly provided, but the said procedure must necessarily pass the test of fairness, reasonableness and manifest non-arbitrariness on the anvil of Article 14 of the Constitution of India. Referring to the judgment of A.R. Antulay v. R.S. Nayak¹⁴⁰, the Court stated that no man can be denied of his right under the Constitution of India, and he has a right to be dealt in accordance with law and not in derogation of it. He cannot be singled out for a special procedure not provided under the law, as it would also cause denial of rights under Article 14 of the Constitution of India. Referring further to the judgment of State of W.B. v. Anwar Ali Sarkar¹⁴¹, it was stated that procedural laws confer very valuable rights on the person and their protection must be as much the object of the Court’s solitude as those conferred under the substantive law. Accordingly, the Supreme Court dismissed the appeal, affirming the view taken by the Bombay High Court on maintainability of anticipatory bail.

***

(8) Jaseela Shaji v. Union of India¹⁴²

(Delivered on 12-9-2024)

Coram: 3-Judge Bench of B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Authored by: B.R. Gavai, J.

The appeal arose from the dismissal of habeas corpus petition filed by the appellant (wife of detenu) who was detained pursuant to the detention order passed under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( “COFEPOSA”). The detention order was passed by the detaining authority under Section 3(1)¹⁴³ of the COFEPOSA for preventing him from acting in any manner prejudicial to the augmentation of foreign exchange in future. There were 12 grounds on the basis of which the detention order dated 31-8-2023 came to be passed and the detaining authority relied on various statements, one of which related to statement and WhatsApp chats of Ms Preetha Pradeep recorded by the detaining authority. Though the detenu was informed about his right to make a representation to the Central Government and the Advisory Board, and the detenu did make the representation, however the jail authority sent the said representation to the authorities through the ordinary post. Neither the detaining authority nor the Central Government received the said representation; the Advisory Board opined that there was sufficient cause for the detention of the detenu, on the basis of which the detention order was confirmed by the Central Government for a period of one year from 2-9-2023.

Grounds of challenge to detention

The detention order was challenged on multiple grounds, viz. that statements of Ms Preetha Pradeep that constituted the basis of detention were never provided to the detenu and thus non-supply of the material on the basis of which subjective satisfaction was arrived affected his right guaranteed under Article 22(5)¹⁴⁴ of the Constitution of India to make an effective representation. It was further contended that though the representation was submitted timely, the same was never transmitted timely to the Central Government and the detaining authority, which did not even receive the same and thus decision taken without consideration of the representation of the petitioner was vitiated. There was no real and proper consideration of the representation, in the transmission and receipt of which there was inordinate delay and therefore non-consideration of the representation of the detenu vitiated the detention order.

Issues for consideration

On the submissions of the petitioner, two issues were framed for consideration, which were:

(a) As to whether the non-supply of the statements of Ms Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India.

(b) As to whether non-receipt of the representation by the detaining authority and the Central Government would also affect the right of the detenu under Article 22(5) of the Constitution of India.

Re Issue 1: Non-supply of statements constituting the grounds of detention

The Court vide this issue considered whether the non-supply of statements of Ms Preetha Pradeep affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India. Referring to the judgments of M. Ahamedkutty v. Union of India¹⁴⁵, Vakil Singh v. State of J&K¹⁴⁶ and L.M.S. Ummu Saleema v. B.B. Gujaral¹⁴⁷, it was stated that the constitutional imperative of Article 22(5) is twofold, viz. the fastest communication of the grounds to the detenu on which the order of the detention has been made and affording of earliest opportunity of making a representation against the order of detention. It is immaterial whether the detenu was aware of the contents of the document or not and that non-furnishing of the copy of the necessary documents that constitute the grounds of detention itself prejudices the detenu. The right guaranteed under Article 22(5) is to make an effective representation and whenever any documents are referred to or relied on in the grounds of detention, communication of the grounds of detention would not be without the copy of such documents being furnished to the accused. The detenu has the right to be furnished with the grounds of detention and the documents so referred or relied upon in the grounds. Failure or even delay in furnishing those documents per se would vitiate the detention order, since it amounts to denial of the right to make an effective representation. Referring further to the judgment of Radhakrishnan Prabhakaran v. State of T.N.¹⁴⁸ and J. Abdul Hakeem v. State of T.N.¹⁴⁹, the Supreme Court stated that though there is no legal requirement that a copy of every document mentioned in the order be necessarily supplied to the detenu, but all such documents relied on by the detaining authority must be supplied which are considered for reaching the satisfaction that preventive detention of the detenu is necessary. Courts are under a bounden duty to ensure that right to personal liberty and individual freedom is not arbitrarily curtailed even temporarily, without following the procedure prescribed by law of any person.

Referring extensively to the statements of Ms Preetha Pradeep recorded by the detaining authority, the Court thus held that the statement, WhatsApp conversations of Ms Preetha Pradeep is a vital link for the alleged transactions between one Suresh Babu and the detenu. The statements of Ms Preetha Pradeep have not just been made a casual or passing reference. Rather they form a basis for arriving at a subjective satisfaction of the detaining authority. Thus, it was necessary for the detaining authority to have supplied the statements of Ms Preetha Pradeep necessarily along with the grounds and their non-supply has denied the effective opportunity to the accused to make an effective representation under Article 22(5), which vitiates the detention order.

Re Issue 2: Non-receipt and delay in deciding the representation also amounted to denial of right of detenu under Article 22(5) of the Constitution of India

It is admitted that detenu had submitted his representation on 27-9-2023 to the jail authorities for being transmitted to the detaining authority and the Central Government, which was merely forwarded through ordinary post. The said representation neither reached the detaining authority, nor the Central Government, or could it be tracked. It is only when the notices were issued in the appeal by the Supreme Court, that the said representations were tracked and rejected in June 2024 after a period of almost 9 months. Thus, there was admittedly a time-period of 9 months taken by the Central Government and the detaining authority in deciding the representation of the petitioner. Referring to the judgments of Tara Chand v. State of Rajasthan¹⁵⁰ and Rattan Singh v. State of Punjab¹⁵¹, it was stated that delay in communication of the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or the agents. The detenu under Article 22(5) of the Constitution of India must be afforded the earliest opportunity to make a representation and it is the Government obligation to consider and recite the representation at the earliest, the failure to comply which results in breach of the constitutional imperatives. The constitutional obligation to consider the representation speedily of the detenu is distinct from the obligation to constitute an Advisory Board and to communicate the representation amongst other materials to the said board for enabling it to form its opinion and to obtain such opinion. On the Advisory Board confirming the order of detention as sustainable, the Central Government is further obligated to immediately forward the representation to the competent authority for considering and deciding it speedily. The fundamental right to be real and effective obligates the Jail Superintendent/State Government to forward the detenu’s representation at the earliest dispatch, failure to do so which necessitates revocation of the detention order itself. The failure of the State Government in forwarding the detenu’s representation timely to the Central Government amounts to deprivation of the valuable right of the detenu to have his representation considered timely and properly by the Central Government. Referring further to the judgments of Vijay Kumar v. State of J&K¹⁵² and Aslam Ahmed Zahire Ahmed Shaik v. Union of India¹⁵³, it was stated that even the delay of 14 days in transmitting the representation to the detaining and confirming authority was found to have vitiated the detention order itself. It is imperative on the part of every authority to transmit the representation with all reasonable promptness and diligence, delay in which ultimately results in delay in disposal of the representation, which invalidates the order of detention in itself. The Supreme Court observed in the present case that delay in forwarding of the representation of the detenu not only amounted to extreme callousness but also led to violation of valuable right to have his representation decided expeditiously. In view of technological developments and advancements, the said representation ought to have been sent through email within a day, instead of being sent through ordinary post. Accordingly, since there had been about 9 months of delay in deciding the representation itself by the Central Government and the detaining authority, the detention order became liable to be quashed. Answering the second issue also in favour of the detenu, it was held that on the said grounds of non-forwarding and non-consideration of the representation timely by the competent authorities, the detention order was set aside. The detenu was directed to be released forthwith by allowing the appeal filed by his wife.

***

(9) Sukanya Shantha v. Union of India¹⁵⁴

(Delivered on 3-10-2024)

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

Authored by: Dr D.Y. Chandrachud, J.

The 3-Judge Bench addressed the critical issue of caste-based discrimination within the country’s prison system, on a writ petition initiated by a journalist highlighting the discriminatory practices in her article. The writ petition challenged various State prison manuals, arguing that their provisions lead to division of manual labour and segregation of barracks based on caste and discrimination against prisoners belonging to Denotified Tribes (“DNTs”) and habitual offenders. The petitioner sought directions for the repeal of discriminatory provisions in State prison manuals for being violative of fundamental rights enshrined in the Constitution of India.

The core challenges and constitutional values

The Bench stated that the enactments regulating the prison system and the prisoners in a State must reflect the values of liberty, equality and fraternity emanating from the Constitution. They must aim for a just and inclusive society where constitutional values are “lived realities”. The State-sanctioned caste-based discrimination has led to a situation where a man of “higher caste”, if forced to work at any trade, would “disgrace him” and his family, and would be viewed as cruelty, while the convicts from communities lower in the caste hierarchy were expected to continue with their customary occupations in jail. The caste hierarchy which the Constitution of India aims to eradicate seems to have replicated within the prison.

Referring to Indian Young Lawyers Assn. v. State of Kerala¹⁵⁵, the Bench described the anti-caste vision of the Constitution and emphasised the need to scrutinise social practices to keep them in consonance with the egalitarian values of the Constitution. The Bench reiterated constitutional provisions provided under Articles 14¹⁵⁶, 15¹⁵⁷, 17¹⁵⁸, 21 and 23¹⁵⁹ of the Constitution of India, aiming to dismantle centuries old caste based hierarchical and social order in prisons and to replace wrongs being committed against the fundamental rights of the prisoners.

Referring to the judgments of Charles Sobraj v. Supdt., Central Jail¹⁶⁰, Sunil Batra (II) v. State (UT of Delhi)¹⁶¹, Kishore Singh Ravinder Dev v. State of Rajasthan¹⁶², Francis Coralie Mullin v. State (UT of Delhi)¹⁶³ and Nilabati Behera v. State of Orissa¹⁶⁴, the Bench reiterated the jurisprudence emerged upon the rights of prisoners under Article 21 that even the incarcerated have inherent dignity and they are to be treated humanely, without cruelty. It further stated that the prison system must be such as to cater to the physical and mental health of the prisoners and the prison officials cannot take any disproportionate discriminatory measures against the prisoners.

The Bench while taking into consideration Article 23 with respect to division of labour in prisons observed that degrading labour cannot be forced upon prisoners and it is the State’s constitutional obligation to ensure that the fundamental rights are observed and protected even in the absence of any formal employment relationships or remuneration with the prisoners, to prevent any action which can be denigrating or violative of human dignity.

Discrimination in pre-colonial and colonial eras

The Bench noted that the Indian society witnessed violence, discrimination, oppression, hatred, contempt, and humiliation towards oppressed classes, deeply entrenched by the caste system. This system was based on the notions of purity and pollution as provided under the four varnas and which denied access to education, land and employment to the people identifying with the Bahujan Committees.

Under the British Colonial era, the existing social hierarchies were reproduced and reinforced in the form of the Criminal Tribes Act, 1871 ( “CTA”) which empowered the Government to declare any community as “criminal tribe” based on the stereotype that their ancestors were criminals. This legislation led to institutionalised incarceration, exploitation of labour and social stigma of “born criminality”. The British administration broadly agreed to respect caste inside prisons, linking caste with their administration of labour, food and treatment of prisoners.

Denotified Tribes were continuously targeted

Post-Independence, the CTA being inconsistent with the values enshrined under the Constitution, was repealed and these communities came to be known as DNTs. Legislations were enacted to prevent discrimination and atrocities against Scheduled Castes and Scheduled Tribes ensuring their dignity and safety. However, the continued targeting of DNT’s, particularly by classifying them as “habitual offenders”, false implications, lack of fair investigation and trial and making arbitrary arrests against them and classifying Hijras (community) as criminal, along with persisting caste-bias in history-sheets and classification of “habitual offenders”, in the post-CTA habitual offender laws enacted by the States. Such instances in post-CTA legislations often target DNT’s based on mere suspicion rather than through conviction.

Impugned prison manuals and codified discrimination

The Bench observed that impugned prison manuals and rules persisting in various States of Uttar Pradesh, West Bengal, Madhya Pradesh, Andhra Pradesh, Kerala, Tamil Nadu, Maharashtra, Karnataka, Rajasthan and Himachal Pradesh have been perpetuating caste-based discrimination, reflecting a legacy of discrimination being continued from the colonial era.

The Bench after examining the provisions provided under the prison manuals of these States, found that the manuals are discriminatory as they directly identify caste as a basis to allocate labour, make use of vague terms like “suitable caste” or “superior mode of living” to subtly privilege higher castes in cooking duties or barrack classification while assigning degrading or menial character duties to the people of castes accustomed to perform such duties. The Bench further stated that phrases though they seem neutral, they carry embedded bias reinforcing the historical caste-based practice of labour division and general treatment. It also stated that the members of DNT’s are targeted by associating them as “habitual criminals”, even without any prior convictions, reaffirming the colonial discrimination of “criminal by birth” and reinforcing caste-based stereotypes and social stigma.

The Bench observed that the provisions classifying duties and lifestyle based on caste are unconstitutionally vague, indeterminate and arbitrary as they lack a real and pertinent distinction. The classification fails the intelligible differentia test and the legislations affecting them are manifestly arbitrary as they bear no nexus with the prison discipline or reform and this subverts substantive equality. It further observed that such enactments hinder the possibility of prison reformation and impede the efforts of the society to overcome caste barriers. Since a labourer’s dignity and integrity are integral to their liberty, no work that results in their degradation can be forcibly imposed on a prisoner. The Bench termed the practice of forcing the members of the marginalised communities to perform menial tasks based solely on their caste background as “forced labour”.

Model Prison Manual, 2016 and the Model Prisons and Correctional Services Act, 2023 are inadequate

The Union Government cited the Model Prison Manual, 2016 ( “2016 Manual”) and the Model Prisons and Correctional Services Act, 2023 (“Model Act”) as modern documents prohibiting caste discrimination. The Bench analysing the 2016 Manual observed that it only prohibits caste/religion-based discrimination in kitchens and general special treatment, while it fails to explicitly prohibit caste-based segregation of prisoners beyond women prisons which was the need of the present prison system. It further stated that the 2016 Manual does not prohibit caste-based division of work outside cooking and in the definition of “habitual offender” so provided is vague which can lead to continued classification and separation of DNT’s.

It was argued before the Bench that segregation of prisoners on caste basis is necessary in some cases to prevent any clashes among the prisoners. The Bench stated that it is the responsibility of the prison administration to maintain discipline inside the prison without resorting to extreme measures that promote caste-based segregation. It further stated that discipline cannot be secured at the altar of violation of fundamental rights and correctional needs of inmates. The prison authorities ought to be able to tackle perceived threats to discipline by means that are not right effacing and inherently discriminatory.

The Bench with respect to the Model Act of 2023 stated that it fails to target the fundamental need of the enactment i.e. prohibition of caste-based discrimination in prisons as it does not contain any reference to the issue. The Bench observed that the classification of “habitual offenders” under these legislations has been used to target members of DNTs as they vaguely define “habitual offender” and in overbroad manner allows for arbitrary classification and increased surveillance in high security prisons, leading to potential misuse of power by the prison officials.

The Bench also noted that the Model Act of 2023 in an attempt to ensure protection to the fundamental rights of the prisoners has mandated the District Legal Services Authorities (“DLSA”) and the Board of Visitors to conduct regular inspection of prisons during which they should check prison conditions along with health, sanitation, food, hygiene and access to legal representation and whether the proper management and discipline is maintained in every respect in the prisons. It provides composition of the Board of Visitors and also the duties of the Board to fulfil and that the recordings of the visit shall be forwarded to the Inspector General of Prisons.

However, the Bench stated that various “habitual offender” laws enacted by State Governments were not under the challenge before the Bench and thus the Bench restricted itself to deal with their validity. The Bench finally stated that the definition of “habitual offenders” in the prison manuals/rules shall be in accordance with the definition provided in the habitual offender legislation enacted by that State, subject to any constitutional challenge against such legislation in the future and if in case there is no habitual offender legislation in the State, then the references to “habitual offenders” directly or indirectly as discussed in this judgment was to be struck down as unconstitutional.

Conclusion and directions

The Bench in conclusion issued the following directions:

(i) the impugned provisions under Prison Manuals/Rules are declared unconstitutional for being violative of Articles 14, 15, 17, 21 and 23 of the Constitution of India. All States and Union Territories are directed to revise their Prison Manuals/Rules in accordance with this judgment within a period of 3 months;

(ii) the Union Government is directed to make necessary changes in the 2016 Manual and the Model Act of 2023 within a period of 3 months;

(iii) the “caste” column and any references to caste in undertrial and/or convicts’ prisoners’ registers inside the prisons shall be deleted;

(iv) the police is directed to follow the guidelines issued in Arnesh Kumar v. State of Bihar¹⁶⁵ and Amanatullah Khan v. Commr. of Police¹⁶⁶, to ensure that members of DNTs are not subjected to arbitrary arrest;

(v) the Court took suo motu cognizance of the discrimination inside prisons on any ground such as caste, gender, disability, and ordered for the matter to be listed as Discrimination Inside Prisons in India, In re¹⁶⁷ and on the first date of hearing, directed all the States and the Union Government to file a compliance report on this judgment; and

(vi) the DLSAs and the Board of Visitors so formed shall jointly conduct regular inspections to identify whether caste-based discrimination is still taking place inside prisons. They shall submit a joint report to the State Legal Services Authority (“SLSA”), which shall compile a common report and forward it to National Legal Services Authority (“NALSA”), which shall in turn file a joint status report before the Court in the suo motu writ petition.

This judgment serves as a powerful reminder that the Constitution of India is a living document, constantly adapting to address historical injustices and to evolve towards a more equitable society.

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(10) Om Rathod v. Director General of Health Service¹⁶⁸

(Delivered on 25-10-2024)

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

Authored by: Dr D.Y. Chandrachud, J.

The present matter involved the decision of Disability Assessment Board (“DAB”), while certifying the eligibility of the petitioner for pursuing the MBBS course. The petitioner had the disability of lower limb myopathy — a locomotor disability. Being academically successful, the appellant appeared for NEET UG Examination under the Person with Disabilities (“PwD”) category and qualified the same. However, in view of his disability crossing the benchmark of 80% disability, as per the applicable guidelines he could be given admission to medical course only after assessing his functional competence to navigate the academic and practical requirements, the assessment being carried out by the MB constituted at the regional level. Accordingly, the petitioner on being subjected to assessment by the All India Institute of Medical Sciences (AIIMS) MB, Nagpur was found to be possessing more than 80% disability and therefore ineligible for pursuing the MBBS/Dental course. The High Court on a challenge being made to the decision of the Assessment Board dismissed the petition, holding that the opinion of the expert body cannot be interfered into. On a challenge being made to the High Court’s verdict, the Supreme Court directed examination and assessment of the petitioner before the AIIMS MB, Delhi. The Court thereafter directed the Assessing Committee to examine and assist the Court on whether notwithstanding the quantified benchmark disability, the appellant can still pursue the MBBS degree course. This direction was passed by the Supreme Court in view of its previous judgment in Omkar Ramchandra Gond v. Union of India¹⁶⁹. The appellant was found by the Committee to be able and competent to pursue the medical course regardless of his disability and not lead to failure to meet the inherent requirement of National Medical Council’s (“NMC”) medical course and syllabus. The appellant was also subjected to “functional assessment” by being given various instruments which he would be required to use in his course and profession. He was found suitable with appropriate clinical accommodations to pursue an MBBS course. In the meanwhile, the NEET counselling got over and the petitioner therefore prayed for the creation of a supernumerary seat for the injustice meted out to him.

Rights of Persons with Disabilities Act, 2016 and the guidelines framed thereunder; A paradigm shift

The enactment of Rights of Persons with Disabilities Act, 2016 (“RPwD Act”) marked a paradigm shift in disability law from “charity based” to a “rights based” approach. Vide Section 32¹⁷⁰ it was mandated to provide reservation to PwD in all the Government and Government aided institution of higher learning. The amendment to guidelines framed thereunder in May 2019 allowed even those persons with more than 80% locomotor disabilities to pursue medical courses on a case-to-case basis. The amended guidelines introduced a welcome change by marking a shift from purely “benchmark model” to a “functional ability model”. The guidelines allowed even the candidates with more than 80% locomotor disability (benchmark disability) to be accommodated in courses of higher learning if using assistive devices their disability can be brought down below 80%. Earlier the guidelines (prior to 2019) promoted self-rejection of disabled aspirants by assuming that their accommodation in the system would lower the standard of competence of the discipline concerned of higher education. However, the current guidelines allow persons with more than 80% locomotor disability even to be admitted to MBBS course on a case-to-case basis after a functional competency assessment to see whether their disability can be brought below 80%. The guidelines post their 2019 Amendment therefore give way to a social model of disability, taking into account the variety of experiences and outcomes which PwD have when they interact with different kinds of societies and accommodations.

Fair assessment of competence of PwD; Reasonable accommodation and functional competence

The Guidelines of 2019 must be purposively interpreted in light of legislative intent of the governing statute, namely, the RPwD Act. The RPwD Act harmonises the constitutional promise of full citizenship with action — by creating a framework in which PwD’s translate their rights into remedies. Section 2(h)¹⁷¹ of the RPwD Act defines discrimination in the context of disability, whereunder denial of reasonable accommodation is expressly recognised as discrimination under the RPwD Act. A failure to create a conducive environment for PwD is a failure to provide reasonable accommodation. Therefore, the Assessment Boards must examine whether the candidate can pursue the course with their disability; and in doing so the Board is not merely obliged to provide assistive devices and other substances which will help the candidate. The true role of the Board is to assess the competence of a candidate. The principle of reasonable accommodation is therefore not only statutorily prescribed but also rooted in the fundamental rights under Part III of the Constitution of India. Court declared that reasonable accommodation of PwD is a gateway right and a fundamental right under Part III of the Constitution of India to enjoy all other rights enshrined in the Constitution and the law. Vide Section 3¹⁷² of the RPwD Act there is a positive obligation on the State to realise the inclusive premise of the enactment in the concept of reasonable accommodation. It includes the duty to create an environment conducive for the development of PwD, tailored to the requirement of each condition of disability. Failure to meet the individual needs of every disabled person breaches the norm of reasonable accommodation. Referring to the judgments of Vikash Kumar v. UPSC¹⁷³ and Ravinder Kumar Dhariwal v. Union of India¹⁷⁴, Court held that central to the principle of reasonable accommodation is the right to access legal protection without undue mental hardship. Referring to the judgment of Bambhaniya Sagar Vasharambhai v. Union of India¹⁷⁵, Court held that DABs should shun the approach of a recluse by confining themselves to only quantifying the disability of the candidate but must align themselves with legal and constitutional guarantees to PwDs. The courts in turn must ensure that the sanctity of the principles in the RPwD Act and in the Constitution of India are not violated by the conduct or the outcome of assessment by the DABs.

Quoting Dr Martin Luther King Jr. who had famously remarked that; “injustice anywhere is a threat to justice everywhere”, the Court stated that when courts allowed injustice to occur, we normalise the idea that fundamental rights and freedoms are violable and the inviolability of our collective commitment to protect them is also resultantly weakened. Likewise, when reasonable accommodation is denied to any PwD, it not only amounts to discrimination, violating his fundamental right, but also the preambular virtue of fraternity along with justice, liberty and equality. PwDs are not objects of pity or charity, but an integral part of our society and nation. Referring to the Report of the United Nations Committee on the RPwDs, the Court stated that medical model of disability must give way to the assessment model by adopting a human rights approach. However, at the same time multiple assessments should not create an undue burden on the PwD. The DABs must further elaborate on the reasons for the outcome of their assessment, especially when they opined that the candidate is ineligible. The DABs must focus on the functional competence of the PwDs and not merely quantify the same. The role of the DABs must be tailored with a functional competency approach only for the course which the candidate seeks to pursue. Accordingly, the Supreme Court in view of the aforesaid observations on the role of DABs and approach of the courts in interpreting the RPwD Act concluded that the judgment of the Bombay High Court was erroneous and accordingly set aside. The report of the DAB, AIIMS, Nagpur was also quashed for failing to apply the statutory and regulatory standards applicable to the assessment of any PwD. A supernumerary seat was directed to be created at AIIMS, Nagpur for being allocated to the appellant. The judgment was further directed to be applied in rem.

Accordingly, with various directions pertaining to functioning and guidelines to be followed by the DABs for admitting PwDs in various medical and other courses of higher learning, the appeal was allowed by the Court.

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(11) Kirloskar Ferrous Industries Ltd. v. Union of India¹⁷⁶

(Delivered on 7-11-2024)

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

Authored by: J.B. Pardiwala, J.

The petitioners challenged the validity of Explanation to Rule 38 of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 (“MCR, 2016”) and Explanation to Rule 45(8)(a) of the Mineral Conservation and Development Rules, 2017 (“MCDR, 2017”), which stipulated computation of royalty to be levied for the extraction or consumption of mined ores. Earlier under the Mineral Concession Rules, 1960 (MCR, 1960)¹⁷⁷, the computation and payment of royalty to place in terms of Section 9¹⁷⁸, read with ( “r/w”) Schedule 2¹⁷⁹ to the Mines and Minerals (Development and Regulation) Act, 1957 (“MMDR Act”). Under the earlier dispensation of the MCR, 1960, vide Rule 64-D it was stipulated that royalty to be paid for all non-atomic and non-fuel minerals would be computed on the basis of Statewise sale price of different minerals as published by the Indian Bureau of Mines ( “IBM”). This royalty may be computed both based on gradewise and Statewise sale price of minerals as published by the IBM. Vide Amendment of 2015 to the MMDR Act¹⁸⁰, the contributions towards the District Mineral Foundation ( “DMF”) were computed as a percentage of the royalty paid by the mining leaseholder that could extend up to a sum equivalent to a maximum of one-third of such royalty. Thereafter, the Mines and Minerals (Contribution to District Mineral Foundation) Rules, 2015 (“the DMF Rules”) came to be amended, where under the contributions towards District Mineral Foundation (DMF) were directed to be computed at 10% of the royalty paid in accordance with the Second Schedule. Likewise, for the National Mineral Exploration Trust ( “NMET”) under Section 9-C¹⁸¹ of the MMDR Act, a sum equivalent to 2% of the royalty was stipulated to be calculated. Under the MCR, 2016, vide Rule 39(3) royalty came to be assessed on any mineral on an ad valorem basis and to be calculated at a specified percentage of the average sale price of such mineral.

The petitioners thus contended that royalty which has already been paid in the previous month is again being factored for the purposes of computation of royalty to be paid for the subsequent months in view of explanation to Rule 38 of the MCR, 2016 and Rule 45 of the MCDR, 2017. This is the anomaly since it amounted to “compounding of royalty”. It was submitted that Central Government remedied the aforesaid anomaly in case of coal by excluding the previously paid royalty and contributions towards DMF and NMET in its calculation vide amendment effected to the MMDR Act.

The petitioners further contended that non-exclusion of royalty and contributions made to DME and NMET in the computation of sale value vide the impugned provisions of Explanation to Rule 38 of the MCR, 2016 and Rule 45(8)(a) of the MCDR, 2017 is erroneous inasmuch it amounts to imposition of royalty on a royalty creating a twin charge, which is impermissible in any taxing statute. The Court thus framed the solitary issue for its determination: viz. whether the Explanations appended to Rule 38 of the MCR, 2016 and Rule 45 of the MCDR, 2017 respectively are unreasonable and manifestly arbitrary, in consequence of violation of Article 14 of the Constitution of India.

Challenge to manner or mechanism of computation of royalty under the MCR, 2016 and MCDR, 2017

Referring to the judgments of M.P. Oil Extraction v. State of M.P.¹⁸² and Delhi Science Forum v. Union of India¹⁸³, the Court reiterated the settled position that policy decisions are the domain of the executive authority of the State and courts should not embark on uncharted ocean of public policy, questioning the efficacy or otherwise of such policy, so long the same is not unconstitutional or ultra vires the parent statute. Courts do not possess the wherewithal to express opinion as to whether any particular policy should be adopted or not, nor any direction can be given pertaining to implementation of any policy, till and until violation or infringement of any constitutional statutory right is shown.

Thus, under the provisions of the MMDR Act, the rule making powers of the Central Government are vast and wide. Merely because the methodology of formula for computation for royalty has been altered from what it was under the earlier regime of the MCR, 1960 and a new formula has been introduced, will not make the new mechanism or methodology unreasonable or arbitrary, liable to be struck down. The Court’s approach of non-interference in policy matters is rooted in the notions of judicial restraint. The duty of the Court in policy related cases is primarily to determine only whether the policy falls within the scope of the statutory authority granted to the relevant body and whether proper procedure has been followed whilst framing the policy. If these two elements are present, then the Court should defer to the expertise and discretion of the policymakers. These are best managed by the executive which has access to economic data and is accountable to the public for its financial management. Judicial interference risks creating disruptions in the economic balance that policymakers are trying to achieve.

Interpreting the role, scope and extent of “Explanation” appended to any statutory provision, Court stated that an “Explanation” or “proviso” appended to a section maybe in addition to the substantive provision of the statute. Referring to the judgments of State of Punjab v. Governor of Punjab¹⁸⁴ and State of U.P. v. Achal Singh¹⁸⁵, Court stated that an “Explanation” does not enlarge the scope of the original section which it is supposed to explain. It also does not limit the scope of the main/principal provision. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or subtract from it. It was held thus the Explanations appended to Rule 38 of the MCDR, 2016 and Rule 45 of the MCDR, 2017 (assailed in the petitions) does not amount to derogation from the main provision. The aforesaid explanations are merely clarificatory in nature, explaining the ambiguities in the main provisions of Rules 38 and 45. They cannot be treated to be exceeding the ambit of the main provision or in contravention of the statutory scheme.

Exclusion of royalty in contributions towards DMF and NMET qua coal, but not for other minerals: Whether is unreasonable and manifestly arbitrary

Referring to the judgments of R.K. Garg v. Union of India¹⁸⁶ and State of T.N. v. National South Indian River Interlinking Agriculturist Assn.¹⁸⁷, the Court stated that laws relating to economic activities should be viewed with greater latitude and legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit a solution through any doctrinal or straitjacket formula. Greater play in the joints has to be allowed to the legislature and the executive whilst dealing with economic matters. Courts must show a higher degree of deference when matters concerning economic policy are challenged, compared to matters of civil and political rights. A judicial hands-off approach must be followed qua economic legislation. The MMDR Act and the Rules framed thereunder were treated by the Court to be in the nature of sale of natural resources and thus part of economic policy entailing intricate economic choices having direct impact on macroeconomics of the nation. Thus, in issues concerning computation of royalty, the legislature must be allowed to have greater play in the joints. Accordingly, it was held that mere exclusion of royalty, and contributions towards DMF and NMET paid previously for coal but not for other minerals cannot be termed as arbitrary or unreasonable, merely because the computation for one differs from the other in certain aspects.

The computation methodology cannot be treated in excess of the powers or domain of the respondents or in breach of any statutory provisions.

Course correction of anomaly suggested by the Court

The Court though repelled the challenge to the constitutional validity of explanations to both Rule 38 of the MCR, 2016 and Rule 45(8)(a) of the MCDR, 2017, however took note of the fact that legislature itself acknowledged the anomaly in the computation methods laid down under the MMDR Act for the purposes of computation of average sale price of any mineral. Referring to the judgment of Tata Steel Ltd. v. Union of India¹⁸⁸, Court underscored that categorisation of coal on a different pedestal from other minerals under the MMDR Act was earlier shunned and held that Rules framed under the MMDR Act must be applicable to all types of minerals which includes coal. Therefore, different mechanism for computation of royalty for coal and other minerals is not based on any fine distinction between the two, but rather on an anomaly in the MCR, 2016 and MCDR, 2017, for looking into which already a committee stands constituted and has proposed amendments for rectifying the same. The respondents were therefore granted one last opportunity to seriously consider and review the mechanism of computation of average sales price for determining the purposes of rate royalty for all other minerals and take a well meaningful decision at the earliest. Referring to the judgments of State of Jharkhand v. Brahmputra Metallics Ltd.¹⁸⁹ and Ramana Dayaram Shetty v. International Airport Authority of India¹⁹⁰, it was stated that deprivation of entitlements of private citizens and private business must always be proportionate to the requirement grounded in public interest. The policy statements cannot be disregarded unfairly or applied selectively. Thus, once the respondents have themselves initiated a public consultation and exercise of introspection for amendment of the relevant provisions of the MMDR Act and the Rules framed thereunder, they were held to be duty-bound to rectify the anomaly so existing by taking a prompt decision in the said regard. Referring further to the judgment of Narottam Kishore Deb Varman v. Union of India¹⁹¹, it was stated that even though the provisions may not be declared unconstitutional, the Government may be called upon to examine if the provision was to be allowed to continue for all times to come. The validity of the provision wears out with the passage of time and may later become open to a serious challenge with the passing of the time.

The Court may always require the Government to consider seriously whether it is necessary to allow Section 87-B of the Code of Civil Procedure,1908 ¹⁹² to operate prospectively for all the time, considering that with the passage of time the validity of historical considerations on which any provision is founded or enacted wear out in continuance of said section becomes open to serious challenge. Referring further to the judgment of H.H. Shri Swamiji of Shri Amar Mutt v. HRCEC¹⁹³, the Court stated that legislature can always be called upon to look into the issue of a statutory provision becoming outdated and perpetuating inequality by virtue of its operation, lest the said Act/provision suffers a serious and successful challenge in the not-so-distant future.

Accordingly, in conclusion, the respondents were granted a period of two months from the date of the judgment to conclude the process of public consultation undertaken for amending the MMDR Act and take a final decision in regard to the cascading impact of royalty on royalty in the calculation of the average sale price by virtue of the impugned Explanations to Rule 38 of the MCR, 2016 and Rule 45 of the MCDR, 2017.

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(12) Ramkrishna Medical College Hospital & Research Centre v. State of M.P.¹⁹⁴

(Delivered on 7-11-2024)

Coram: 2-Judge Bench of B.R Gavai and K.V. Viswanathan, JJ.

Authored by: K.V. Viswanathan, J.

The appellants challenged the order of the High Court, whose seats were left vacant after conclusion of the counselling in view of the interim orders of the High Court, which directed them to keep the seat vacant during the pendency of the writ petition. Thereafter the principal writ petition was dismissed, leaving the colleges high and dry; the seat going vacant for the whole MBBS course. The colleges thus prayed for passing over the vacancy in the next academic year to be filled through counselling over and above the existing intake. The appellant colleges were thus caught in the crossfire, where because their seat was kept on hold by virtue of the High Court’s interim order and eventually the writ petition was dismissed, the seat was left vacant irreversibly after the conclusion of the counselling. The primary grievance was that the consequential loss had befallen solely on them due to the act of the Court.

The facts in short were that a writ petition was referred challenging the Mukhyamantri (Chief Minister), scholarship programme introduced by the State, in which an interim order of the High Court directed both the appellant colleges to keep a seat vacant. However later on the aforesaid scholarship scheme was affirmed being a policy decision and challenged to its constitutionality repelled by the High Court. The High Court also rejected the plea of the college holding that no relief can be granted qua the unfilled seats, since timeline for admission was complete and the college was left with no option but to keep the seat vacant for the whole course.

The Court therefore framed the solitary question for consideration as to whether a direction can be issued to the respondent authorities to create a compensatory super-numerary seat in the ensuing/succeeding academic year for the institution.

The Court found that interim order passed by the High Court directing the seats to be kept vacant was a cryptic order, where none of the three factors existing for the grant of interim order were discussed. There is no reflection as to how High Court arrived at the prima facie assessment of the case warranting interim protection in favour of the candidate concerned. The Court further stated that seats falling vacant in any particular year cannot be carried forward or created in the succeeding year. Referring to the judgment of Faiza Choudhary v. State of J&K¹⁹⁵, it was stated that in rare and exceptional circumstances, Courts can direct increase in seats for the same academic year, when there is no fault attributable to the candidate or on finding that fault lies on the part of the authorities entirely. Referring to the judgment of S. Krishna Sradha v. State of A.P.¹⁹⁶, the Court further stated that it can always mould the relief and direct admission to be granted in the next academic year, but such a relief can be granted only in exceptional cases and in rarest of rare case.

Referring to the judgment of Index Medical College, Hospital & Research Centre v. State of M.P.¹⁹⁷, the Court stated that at the same time keeping seats vacant results in huge financial loss to the college apart from being a national wastage of resources. The power to pass orders directing seats to be kept vacant therefore must be passed with great caution and circumspection and not as a matter of routine. The security is to guarantee that in the event of dismissal of the writ petition/appeal, the seat goes unfilled, and the incidence of financial loss falls on the shoulders of the institution concerned. It was therefore directed that endeavours must be made by the Court to dispose of the matter/writ petition before the counselling for admission gets over. There must be safeguards essentially devised to restitute the colleges which suffer for no fault of theirs, but because of orders passed by the Constitutional Courts. Referring to the judgments of Indore Development Authority v. Manoharlal¹⁹⁸ and Bhupinder Singh v. Unitech Ltd.¹⁹⁹, the Supreme Court stated that courts should always be mindful to neutralise the effect of wrong interim orders which they have been persuaded to pass and the principle of restitution applies equally to interim orders as it applies to final judgments/orders. Referring further to the judgment of Kalabharati Advertising v. Hemant Vimalnath Narichania²⁰⁰ and the maxim actus curiae neminem gravabit, it was stated that orders of restitution must be passed in favour of the party, which has suffered for no fault of it. The colleges in the present case were admittedly found to have been gravely prejudiced for no fault of theirs and their seats going vacant for the whole duration of the course. Not only they have been deprived of the fees, but also their expenditure shall continue to remain the same.

Accordingly, in the special facts of the case, the Court directed the Fee Fixation Committee/Authority of the State to reckon the deficit in fees that has resulted due to the single seat going vacant and fix the fees in the successive years by adding such amount to the total fees proposed to be fixed in a manner which will restitute the colleges monetarily for the losses suffered by them. To neutralise the effect of the interim orders passed by the High Court, which operated to the prejudice of the colleges, it was directed that the loss suffered financially every year must be set back qua the expenses made every year.

Accordingly, the appeals were partly allowed, and the Fee Fixation Committee/Authority was directed to resolve the grievances of the appellants of meeting the financial losses suffered by them.

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(13) Directions in the Matter of Demolition of Structures, In re²⁰¹

(Delivered on 13-11-2024)

Coram: 2-Judge Bench of B.R. Gavai and K.V. Viswanathan, JJ.

Authored by: Justice B.R. Gavai, J.

An important question was answered by the Supreme Court, viz. —whether the executive should be permitted to take away the shelter of a family or families as a measure for infliction of penalty on a person who is accused under our constitutional scheme or not arises for consideration.

The judgment opened with the celebrated remarks of Lord Denning in Southam v. Smout²⁰², which read thus:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement. So be it — unless he has justification by law.

The Court clarified at the outset that the scope of all the petitions before it was limited to, and concerning only to demolition of properties of the persons who were accused of committing certain crimes or even convicted for commission of criminal offenses (bulldozer action).

Rule of law

The Court referring to the concept of rule of law as conceptualised by A.V. Dicey²⁰³, stated that it has three postulates:

(1) “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land”, as contrasted to “the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”; (2) “no man is above the law”, and that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”; and (3) “the predominance of the legal spirit” or that “the general principles of the Constitution … are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”.

The Court elaborated that the essential purpose of the rule of law is to prevent the abuse of power, an umbrella concept to protect citizens against the mighty power of the State, integral to and necessary for democracy and good governance. Referring to, Michel Rosenfield, “The Rule of Law and the Legitimacy of Constitutional Democracy”, (2000) 74 S. Cal. L. Rev. 1307, the Court stated “That is the law. And no Spartan, subject or citizen, man or woman, slave or king, is above the law. Wherever law ends, tyranny begins”. Referring to the judgment of Indira Nehru Gandhi v. Raj Narain²⁰⁴, the Court held that rule of law is part of the basic structure of the Constitution of India. It is the duty of the Court to be vigilant against State action that threatens to upset the fine balance between the power of the State and the rights of citizens and to safeguard the liberties that inhere in them. Referring further to the judgments of Bilkis Yakub Rasool v. Union of India²⁰⁵ and Rojer Mathew v. South Indian Bank Ltd.²⁰⁶, it was stated that the judiciary is the guardian of the rule of law and the central pillar of democratic State. Rule of law acts as a safeguard against the arbitrary use of powers by the State, to ensure predictability and stability, to ensure that individuals know that their life, liberty, their property will not be taken away from them arbitrarily and abusively. The processes enshrined in constitutional law, criminal law, and procedure are facets of the rule of law, that regulate and control the exercise of executive power.

Separation of powers

Referring to the Constitution Bench judgment of Indira Nehru Gandhi case²⁰⁷, it was stated that though the Constitution of India does not recognise any rigid separation of powers, but yet provides a fine balance between the three organs, bereft of which a democratic Government will be destroyed. Referring further to the Constitution Bench judgment of I.R. Coelho v. State of T.N.²⁰⁸, it stated that separation of power leads to “prevention of tyranny” and rule of law cannot exist if legislative, executive and judicial powers are all vested in one organ. It is also a part of the basic structure of the Constitution, being inherently connected to equality before the law and rule of law. The duty to decide whether laws have been violated are therefore entrusted to the judiciary, which is the sole repository of adjudicatory functions of the State. The officers of the State Government therefore cannot take up on themselves the adjudicatory functions, by inflicting punishment of demolition of their properties on any person undergoing a trial. Such a situation is wholly impermissible under the constitutional setup, wherein the executive cannot replace the judiciary in performing its core functions.

Doctrine of public trust and public accountability

Court further held whenever the executive transgresses its powers and acts as a Judge and demolishes structures without following the procedure prescribed by law, it defies the public trust reposed in it by the citizens of the country. Referring to the judgments of Delhi Airtech Services (P) Ltd. v. State of U.P.²⁰⁹, the Court stated that the well-established precepts of public trust and public accountability are fully applicable to functions which emerge from the public servants or even the persons holding public office. The expectation of timely and just performance of duty is higher as compared to the cases where the power is executively exercised in discharge of its regular business. There should be always faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed. Doctrine of “full faith and credit” applies to the acts done by the executive, whilst requiring that any executive action by any officer in the discharge of his duty should not lack bona fides. Court thus held that if the executive is allowed to demolish the houses arbitrarily only on the ground that the citizen is accused of a crime, then all such public officials, who take the law in their hands should be made accountable and responsibility must be fastened upon them.

Rights of the accused under the Constitution

Any person, whether accused undertrial or convicts have a right to dignity and cannot be subjected to any cruel or inhuman treatment. The punishment awarded to such person has to be in accordance with law, which cannot be inhuman or cruel. Referring to the judgments of Sunil Batra v. State (UT of Delhi)²¹⁰ and Sukanya Shantha case²¹¹, the Court reiterated that the right to live with dignity extends to even the incarcerated. Not providing dignity to prisoners is a relic of the colonisers and pre-colonial mechanisms where oppressive systems were designed to dehumanise and degrade those under the control of the State. Even the accused or the convicts are entitled for protection of their rights and safeguards in the form of constitutional provisions and criminal law. The State or its officials cannot be allowed to take excessive measures against the accused or for that matter even against the convicts without following the due process as sanctioned by law, for which there should be an institutional accountability. No officer should be spared for any illegal, arbitrary, mala fide exercise of power by him.

Presumption of innocence and natural justice under criminal law

Court then held that fair trial is essential in upholding the rule of law and protecting individual liberties, which also ensures that principles of natural justice and fair process are being strictly followed. Any accused cannot be declared guilty, unless proven so beyond reasonable doubt before a court of law. Therefore, if a citizen’s house is demolished merely because he is an accused or even for that matter a convict, without following the due process as prescribed under law, it is totally unconstitutional for multiple reasons:

(i) firstly, the executive cannot declare any person guilty, as this process is of the fundamental aspect of judicial review;

(ii) secondly, if any property/properties of such an accused person is demolished without following the due process of law, then it strikes at the basic principles of fairness, wherein an executive becomes a Judge, jury and decides that the person accused is guilty and starts punishing him by demolishing his properties;

(iii) thirdly, the chilling sight of a bulldozer demolishing any building reminds one of a lawless state of affairs where “might is right”. Therefore, only because the person is accused of committing some crime or even convicted cannot be inflicted punishment of demolition of the property/properties.

Right to shelter under Article 21 of the Constitution of India

The demolition of property of the accused not only affects him individually, but also the whole family living under the said roof. Stating that a pious father may have a recalcitrant son and vice versa, demolition of the house therefore punishes even those persons who have no connection at all with the crime. Thus, it amounts to violation of the right to life guaranteed under the Constitution of India. Referring to the judgment of Chameli Singh v. State of U.P.²¹², the Court reiterated that the right to shelter therefore does not mean a mere right to roof over one’s head, but right to all the infrastructure necessary to enable them to live and deserve and develop as a human being. The State to the contrary is under an obligation vide the Directive Principles of State Policies (“DPSPs”) to secure suitable shelter to its citizens. Depriving any person of his right to life by removing shelter from their heads is wholly unconstitutional. The Court then held that even when properties maybe illegally developed/constructed, when a particular structure is chosen all of a sudden for demolition, whilst leaving out the rest similarly situated structures in the same vicinity, mala fide on the part of the executive may loom large and arbitrary pick and choose of the structures by the authorities leads to presumption that real motive for such demolition proceedings was not the illegal structure per se, but an action of penalising the accused without being tried before the court of law.

Construction of house has an aspect of socio-economic rights. The socioeconomic rights, whereunder for an average citizen a house is not just a property but embodies the collective hopes of a family or individuals for stability, security and a future. If it is taken away, then clearly it amounts to denial of a sense of dignity and a sense of belonging.

Conclusions and directions

Accordingly, in view of the foregoing discussion, the Court issued certain directions under Article 142²¹³ of the Constitution of India. However, it was made clear that the directions were not applicable if there is an unauthorised structure in any public place, such as road, street, footpath or any other river bodies or water bodies, but only to cases where demolition is precipitated owing to the person being accused of an offence. Following directions were broadly issued against arbitrary demolitions, viz:

(a) properly worded notice with all the nature and details of the specific violations and grounds of demolition must be communicated to the owner with a sufficient time to file his reply to the said notice;

(b) the Designated Authority must give an opportunity of personal hearing, with due recordings of the minutes of such hearing to the person concerned;

(c) upon hearing, a final speaking order has to be passed by the Designated Authority indicating whether the unauthorised construction is compoundable and the details of the non-compoundable construction must be properly mentioned in the order;

(d) as to why extreme step of demolition is the only option available, as opposed to other options of compounding and demolition of only part of the property being not suitable be also reflected in the said order;

(e) opportunity for availing the appellate remedies to the owner of the property and permitting judicial scrutiny of the final order;

(f) the proceedings of the demolition must be videographed, with a demolition report being prepared by giving the list of police officials and civil personals that participated in the said exercise; and

(g) if demolition is found to be in violation of the Court orders, officer/officers concerned shall be held personally responsible for restitution of the demolished property at his/their personal cost.

Accordingly, the directions were issued at length by the Supreme Court against arbitrary demolitions of properties owned by person accused in criminal offenses.

***

(14) Tinku v. State of Haryana²¹⁴

(Delivered on 13-11-2024)

Coram: 3-Judge Bench of Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih, JJ.

Authored by: Augustine George Masih, J.

In this case, an appeal was preferred by the appellant, son of a deceased constable in the Haryana Police who died while serving on duty in the year 1997. The appellant was seeking appointment on compassionate grounds in place of his father who died when he was 7 years of age, and then the policy dated 8-5-1995 was applicable, which provided ex gratia appointment to Classes III and IV posts. The widow of the deceased constable, being illiterate, could not seek appointment for herself and therefore she applied for a compassionate appointment for her son. A letter communication was received by the Superintendent of Police (“SP”) from the Director General of Police (”DGP”), Haryana with the direction to enter the name of the appellant’s son in the Minor’s Register No. 47. This showed an intention of the authorities to grant a post to the appellant on his attaining majority.

As appellant was a minor then, the claim was kept pending and a further letter communication was received by the mother of the appellant from the SP, Rohtak stating that, on attainment of majority the appellant son may approach the Office of Welfare Inspector to get the case prepared. After the appellant attained the majority, he approached the DGP by way of representation, putting forth his claim for appointment under the ex-gratia scheme. After around 6 months of the representation, a communication was received by SP, Rohtak intimating both the mother and the appellant that the claim for appointment on compassionate ground has been rejected for the reason that 11 years had passed after the death of the father of the appellant, and that the claim has become time-barred as per the policy.

The grounds taken for rejection was that as per the Government instructions issued in the year 1999, in case where there is a minor dependent of the deceased government employee, he must attain majority within a period of 3 years from the date of death of that government employee. It was further stated that as per the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006²¹⁵ ( “Rules of 2006”), there was no provision provided for giving an appointment under the ex-gratia scheme.

The appellant filed writ before the High Court and the plea of promissory estoppel but was dismissed by the High Court. The appellant preferred a writ appeal in intra-court appeal, on the ground of promissory estoppel, but both were dismissed.

Equity cannot be extended negatively without a legal basis

The Bench stated that as per the existing policy, on attaining majority the appointment on compassionate grounds could have been granted prior to 22-3-1999, with an outer limit of 3 years of attaining majority from the date of death of the deceased government servant. It was further stated that the claim was made without support of any statute or law, required for making any such claim. If such a benefit has been conferred wrongly being contrary to this scheme, then it would defeat the principles that govern such schemes.

Referring to the judgments of Shanti Sports Club v. Union of India²¹⁶, State (UT of Chandigarh) v. Jagjit Singh²¹⁷, R. Muthukumar v. TANGEDCO²¹⁸ and Basawaraj v. LAO²¹⁹, the Bench held that no direction can be issued mandating the State to perpetuate any illegality or irregularity committed in favour of any individual, contrary to the policies and instructions applicable to the scheme. It further stated that the idea of equality behind Article 14 is a concept “clothed in positivity” based on law, which can be invoked to enforce a claim having sanctity of law and that the Court will not compel an authority to repeat any illegality conferring wrongful right or claim on someone who is not entitled for such claim. It is further stated that if such claims are entertained and directions are issued, then that would be against the tenets of justice resulting in lawlessness.

Appointment on compassionate grounds is not a vested right

The Bench observed that appointment on compassionate grounds is given after a proper and strict scrutiny is conducted on various parameters with the purpose to bring the family out of sudden financial destitution which occurred due to the loss of the sole bread earner. The benefit is provided in the form of employment to a member of the family to be able to meet the crisis, and this shall in any case be subjected to the claimant fulfilling the requirements as per the policy, instructions and rules formulated for such appointment. The Bench clearly stated that in any case where there is no policy, instruction or rule providing for an appointment on compassionate grounds, such appointment cannot be granted.

The Court also stated that compassionate appointment is not a vested right and the 1999 policy instructions issued by the Governments of Haryana were justified and logical. The appellant attaining majority, 11 years after the unfortunate death of his father has made the claim of compassionate appointment time barred. Thus, the Bench refused to interfere with the decision of the High Court in the impugned judgment.

However, the Bench took into consideration that the claim of the appellant and his mother was pending consideration for 11 years, and the rejection came in the knowledge of the appellant after the decision communicated by the DSP in 2009, rejecting the claim of appointment on the basis of the same being time-barred. The Bench considered that the appellant could not take the benefit of compensation or monthly financial assistance provided in the 2006 Rules, due to the reason that they were dependent on the claim of the compassionate appointment till the date of rejection.

It was an admitted factual position that the period during which the claim of employment of the appellant was pending, she did not opt for the benefit for lump sum ex-gratia compensation. The Court also considered that the Government of Haryana gave “mercy chance”, a one-time measure to exercise options for ex gratia compensation in 2011 related to old claims before 2006. It was also an admitted fact that the scheme of the Government was never brought to the notice of the appellant’s mother regarding the exercise of such an option. Had she been informed, she could have applied for the ex-gratia compensation, and the inaction on the part of the State in intimating her of her entitlement is the reason for her having not opted for it.

Extended the relief for default of the State

The Court, after taking all these admitted facts into consideration, granted one opportunity to the appellant and his mother to make a representation for exercising the option for the grant of lump sum ex gratia compensation to the Government of Haryana. It was stated that such representation shall be considered by the competent authority, and the decision shall be taken within a period of 6 weeks from the date of receipt of the representation.

***

(15) Sonu Agnihotri v. Chandra Shekhar²²⁰

(Delivered on 22-11-2024)

Coram: 2-Judge Bench of Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih, JJ.

Authored by: Abhay S. Oka, J.

In this case the appellant was serving as an Additional District and Sessions Judge in Delhi Judicial Services. The appellant preferred appeal for expunging adverse findings/remarks accorded against him under the impugned orders passed by the Delhi High Court. The impugned orders contested were firstly, the order passed by the Delhi High Court making adverse findings/remarks against the appellant; and, secondly, the order by which the application of the appellant to expunge those remarks was rejected by the High Court.

The appellant while exercising his judicial duty, rejected an anticipatory bail application on merits while making certain adverse observations about the conduct of the police officers in relation to the conduct of investigation and issued certain directions. Along with that, the appellant issued show-cause notice through Deputy Commissioner of Police (DCP) to the Station House Officer (SHO) and the investigating officer (IO) under Section 177²²¹ IPC for furnishing false information to the Court. After that on non-action of DCP, further orders were passed observing that there is “something fishy” in the investigation and directed the Commissioner of Police, Delhi to conduct a vigilance inquiry against the IO and SHO of Defence Colony Police Station while dropping the show-cause notice against them.

The respective IO and SHO filed a petition before the High Court for expunging the remarks made against them under both the orders and prayed before the Court to set aside the directions issued to the Commissioner of Police (COP), Delhi to hold vigilance inquiry against them. The High Court, through its order expunged all the remarks made in both the orders passed by the appellant and recorded adverse findings/remarks against the appellant using expressions, such as “embarked on an inexorable quest”, “beyond the ken of expected judicial concern” and “judicial misadventure”.

The appellant approached the High Court, wherein a short reply was filed on behalf of the High Court placing reliance upon Rule 6, Part H, Chapter I of Volume III of the High Court Rules and Orders. Rule 6 provided that it is undesirable for courts to make remarks censuring the action of police officers unless such remarks are strictly relevant to the case. The Court observed that prima facie this rule itself interferes with the judicial discretion available to the Judges. It was further stated that the Rule Committee of the High Court had approved the deletion of Rule 6 and the approval of the Governor had also been sought for the deletion of this Rule.

Referring to the observations made with respect to expressing opinions and demeanour of Judges and Magistrates while exercising their judicial functions, in State of U.P. v. Mohd. Naim²²² and ‘K’, A Judicial Officer, In re²²³, Court observed that the power to express opinions by the Judges and Magistrates must be exercised with fair-play and restraint. It further stated that the judicial pronouncements made in judicial capability must be judicial in nature and should not normally depart from sobriety, moderation and reserve and the same characteristic must be reflected in every action and expression of a Judge.

Propensity must be to prevent repetition of errors

The Court further stated that the High Court, over the members of subordinate judiciary, has administrative, judicial as well as disciplinary control and the powers so vested must not be exercised solely in cracking a whip on errors, mistakes or failures of the subordinate judiciary and should be so wielded as to have propensity to prevent repetition any error or mistake committed innocently or unwittingly. The High Court in its opinion believed that an error had been committed by the member of the subordinate judiciary; it could have dealt with it through an administrative action without bringing it in public domain through an order of the High Court. The Court further observed that the existence of power in higher echelons of judiciary to make observations extending to criticism incorporated in judicial orders exist but at the same time, the High Courts have to remember that criticisms and observations incorporated in judicial pronouncements, touching a subordinate judicial officer have their own mischievous infirmities.

Administrative action was the alternative

The Court after taking into consideration all the submissions held that the High Court has the power to exercise supervisory jurisdiction over the subordinate courts, but such jurisdiction should not be exercised in a manner to condemn the conduct of the judicial officer in public. The Court outlined the adverse impact of such findings/remarks before expunging the comments made by the High Court. They are as follows:

Firstly, passing of such findings/remarks by the High Court against a subordinate member of the same judicial system, condemning unheard without allowing him minimal natural justice which the whole judicial system, including the Subordinate Judge, is bound to protect and adjudicating upon to provide it to the general public.

Secondly, the harm caused by the pronouncement of such criticism of the conduct of a Subordinate Judge by the supervisory court cannot be undone. The Subordinate Judge may himself regret making such observations, the adverse effect of which on the administrative side would overshadow his overall meritorious performance.

Thirdly, such kind of criticism of a judicial officer by a member of the higher judiciary gives the litigating party a sense of victory, not just over the opponent but also over the Judge who has decided the case against him. This is subversive of the judicial authority of the deciding Judge.

Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition reduces him to the status of a litigant arrayed as a party before the High Court or the Supreme Court, a situation that may be embarrassing as he has to take assistance of a legal practitioner who may be once practicing before him.

And lastly, the possibility of a single or casual aberration of an honest, upright and righteous Judge being caught unaware in the net of adverse observations in a single case having a serious demoralising effect over the whole subordinate judiciary.

The Court stated that alternative course of action should have been taken, by dealing it administratively or through in-office proceedings or by inviting attention of the Chief Justice to the facts separately, so that the judicial officer would have been fairly inquired and would not be condemned unheard, even if the final decision would have come against him.

The Court finally stated that if by simply overlooking and choosing an alternate course of action, and by not commenting or making observations on the “conduct” of the subordinate judicial officer who decided the case after scrutiny, if the abovementioned adverse effects can be avoided, efforts should be made to avoid it.

Orders can be criticised not the judicial calibre

The High Court has jurisdiction under Article 227²²⁴ of the Constitution and Section 482²²⁵ CrPC to correct the errors committed by the subordinate courts. The Court observed that they are referred to subordinate courts only in context of appellate, revisional and supervisory jurisdiction. The superior courts may legitimately set aside the erroneous orders passed by them and may criticise the orders passed by the trial courts or the appellate courts through proper reasoning. The criticism should only be of the errors committed and no adverse comment on the personal conduct or the calibre of the judicial officer should be made. There is a difference between criticising erroneous orders and making personal comments on a judicial officer. Such personal criticisms on the members of subordinate judiciary not just adversely affects the career of a judicial officer but also sometimes leave permanent scars on the functioning of subordinate judiciary.

The Court finally stated that personal criticisms of Judges or recording findings on the conduct of the Judges and their judgments must be avoided and passed directions to expunge the remarks made against the appellant stating that such remarks will not bind any decision to be taken on the administrative side of the High Court.

***

(16) State of A.P. v. Rao, V.B.J. Chelikani²²⁶

(Delivered on 25-11-2024)

Coram: 2-Judge Bench of Sanjiv Khanna and Dipankar Datta, JJ.

Authored by: Sanjiv Khanna, J.

The appeal arose from the Andhra Pradesh High Court, wherein allotment of land parcels in Hyderabad to various cooperative societies composed of members of various groups including Members of Parliament (MPs), Members of the Legislative Assembly (MLAs), Judges, Indian Administrative Service (IAS) and Indian Police Service (IPS) officers were invalidated. The High Court also quashed the Government Orders in Memorandum Form (GOMs) that laid down the allotment policy and facilitated allotments of land parcels to the cooperative societies. The High Court further directed that lands allotted to the respondents were to be restored back to the Government and thereafter for fresh allotments to eligible cooperative societies as per a newly framed policy.

Facts of the case

In February 2005, the Government of Andhra Pradesh (“GoAP”) issued three GOMs, whereunder provisions were made for distribution and management of land resources in urban and semi-urban areas. It was stipulated to grant land to “deserving sections of the society” for independent housing sites in areas where such housing schemes were prevalent and for the construction of flats in regions where flats were established. It is in these GOMs that provisions were made for allotment of lands to cooperative societies of MLAs, MPs, Judges, IAS and IPS officers and other privileged classes. Accordingly, in the view of the aforesaid GOMs, government land to the extent of 245 acres were allotted in favour of MLAs, MPs, Judges, IAS and IPS officers, journalists and other such privileged classes. The High Court through the impugned judgment as stated supra not only quashed the allotments, but also the GOMs, which permitted allotment to such privileged classes.

Consideration of objection of res judicata and constructive res judicata

The High Court had rejected the objections of the writ petition being barred by res judicata and constructive res judicata raised on behalf of the cooperative societies and the State Government. Tracing the roots of the said doctrine, Court referred to the judgments of State of Karnataka v. All India Manufacturers Organisation²²⁷ and V. Purushotham Rao v. Union of India²²⁸. It was held that Explanation (IV) to Section 11²²⁹ CPC mandates that any matter that might or ought to have been made a ground of attack in a former suit is deemed to have been made a matter directly or substantially an issue in the said suit. Where the parties have had an opportunity of controverting a matter, that should have been taken to the same thing as if the matter had been actually controverted, then Explanation (IV) to Section 11 is attracted. Referring further to the judgments of National Confederation of Officers Assn. of Central Public Sector Enterprises v. Union of India²³⁰ and Rural Litigation and Entitlement Kendra v. State of U.P.²³¹, the Court stated that in public interest litigations (PILs) however such a defence is not easily available, and matters involving grave public importance should not be dismissed lightly on the technicalities in procedural law by entertaining the plea of res judicata. As long as the litigation is bona fide, judgment in a previous PIL is a judgment in rem and binds the public at large from raising any connected issue or an issue which ought to have been raised and agitated in the previously instituted PIL. The Supreme Court accordingly held that in the case at hand res judicata will certainly not apply as the previous judgment of the High Court did not examine the constitutional validity of various GOMs, based on which allotments were made to the cooperative societies and their members. The principles of constructive res judicata should not have been applied given the significant public interest at stake in the PILs. Moreover GOMs Nos. 243 and 244 were never challenged in the previous litigation, but what was challenged were only the allotments. Therefore, fetters cannot be placed on the public at large against challenging the GOMs Nos. 243 and 244. Constructive res judicata applies only when the cause of action is identical and it should be closely examined whether the two litigations were on the overlapping and similar issues with similar reliefs.

Constitutional validity of impugned GOMs

The Court then proceeded to examine the core issue at hand, viz. the generosity exercised by the State in distributing invaluable public resources of land in the State of Telangana. The exercise of such “generosity” or “discretion” has significant implications for the citizenry and the functioning of the democracy. The Court post the question to itself — “can the Government, like any private individual, have the absolute discretion to frame policy, distribute resources and enter into a contract with whomsoever it pleases, on any terms and conditions it so desires?”

Referring to the judgments of Erusian Equipment & Chemicals Ltd. v. State of W.B.²³², Ramana Dayaram Shetty v. International Airport Authority of India²³³, Common Cause, A Registered Society (Petrol pumps matter) v. Union of India²³⁴ Shrilekha Vidyarthi (Kumari) v. State of U.P.²³⁵, Court reiterated the following propositions:

(a) Government cannot act like a private individual, which can pick and choose the person with whom it will deal. When the Government is trading with the public, the democratic nature of the Government demands equality coupled with an absence of arbitrariness and discrimination in such transactions, which must be conducted with utmost fairness and equality.

(b) Wherever the Government is dealing with the public, whether by way of giving jobs, entering into contracts, issuing quotas, licences or granting any other form of largesse, Government cannot act arbitrarily at its sweet will, but all these grants of largesse must be confined and structured by rational, relevant and non-discriminatory standard or norm.

(c) Benefits being provided by the Government in the form of houses, petrol pumps, gas agencies, mineral leases, contracts, quotas and licences must be done in a fair and just manner and should not be reflective of breach of public trust reposed in the Government.

(d) There is no concept of absolute discretion of the administrative authorities and immunity of their action from judicial review. Contracts where the bargaining power is unequal, so that these are not negotiated contracts, the unreasonableness of such terms in the contracts can always be examined. If the Government policy or any action of the State, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.

The Court then subsequently posed to itself a second question — “how do we ascertain whether a State policy or executive action has violated the fetters imposed by Article 14? In other words, what are the tests applicable to evaluate the legality of State conduct in terms of Article 14? Do GOMs Nos. 243 and 244 dated 28-2-2005; GOMs Nos. 420, 422-425 dated 25-3-2008 and GOM No. 551 dated 27-3-2008 pass the constitutional muster?”

Reiterating the settled twin test under Article 14 of classification and rational relation with the object sought to be achieved by such classification, Court proceeded to observe that one more test for scrutinising the constitutionality of any executive action has evolved over the passage of time, viz. that the object itself (sought to be achieved by classification) should be lawful and cannot be discriminatory. The courts have avoided formalism/formalistic approach and have transitioned their view from an exclusive test of classification to a concurrent application of the doctrine of arbitrariness when actions are not grounded in valid reasons. Therefore, the ends/objective of classification cannot be entirely ignored, and the Court can always examine the legitimacy of the legislative object sought to be achieved. Referring to the judgments of State of J&K v. Triloki Nath Khosa²³⁶ and LIC v. Consumer Education & Research Centre²³⁷ classification must be demonstrably based on substantive difference and should promote relevant goals that have constitutional validity. In itself it must be just, fair and reasonable.

Referring further to the judgments of Ajay Hasia v. Khalid Mujib Sehravardi²³⁸ and A.L. Kalra v. Project and Equipment Corpn. of India Ltd.²³⁹, the Court held that unreasonableness of any law, policy or State action can be both relative and absolute. It may be premised upon a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment, whilst any action/policy can per se be arbitrary and such arbitrariness in itself constitutes violation of the equal protection under law. Referring to the judgments of National Legal Services Authority v. Union of India²⁴⁰ and Navtej Singh Johar v. Union of India²⁴¹, the Court stated that Article 14 has emerged to possess a substantive content, applying which the Court should examine impact of the law and whether the law or a policy adversely affects the members of a particular disadvantaged group disproportionately. The Court thus also examines non-classificatory arbitrariness. Over the years, therefore, there has been a discernible and marked shift from mere formal equality to the broader concept of substantive equality which encompasses various dimensions of the legitimacy of the objectives itself. Substantive equality prevails over formal equality.

The wider equality claim possesses two questions to any classification, viz. firstly, does the law creates distinction based on an enumerated or analogous ground; and secondly does the distinction creates disadvantage by perpetuating prejudice of stereotypes. Therefore, substantive equality is not compromised merely because a disadvantage is imposed, rather it stands denied when that disadvantage is unfair or objectionable.

The Courts therefore test not only the satisfaction of rigours of Article 14, but also whether the distinction/classification so created by the policy is not in itself illogical, unfair and unjust. Substantive equality is satisfied when the law or policy genuinely intends to and provides an equal chance of satisfying the criteria for access to a particular social or economic good. It factors in multiple aspects of inequality offering a multidimensional approach that allows the Court to address the interplay of various aspects of equality and equally accommodate differences instead of masking them with formal equality.

Applying the aforementioned tests of substantive equality, if it is found that if any policy results in indirect discrimination, viz. amounts to exclusion of disadvantageous individuals or groups based on protected characteristics with inequality of results and outcomes, or imposes additional obstacles for those requiring protection, then regardless of the classification it is violative of the equality clause.

Testing the impugned GOMs in the backdrop of above constitutional principles elucidated by the Court, it was held that the GoMs were never targeted towards the poor, but aimed towards other deserving sections of the society, to meet their housing requirements. The classification giving State largesse to Judges of Constitutional Courts, MPs, MLAs, journalists, bureaucrats amounted to favouring a privileged section of society which is already better off compared to the vast majority of marginalised and socio-economically disadvantaged individuals. The allocation of land at basic rates to select privileged groups therefore reflected a “capricious” and “irrational” approach, being a classic case of executive action steeped in arbitrariness but clothed in the guise of legitimacy. The GoMs are nothing, but an abuse of power meant to cater exclusively to the affluent section of the society, disapproving and rejecting the equal right to allotment of the common citizen and the socio economically disadvantaged. Government servants, bureaucrats, legislators, Judges and prominent journalists do not at all belong to the weaker or per se deserving sections of our society warranting any special State reservation to land allotment. Land is a finite and highly valuable resource, especially in densely populated urban areas and whenever the Government allocates land at discounted rates to the privileged few it engenders a system of inequality, which is otherwise inaccessible to the common citizen. This preferential treatment is relatable not because of the necessities of their public office or the public good, but simply because of their status and stature. Referring to the judgment of Ram & Shyam Co. v. State of Haryana²⁴², the Court stated that the State is under an obligation to sell public property only at the market price, with the sole exception of achieving a constitutionally recognised public purpose. Accredited journalists cannot be treated as a separate class as any preferential treatment to higher echelons of all the three wings of the Government/legislators, bureaucrats and Judges dilutes the constitutional idea of checks and balances amongst them. The distribution of such extraordinary State benefits renders nugatory the very optics of healthy checks and balances within a democratic system. The object of the policy behind the impugned GoMs therefore perpetuates inequality, by bestowing largesse to an advantaged section/group and bars simultaneously the more deserving as well as those similarly situated from access to the land at the same price. It promotes social economic exclusion to favour a small and privileged section/group. The State therefore cannot exercise discretion to benefit a select few elites disproportionately, especially ones who are already enjoying the existing benefits and advantages.

Conclusions and directions

Accordingly, in view of the aforesaid findings and discussion, the Court proceeded to dismiss the appeals preferred by the State, cooperative societies and the allottees. However, for restituting the cooperative societies and their members, it was held that they shall be entitled to a refund of the entire amount deposited by them, including the stamp duty and the registration fees to be quantified by the State of Telangana. The lease deeds executed by the State in favour of societies/members were treated as cancelled and the appeals were accordingly disposed of.

***

(17) C. Selvarani v. Special Secretary-cum-District Collector²⁴³

(Delivered on 26-11-2024)

Coram: 2-Judge Bench of Pankaj Mithal and R. Mahadevan, JJ.

Authored by: R. Mahadevan, J.

The appeal arose against the judgment of Madras High Court dismissing the writ petition preferred by the appellant relating to cancellation of her Scheduled Castes community certificate issued to her as per the Constitution (Pondicherry) Scheduled Castes Order, 1964²⁴⁴ (“SC Order, 1964”). The said certificate was cancelled on the ground that the petitioner was Christian by religion, being born to a father who had adopted Christianity by converting from Hindu to Christian. The petitioner to the contrary contended that though her father, parents and great grandparents professed Hindu religion and belonged to Valluvan caste recognised as one of the Scheduled Castes under the SC Order, 1964. Her mother was a Christian by birth and after marriage, she got converted to Hindu religion and started professing the same. Therefore, the petitioner was also Hindu by religion. The caste Scrutiny Committee rejected the appellant’s/petitioner’s contention on the ground that she does not profess Hinduism, Buddhism or Sikhism and therefore the caste certificate could have never been issued to her. The Court framed the solitary issue for its consideration “as to whether the appellant is entitled to the Scheduled Caste community certificate indicating that she belongs to the Valluvan caste, when she was found professing Christianity as a religion and no substantial proof of being converted to Hinduism”.

The Court found that there was no dispute that appellant’s father, appellant and her brother were in possession of the Scheduled Castes certificate issued by the competent authorities, not cancelled till date. The claim of caste certificate of the appellant however was rejected by the Scrutiny Committee, based on the report of the Village Administrative Officer (“VAO”), which demonstrated that appellant had embraced Christianity, which amounted to abdication of her original faith of Hinduism.

The Court held that report of the VAO was prepared after a detailed enquiry and through documentary exercise, which showed the appellant’s mother to be a Christian; their marriage being performed and registered as per Christian rituals and duly registered records maintained with the Church. Thereafter the appellant’s father also converted to Christianity, and on her birth the appellant herself was also baptised to follow the faith of Christianity. The Court thus returned the finding on facts that appellant is a Christian by religion who does not profess Hinduism. Referring to the proviso of Article 341²⁴⁵, the Court stated that benefit of caste would be available only if the person concerned is professing a benefit of belonging to a caste status as notified under the Presidential Order would be available only if the person concerned belongs to Hinduism, Buddhism or Sikhism. Referring to the judgments of State of Maharashtra v. Ravi Prakash Babulalsing Parmar²⁴⁶, and Food Corpn. of India v. Jagdish Balaram Bahira²⁴⁷, Court stated that whenever any person takes undue advantage of beneficial provisions of the Constitution for obtaining the benefits of reservation, he not only plays a fraud on the society, but also with the Constitution. A caste certificate granted to a person, not otherwise entitled, cannot leave the State as a helpless spectator. The field verification of the appellant clearly revealed that parents of the appellant got married and registered their marriage under the provisions of the Christian Marriage Act, 1872²⁴⁸, the baptism of the whole family suggests that they had been regularly attending the church. The appellant was thus a born Christian and could not be associated with any caste. Upon conversion to Christianity, one loses his/her caste and cannot be identified by it, which system is prevalent in Hinduism.

The Court also negated the claim of the appellant that she had reconverted herself to Hinduism, stating that no evidence exists of declaration of reconversion back to Hinduism, to the contrary the factual finding of the VAO reveal that the appellant still professes Christianity. Referring to the judgment of S. Rajagopal v. C.M. Armugam²⁴⁹, it was stated that the caste system prevails only amongst Hindus or possibly in some religions closely allied to the Hindu religion like Sikhism or Buddhism. Christianity across the world does not recognise caste division and, whose tenets militate against being divided or discriminated based on caste lines. It was further stated that on conversion to another religion (Christianity or Islam), person loses the membership of that caste and he can become the member of that caste only on reconversion to Hinduism, whereafter post reconversion he returns to the original fold, the person must be accepted by the caste as a general and without acceptance generally of the reconversion, by the members of the said community, the claim of return to Hinduism cannot be accepted.

The Court referring to Article 25²⁵⁰ of the Constitution of India also stated that whenever any person converts to a different religion, he/she does so being genuinely inspired by its principles, tenets and spiritual thoughts. However, if the purpose of the conversion is to largely derive the benefits of reservation but not with any actual belief on the other religion, the same cannot be permitted as the extension of benefits of the reservation to people with such ulterior motives only defeats the social ethos of the policy of reservation. The claim of the appellant of having reconverted back to Christianity was found to be only for the purposes of claiming the benefits of reservation and amounts to fraud on the Constitution. Accordingly, the appeal of the appellant was dismissed affirming the judgment of the High Court.

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

**4th year student, Dr Ram Manohar Lohiya National Law University, Lucknow.

1. Constitution of India.

2. Prevention of Money-Laundering Act, 2002.

3. Assam Value Added Tax Act, 2003.

4. Assam General Sales Tax Act, 1993.

5. Himachal Pradesh Town and Country Planning Act, 1977.

6. Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980.

7. Sale of Goods Act, 1930.

8. Air Corporations (Transfer of Undertakings) Act, 1954.

9. Bar Councils Act, 1926.

10. Advocates Act, 1961.