Judges

Know thy Judge

“A litigant has one lifetime yet litigation has several lives to live. If society stands denied of justice, we are not only failing our duty and constitution but are enslaving a generation of litigants. For speedy disposal effective docket management is required and is the need of the hour.”

-Justice Krishna Murari[1]

Born on 09-07- 1958, obtained LL.B degree from Allahabad University, Allahabad. He was enrolled as an Advocate on 23-12-1981. He practiced in the Allahabad High Court for over 22 years in Civil, Constitutional, Company, Service and Revenue matters and has specialized in Civil Revenue and Service cases. He was Standing Counsel of U.P. State, Yarn Company Limited, Kanpur, Northern Railway Primary Co-operative Bank Limited, U.P. State Textile Corporation Limited, Kanpur, U.P. Co-operative Spinning Mills Federation Limited, Kanpur and Bundelkhand University, Jhansi.

He was appointed as an Additional Judge of the Allahabad High Court on 07-01- 2004 and appointed as permanent Judge of the Allahabad High Court on 18-08-2005.

He took over as Chief Justice of Punjab and Haryana High Court, Chandigarh on 02-06-2018. Read more

Elevated as Judge of Supreme Court of India on 23-09-2019. Read more

Notable Supreme Court Judgments 

Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415

The 3-judge bench of AM Khanwilkar, BR Gavai and Krishna Murari, JJ has held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

Read more

Kalparaj Dharamshi v. Kotak Investment Advisors Ltd,  2021 SCC OnLine SC 204

The 3-judge bench of AM Khanwilkar, BR Gavai and Krishna Murari has explained the true test to determine whether a party has waived its rights or not. It has held that for establishing waiver, it will have to be established, that a party expressly or by its conduct acted in a manner, which is inconsistent with the continuance of its rights. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them.

“As such, for applying the principle of waiver, it will have to be established, that though a party was aware about the relevant facts and the right to take an objection, he has neglected to take such an objection.”

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Amit Sahni v. Commissioner of Police, (2020) 10 SCC 439

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”

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Kalparaj Dharamshi v. Kotak Investment Advisors Ltd, 2021 SCC OnLine SC 204

The 3-judge bench of AM Khanwilkar, BR Gavai and Krishna Murari has held that the commercial wisdom of Committee of Creditors (CoC) is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the Insolvency and Bankruptcy Code, 2016 (IBC).

Taking note of various decision of the Supreme Court, the Court held that the legislative scheme is unambiguous. The legislature has consciously not provided any ground to challenge the “commercial wisdom” of the individual financial creditors or their collective decision before the Adjudicating Authority and that the decision of CoC’s ‘commercial wisdom’ is made non-justiciable.

“… the appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.”

Read more

Amar Nath Chaubey v. Union of India, 2020 SCC OnLine SC 1019

The 3-judge bench of RF Nariman, Navin Sinha and Krishna Murari, JJ had IPS Officer Satyarth Anirudh Pankaj as the senior officer, State of Uttar Pradesh to carry out further investigation in the Ram Bihari Chaubey murder case after it found the investigation and closure report submitted by the UP Police to be “extremely casual and perfunctory in nature”.

Directing that IPS Officer Pankaj will be free to select a team of competent officers of his choice, the Court directed that

“the investigation must be concluded within a period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police (DGP), Uttar Pradesh shall do the needful.”

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Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1

e bench of NV Ramana, Sanjiv Khanna and Krishna Murari, JJ has overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.

Read more

Amar Singh v. State (NCT of Delhi), 2020 SCC OnLine SC 826

Giving benefit of doubt to the accused convicted under Section 302 IPC r/w Section 34 IPC, the 3-judge bench of SK Kaul, Anirudhha Bose and Krishna Muraji, JJ reiterated that Court can and may act on the testimony of single eye-witness provided he is wholly reliable.

“… the prosecution has miserably failed to prove the guilt of the accused beyond doubt the appellants therefore must be given benefit of doubt.”

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V.N. Krishna Murthy v. Ravikumar, (2020) 9 SCC 501

The issue before the Supreme Court was whether the appellants held the focus to question the judgment and decree passed by the trial court and whether the High Court was justified in rejecting their leave to appeal. Dismissing the appeal the Full Bench of L. Nageswara Rao, Krishna Murari and S. RavindraBhat, JJ., held,

“Section 96 and 100 CPC do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls in the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the appellate court.”

Sorathia Bindi v. State of Gujarat, 2021 SCC OnLine SC 419

In a case where the Gujarat High Court had stayed the arrest a person accused for offences under sections 376(2)(F), 376(2)(N), 377, 354(A), 354(D), 503, 506(1) and 509 of IPC and sections 66(E) and 67(A) of the Information Technology Act, 2000, the bench of BR Gavai and Krishna Murari, JJ has remitted the matter to the High Court and has asked to record the reasons in support of its order.

Read more

In Re Prashant Bhushan, (2021) 1 SCC 745

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ had, in a 108-pages long verdict, held advocate Prashant guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. It held,

“The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’.

Read more

In re: Prashant Bhushan, (2021) 3 SCC 160

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has sentenced advocate Prashant Bhushan with a fine or Re.1/­ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years. It had found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets.

Read more

Contagion of Covid-19 Virus in Children Protection Homes, In re, (2020) 15 SCC 289

Taking suo motu cognizance of the issue where 35 out of 57 children in a Protection Home at Royapuram, Chennai have been infected with COVID-19 and were hospitalized, the 3-judge bench of L. Nageswara Rao, Krishna Murari and S. Ravindra Bhat, JJ had asked the Health and Family Welfare Department, State of Tamil Nadu and secretary to Social Welfare Department to submit a report giving details of the reasons for the spread of COVID-19 in the said Protection Home.

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Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178

Under the Evidence Act, 1872 facts had to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts had to be established to account for the existence of primary evidence. Section 65 made it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it.

It was held that the appellants would be entitled to lead secondary evidence in respect of the will in question. However, such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with the law.

Nirmala Kothari v. United India Insurance Co. Ltd., (2020) 4 SCC 49

The question before the Court was that “What is the extent of care/diligence expected of the employer/insured while employing a driver?”

The Division Bench of Navin Sinha and Krishna Murari, JJ., answered that while hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.

The respondent insurance company was held liable to indemnify the appellant.

Arun Singh v. State of U.P., (2020) 3 SCC 736

The Division Bench of Navin Sinha and Krishna Murari, JJ., observed that offences relating to the demand of dowry are offences against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overriding effect of public interests in punishing persons for such serious offences. It is neither an offence arising out of commercial, financial, mercantile, partnership or such similar transactions or has any element of civil dispute thus it stands on a distinct footing. In such cases, settlement even if arrived at between the complainant and the accused, the same cannot constitute a valid ground to quash the FIR or the charge-sheet.

Yasmeen Zuber Ahmad Peerzade v. Union of India, (2020) 2 SCC 50 (1)

The Nation is looking forward to a historic judgment which is pending. It was placed before 3-judge bench of SA Bobde (retired), SA Nazeer and Krishna Murari, JJ. involving the Muslim Women right to pray in Durgah/Mosque. The Supreme Court will decide whether practices prohibiting the entry of women into mosques violates the right to equality under Article 14 of the Constitution and whether such a right can be enforced against non-state actors in view of the judgement of the Constitution Bench in the Sabarimala Temple Entry case.

†Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://www.youtube.com/watch?v=K2rNXRU5Aqw

Know thy Judge

“Publish at your own peril” appears to be the philosophy adopted by our country in the last few decades after Independence. But it appears that a number of countries, both developed and developing, have repealed Laws making defamation a Criminal Offence.”

– Justice V. Ramasubramanian

M. Nedunchezhian v. Bar Council of T.N., 2015 SCC OnLine Mad 5573

Justice V. Ramasubramanian was born on 30-06-1958 in Mannargudi. He did his schooling in Hindu High School at Triplicane. He passed B.Sc from Vivekananda College in Chennai and completed his LL.B. from Madras Law College.

♦Did you know? Justice Ramasubramanian has immense contribution to Tamil language. He has authored a book in Tamil on the principles of law and justice in Kamba Ramayana (Kambanil Sattamum Neethiyum). He also wrote a series of articles under the caption “Beyond science” (Ariviyalukku Appaal) in a Tamil newspaper for 27 weeks.[1]

♦Did you know? Justice Ramasubramanian added new vocabulary to the language of Tamil by running a column in a Tamil newspaper under the caption “Sol Vettai” for 50 weeks on the same lines as Barbara Walraff ran a column for Atlantic Times under the caption “Word Court and Word Fugitives.” Many readers of the newspaper got involved in this exercise and one of them was actually serving a life sentence in Puzhal Prison. As a mark of recognition of the involvement of a life convict in this exercise, the judge got the life convict out on parole for the Book release function and made the life convict sit on the dais with him and receive the first copy of the book.[2]

From an Advocate to a Supreme Court Judge

Justice V. Ramasubramanian enrolled as a Member of the Bar on February 16, 1983. He practised in High Court of Madras, City and Small Causes Court, State Consumer Commission and District Consumer Forum, Central and State Administrative Tribunals, Chennai. His mainly practised in Civil and Constitutional matters and was specialized in service matters.

Justice Ramasubramanian had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:

He was appointed as an Additional Judge of the Madras High Court on 31-07-2006 and became permanent Judge on 9-11-2009. He continued to serve in the Madras High Court until 2016, when he was transferred to the common High Court for Andhra Pradesh & Telangana.

♦Did you know? He was transferred on his own request to the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh with effect from April 27, 2016.[3]

♦Did you know? After the bifurcation and the creation of a separate High Court for the State of Andhra Pradesh, he was retained as a Judge of the High Court of Telangana at Hyderabad w.e.f. January 1, 2019.[4]

Justice Ramasubramanian was elevated as the Chief Justice of Himachal Pradesh High Court on 22-06-2019. He relinquished the charge on 23-09-2019 (forenoon) on being elevated as a Judge of Honourable Supreme Court of India.[5]

♦Did you know? At the time of his appointment as a judge of Supreme Court, Justice Ramasubramanian was at 42nd number in the nationwide seniority list. The Supreme Court collegium while recommending Justice Ramasubramanian said it “is conscious of the fact that in the seniority of judges hailing from the Madras High Court” he is in second position and after his appointment, “there will be two judges on the bench of the Supreme Court from the Madras high court.” [6]

Notable Judgments at Supreme Court

♦Did you know?  Justice Ramasubramanian recuses himself from hearing a plea of Kerala’s People’s Democratic Party (PDP) leader Abdul Nazir Maudany, who is an accused in the 2008 Bengaluru serial blasts case, seeking to allow him to go to Kerala and stay there till the trial is concluded.[7]

Internet and Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274

The 3-judge bench comprising of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ set aside the RBI circular that had prevented financial services from trading in crypto-currencies, such as Bitcoin and Ethereum.

According to Justice Ramasubramanian RBI’s circular had failed to demonstrate as how the virtual currency trading was causing harm to banks and other types of financial institutions.

Read more…

Kapico Kerala Resorts (P) Ltd. v. State of Kerala, (2020) 3 SCC 18

The 3-judge bench comprising of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ upheld a Kerala High Court order that had directed Kapico Kerala Resorts to cease encroaching land on Vaamika Island.

The Court held that the decision in Vaamika Island, (2013) 8 SCC 760 was rendered at the stage of special leave petitions and though the Court refused leave, it went on to affirm the findings of High Court, recording detailed reasons therefore. Further, the appellants cannot escape the findings recorded in the said case and once it is found that the main issues arose in common for both the islands and dealt with in common by High Court, had received a seal of approval from Supreme Court by a reasoned order. Further, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment.

Embassy Property Developments (P) Ltd. v. State of Karnataka, (2020) 13 SCC 308

In an important judgment with regards to the jurisdiction of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) to look into fraud in an Insolvency and Bankruptcy Code (IBC) proceeding, the 3-judge bench of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ held that the NCLT and NCLAT enjoyed the jurisdiction to look into fraud under Section 65 of the IBC.

The Court while deciding the second issue i.e. whether a High Court could interfere under Article 226/227 of the Constitution of India with a NCLT order in a IBC proceeding and thereby ignore the statutory remedy of appeal to the NCLAT, held that a High Court could interfere in instances where the NCLT had lacked the jurisdiction to entertain a proceeding in the first place.

“NCLT and NCLAT would have jurisdiction to enquire into questions of fraud, they would not have jurisdiction to adjudicate upon disputes such as those arising under MMDR Act, 1957 and the rules issued there under, especially when he disputes revolve around decisions of statutory or quasi ­judicial authorities, which can be corrected only by way of judicial review of administrative action.”

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

While interpreting Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of R.F. Nariman*, S. Ravindra Bhat and V. Ramasubramanian**, JJ held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

Read more…

Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296

“National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.”

While deciding not to grant the interim relief prayed by the petitioners, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ directed that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.

“…right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).”

Read more…

Tata Consultancy Services Ltd. v. Cyrus Investments Private Ltd., 2021 SCC OnLine SC 272

“The relief of reinstatement granted by the Tribunal, was too big a pill even for the complainant companies, and perhaps Cyrus Mistry, to swallow.”

Concluding the corporate sage in the Tata-Mistry Row, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has answered all questions in favour of Tata Sons and upheld the removal of Cyrus Mistry as Chairman by the Tata Sons.

The Court observed that

“NCLAT appears to have granted the relief of reinstatement gratis without any foundation in pleadings, without any prayer and without any basis in law, thereby forcing upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.”

Read more…

Also Read: Tata v. Mistry: A Case for Greater Protection of Minority Shareholders’ Rights 

Satyama Dubey v. Union of India, 2020 SCC OnLine SC 874

In a case pertaining to the brutal gang-rape and assault of a 19-year old girl, also known as Hathras Gang Rape Case, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ, while observing that the perception and pessimism are not without justification and directed the CRPF to provide security to the victim’s family and witnesses within a week “in order to allay all apprehensions and only as a confidence building measure”.

Read more…

Association for Democratic Reforms v. Union of India, 2021 SCC OnLine SC 266

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”.”

While refusing to interfere with the Scheme of sale of electoral bonds by the Political Parties, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V, Ramasubramanian, JJ has held that the operations under the Electoral Bonds Scheme are not behind iron curtains incapable of being pierced.

The Court also observed that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels.

Read more…

Attorney General for India v. Satish, 2021 SCC OnLine SC 42

In a Special Leave Petition (SLP) filed against the controversial Bombay High Court judgment, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ stayed the release of accused whose sentence was cut to 1 year by the High Court on the ground that there was no skin to skin contact with victim.

Read more…

Also Read: Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act? 

Rakesh Vaishanv v. Union of India, 2021 SCC OnLine SC 18

“Court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment”

While staying the implementation of all the three farms laws until further orders, the 3-Judge Bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., opined that a stay on implementation of the farm laws may alleviate the hurt feelings of the farmers and invigorate them to come to the negotiating table with confidence and good faith.

“While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others.”

Read more…

Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.”

While refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench consisting of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ opined that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

Read more…

M.K. Ranjitsinh v. Union of India, 2021 SCC OnLine SC 326

In a PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction, the 3-Judge Bench of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., has emphasized on need to adopt eco-centric approach and issued directions to be followed by the Government as  the State as well as the Central Government have a duty to preserve the endangered species.

Read more…

Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, 2020 SCC OnLine SC 1039

In an important and far-reaching verdict deciding the question as to “whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day?”, the 3-judge bench of S.A. Bobde*, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has held that such vote would remain valid and if held otherwise, such a situation will create endless confusion and needless chaos.

“…to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty.”

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Telecom Regulatory Authority of India v. Bharti Airtel Ltd., 2020 SCC OnLine SC 910

Recognising the need of adherence to the regulatory principles of transparency, non-discrimination and non­-predation sought by TRAI, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has directed telecom giants Bharti Airtel and Vodafone-Idea to disclose information/details regarding segmented offers to TRAI and also asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.

Read more…

Sudha Singh v. State of U.P., 2021 SCC OnLine SC 342

Setting aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., held that there is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.

Read More…

R. Poornima v. Union of India, 2020 SCC OnLine SC 714

Dismissing the writ petition, the 3-judge bench of S.A. Bobde*, A.S. Bopanna and V. Ramasubramanian, JJ has dismissed the claim of certain District Judges to club their services rendered as advocates with the service rendered by them as Judicial Officers, for determining their eligibility for elevation as High Court judges.

Read more…

CCEv.  Cera Boards and Doors, 2020 SCC OnLine SC 657

The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ while explaining the scheme of provisions under the Central Excise Act, 1944, laid down elaborate principles that the Adjudicating Authorities has to keep in mind while determining the value of excisable goods.

Read more…

Envitech Marine Consultants (P) Ltd. v. Union of India, 2021 SCC OnLine SC 312

The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has refused to interfere with the dismantling of INS Viraat, the oldest serving warship in the World.

“…while appreciating the sentiments of the petitioners, we are afraid that we cannot do anything at this stage and in these circumstances.”

Read More…

Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar Parvinchandra Shah, 2021 SCC OnLine SC 46

While rejecting the transfer petition, V. Ramasubramanian*, J held that the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. However, when a case is at its final stage, the Court will be extremely reluctant to order the transfer, as it may derail the entire process.

Read more…

Ankita Meena v. University of Delhi, 2021 SCC OnLine SC 36

Setting aside the judgment of Delhi High Court where the Court refused to interfere with the decision of the University denying permission to the applicant to appear in 4th Semester LL.B Examination, the 3-judge bench of S.A. Bobde, CJ, A.S. Bopanna and V. Ramasubramanian*, JJ has directed the University to declare Supplementary exam result & issue provisional degree to woman who fell short of attendance due to birth of her child & subsequent Teacher’s strike.

Read more…

Ashok Kumar v. State of J&K, 2021 SCC OnLine SC 24

Setting aside the judgment of the Division Bench of the High Court, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ held that the seniority will not be decided on the basis of the date of promotion but on the basis of the date of acquiring the qualification while occupying the promoted posts.

“It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Read more…

Saritha S. Nair v. Hibi Eden, 2020 SCC OnLine SC 1006

The 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has held that the suspension of sentence not enough to save one from disqualification from contesting elections; a person is disqualified to contest polls if conviction not stayed.

On the issue of rejection of the of the election petition by the Kerala High Court, the Court held that though the High Court was right in not taking up the election petition but the ground on which it rejected the petition i.e. incurable defects, was wrong.

“If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper.”

Read more…

Ghanshyam Upadhyay v. State of U.P., 2020 SCC OnLine SC 587 and 2020 SCC OnLine SC 658

After Vikas Dubey, a history-sheeter and gangster-turned-politician, was killed in a police encounter on July 10, 2020, the Supreme Court gave a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan.

SC gives a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan | Read more…

Later, a 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ refused to scrap the Judicial Committee constituted to look into the killing of Vikas Dubey and said that the allegations of bias made against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.

Also read: SC refuses to scrap Justice B.S. Chauhan lead Judicial Committee; says allegations based merely on newspaper reports liable to be rejected outright

APJ Abdul Kalam Technological University v. Jai Bharath College of Management and Engineering Technology, 2020 SCC OnLine SC 1015

The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has upheld the power of Universities to fix enhanced norms and standards for the grant of affiliation other than those prescribed by AICTE.

“No State run university can afford to have a laid­back attitude today, when their own performance is being measured by international standards. Therefore, the power of the universities to prescribe enhanced norms and standards, cannot be doubted.”

Read more…

Somasundaram v. State, (2020) 7 SCC 722

Agreeing with Justice Mishra’s opinion that under section 109 IPC, the abettor is liable to the same punishment which may be inflicted on the principal offender if the act of the latter is committed in consequence of the abetment., the 3-judge bench of R.F. Nariman, K.M. Joseph* and V. Ramasubramanian, JJ upheld the conviction of the accused .

The Court opined that “Abduction followed by murder in appropriate cases can enable court to presume that abductor is the murderer. Principle in this regard is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim.” and held that the said principle would also apply to those persons who illegally confine the person who stands abducted even if there is no evidence that they have themselves carried out the abduction.

Read more…

Also Read: Division Bench verdict | Split decision over conviction of accused for abetment when the charges of conspiracy under Section 120B IPC have failed

Kaushik Chatterjee v. State of Haryana, 2020 SCC OnLine SC 793

In a case seeking to transfer of three criminal cases, all pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi, V. Ramasubramanian*, J., held that the transfer of criminal cases cannot be ordered under section 406 of the Code of Criminal Procedure, 1973 on the ground of lack of territorial jurisdiction even before evidence is marshalled.

Read more…

Skoda Auto Volkswagen India (P) Ltd. v. State of U.P., 2020 SCC OnLine SC 958

Rejecting the plea of Skoda Auto Volkswagen India (P) Ltd. to quash an FIR against it alleging the use of “cheat devices” which manipulate emission figures in Audi cars sold by them, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ., reiterated that the Courts should not thwart any investigation unless no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

Read more…

Kaledonia Jute and Fibres (P) Ltd. v. Axis Nirman and Industries Ltd., 2020 SCC OnLine SC 943

Deciding the issue as to what are the circumstances under which a winding up proceeding pending on the file of a High court could be transferred to the NCLT and on whose instance such a transfer could be ordered, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ., held that not just the petitioning creditor but ‘any’ creditor aggrieved by any decision of the official liquidator can initiate transfer of winding up proceedings from a Company Court to NCLT.

Read more…

Notable Judgments at High Court

♦Did you know? The computerization of the Madras high court and the Subordinate courts in Tamil Nadu gained momentum under his leadership. The selection of judges to the subordinate judiciary in Tamil Nadu was entrusted to him three times from the year 2012. [8]

Consim Info (P) Ltd. v. Google India (P) Ltd., 2010 SCC OnLine Mad 4967

In a case dealing with the issue as to whether such a use of appellant’s trademark by Google’s Ad program amounted to trademark infringement, Justice Ramasubramanian* denied an interim injunction against Google for its ‘Keywords Suggestion Tool’.

♦Did you know? The decision rendered by Justice Subramanian in Consim Info (P) Ltd. v. Google India (P) Ltd. was hailed as the first decision in India on the question of infringement of trademark by an internet search engine through its adword policy. This decision was hailed by IPR experts as an encyclopedia on the legal issues involved.[9]

Sanjeev Kumar v. State of H.P., 2019 SCC OnLine HP 972

“…all appointments made otherwise than in accordance with the Recruitment and Promotion Rules, strike at the very root of equality guaranteed under Articles 14 & 16 of the Constitution.”

In a civil writ petition were the petitioners engaged on a contractual basis as Trainer in various Industrial training institute challenged the cut-off date fixed under notification of the Department of Technical Education by the Government, the Division Bench of V. Ramasubramanian*, C.J. and Anoop Chitkara, J., held that there was no arbitrariness on the part of the Government in choosing the cut-off date i.e. 31.07.2015 as there was a scientific reason for the same.

“…the appointments on contract basis may not strictly follow the rule of reservation, which is the bedrock of Articles 14 & 16 of the Constitution. Therefore, this Court cannot be a party to the conversion of an ‘One time Measure’ issued by the Government, that too, at the instance of this Court, in to a permanent measure.”

Read more…

Jinendra Jewellers v. B. Venkateswara Rao, 2017 SCC OnLine Hyd 442

In a case dealing with the issue a to whether a counter-claim can be rejected in terms of Order VII, Rule 11 of Civil Procedure Code, 1908, Justice Ramasubramanian* has held that while dealing with an application for rejection of counter-claim the court must take precaution and examine whether rejection would have the effect of striking off the defence

Read more…

T. Rajkumar v. Union of India, 2016 SCC OnLine Mad 2001

In a writ petition dealing with the constitutionality of Section 94A(1) of the Income Tax Act, 1961, the Division bench comprising of V. Ramasubramanian* and T. Mathivanan, JJ., upheld the constitutionality of Section 94-A(1) of the Income Tax Act stating that in the present times when scams like Panama Leaks are being revealed, the provisions related to tax avoidance are the need of the hour.

The Court held that the provisions of the Vienna Convention on the Law of Treaties and other such rules of International Law did not influence the legislative powers of Parliament.

Read more…

B. Dilipkumar v. Secretary to the Govt., 2016 SCC OnLine Mad 2122

Raising concerns over the rising cases of honour killing, V. Ramasubramanian*, J., issued directions to the Tamil Nadu Government to tackle the growing menace of honour killings in the State.

Read more…

State v. Rasu, 2016 SCC OnLine Mad 1807

Dismissing and disapproving the order laid down by the Single Judge Bench wherein it was directed that the devotees should follow a ‘dress code’ while visiting temples, the Division Bench of V. Ramasubramanian and K. Ravichandrabaabu, JJ., has held that the directions issued by the Single Judge Bench prescribing the dress code for the devotees is beyond the scope of the lis that was before him and therefore cannot be approved.

“Courts are not expected to adjudicate any matter academically in the absence of any real lis between parties. Courts are not entitled to create a controversy and adjudicate upon the same.”

Read more…

A. Santhos Yadav v. Bar Council of T.N.,2015 SCC OnLine Mad 3362

“…the burning of effigies has its roots in history, culture as well as the religion of several countries throughout the world.”

The Division Bench of V. Ramasubramanian* and K. Ravichandrabaabu JJ., held that section 285 of Indian Penal Code, 1860 does not criminalize burning of effigies in a political agitation.

The Court ordered the enrolment of an eligible person as an advocate as he can not be denied enrolment merely because he had a criminal case of burning effigy of a political leader pending against him.

Read more…

V. Surendra Mohan v. State of T.N., 2015 SCC OnLine Mad 2100

Dismissing the writ petition seeking appointment to judicial services with 70% blindness, the Division Bench of V. Ramasubramanian* and T. Mathivanan, JJ., held that held that the Tamil Nadu Public Service Commission’s decision is lawful as it is in line with the State’s policy.

Read more…

Also Read: Supreme Court | 40-50% disability limit for the post of Civil Judge is logical considering the nature of the job

LYCA Production (P) Ltd v.  Govt. of T.N., 2014 SCC OnLine Mad 8448

“The action of any group or organisation demanding the removal of any dialogue or scene or sub-title or title from a film which is already certified for release by the Central Board of Film Certification, would tantamount to a blackmail.”

While allowing the petition and directing the respondent to provide protection to enable the petitioner to have their name exhibited as the Producer of the film “Kathi” in the prints as well as the publicity material of the film, V. Ramasubramanian* J., opined that once a film is certified for screening by the Central Board of Film Certification, no group, organisation or association can demand further censoring, on the ground that something in the film hurts the religious, communal, racial or linguistic sentiments of someone or the other.

Read more…

Dorothy Thomas v. Rex Arul, 2011 SCC OnLine Mad 925

Reffused to be oscillated by the emotional appeal of the Plaintiff-mother against the order of an American Court granting custody of her child to her antagonized husband, Justice V. Ramasubramanian* held that a person who had failed to avail opportunity of hearing provided in the proceedings of the foreign Court cannot contend violation of principles of natural justice and any attack to such foreign judgment under Section 13(d) of the Code of Civil Procedure is not sustainable.

The Court opined that the US court had jurisdiction even though the Plaintiff never personally appeared but appearing through counsel was sufficient to extend personal jurisdiction over the plaintiff for the defendant’s counterclaims.

S. Anand v. Vanitha Vijaya Kumar, 2011 SCC OnLine Mad 435

Emphasized the need for developing the concept of shared parenting, Justice V. Ramasubramanian* held that if both parties are not disqualified from having the custody of the child, then it is their duty, under normal circumstances, to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment.

The Court casted duty on the Courts to draw up a parenting schedule keeping in mind the interest and welfare of the child, if the parents themselves are not matured enough to reach an understanding and draw up a parenting schedule.

Discussing the Court’s mindset and need for change towards its duty towards the interest and welfare of the child, Justice Ramasubramanian held that

“It is quite unfortunate that the Courts still dabble with the age old concepts of custody and visitation rights. These terms emanate from a rights regime rather than a responsibilities regime. Today the emphasis has shifted from the regime where we were concerned with the rights of the parents over the child, to a regime where we should be concerned about the responsibilities of the parents towards the child.”

Lalgudi G. Jayaraman v. Cleveland Cultural Alliance, 2008 SCC OnLine Mad 148

Justice V. Ramasubramanian* held that where a right over an artistic/musical/literary work is claimed by an entity, apart from the author, such entity is under a very heavy burden to show that the work was commissioned by him, was created in the course of employment by the author and that there was no agreement to the contrary.

Rajshree Sugars & Chemicals Ltd. v. AXIS Bank, 2008 SCC OnLine Mad 746

“Derivatives are time bombs and financial weapons of mass destruction, which can push companies on to a spiral that can lead to a corporate melt down”.

– Warren Buffett

Ruling in favour of AXIS Bank, Justice V. Ramasubramanian* held that derivative contract is not a wager, because the purpose it serves is akin to insurance by hedging the plaintiff’s risk, therefore it is not illegal.

“Every business venture provides a roller-coaster ride at some point of time or the other and the validity of contracts cannot be judged on the basis of the success or failure of the venture.”

Colgate-Palmolive (India) Ltd. v. Anchor Health & Beauty Care (P) Ltd., 2008 SCC OnLine Mad 627

“…on the one hand, advertisements being free commercial speech, enjoy a degree of protection. On the other hand, the right of the consumers to know and to receive information is also protected. Therefore, both rights have to be matched and balanced.”

Recognising the rights of the consumers to be protected against misleading claims made by manufacturers, V. Ramasubramanian*, J., held that the question of the legality of puffing needed to be decided by balancing the right to freedom under Article 19 along with reasonable restrictions on that right in the form of consumer laws.

“…the recognition of this right (to puff) of the producers, would be to de-recognise the rights of the consumers guaranteed under the Consumer Protection Act, 1986.”

†Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

** Judge who has penned the concurring judgment.

[1] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

[2] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

[3] https://tshc.gov.in/hcapp/fcjjudprofile.action;HCAPP_ID=E419F69C53EF3A2592C3A3A5AC049D86?judcode=2&cjornot=N

[4] https://tshc.gov.in/hcapp/fcjjudprofile.action;HCAPP_ID=E419F69C53EF3A2592C3A3A5AC049D86?judcode=2&cjornot=N

[5] https://tshc.gov.in/hcapp/fcjjudprofile.action;HCAPP_ID=E419F69C53EF3A2592C3A3A5AC049D86?judcode=2&cjornot=N

[6] https://economictimes.indiatimes.com/news/politics-and-nation/another-judge-now-objects-to-sc-collegium-overlooking-seniority/articleshow/70983735.cms?from=mdr

[7] https://www.deccanherald.com/national/sc-judge-v-ramasubramanian-recuses-himself-from-hearing-2008-bengaluru-blasts-accuseds-plea-973634.html

[8] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

[9] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

Appointments & TransfersNews

President of India appoints Shri Robin Phukan, to be an Additional Judge of the Gauhati High Court. He will hold the office for a period of two years with effect from the date he assumes charge of his office.

Background

Shri Robin Phukan, M.Sc., LL.M., joined the Judicial Service on 09.03.1993. and has served as Chief Judicial Magistrate, Kamrup; Civil Judge & Asstt. Sessions Judge, Tezpur; Addl. District & Sessions Judge, Silchar; Registrar (PM&P); Registrar (Administration); Registrar (Vigilance) and Registrar General Gauhati High Court; District & Sessions Judge, Golaghat; Special judge, CBI & NIA. He was working as District & Sessions Judge, Jorhat from 06.01.2020.

Appointments & TransfersNews

Appointment of Judges

President of India appoints the following as Judges of Madhya Pradesh High Court:

  1. Shri Anil Verma
  2. Shri Arun Kumar Sharma
  3. Shri Satyendra Kumar Singh
  4. Smt. Sunita Yadav
  5. Shri Deepak Kumar Agarwal, and
  6. Shri Rajendra Kumar (Verma).

Anil Verma, B.Sc, LLB., joined Judicial Service as Civil Judge Class- Il on 26.08.1987. He worked as Special Judge, Sagar, Secretary, Law & Legislative Department, Govt. of MP, Bhopal, Principal Judge Family Court, Sagar, District & Session Judge, Sagar, District Judge (Vigilance) Indore, and presently he is working as Principal Registrar, High Court of MP Bench at Indore since 04.06.2018.

Shri Arun Kumar Sharma, B.Sc., LLB, joined Judicial Service on 27.08.1987. He worked as Additional District & Sessions Judge, Tikamgarh, Indore, Principal Judge Family Court, Chhatarpur, District & Sessions Judge, Tikamgarh. At present he is working as a District & Sessions Judge, Chhatarpur since 28.03.2019.

Shri Satyendra Kumar Singh, B.Sc, LLB, joined Judicial Service on 03.11.1987. He worked as OSD/Additional Registrar//Registrar(Vigilance) in High Court of M.P., Jabalpur, Special Judge SC/ST Act and 1 st A.J. to I st A.D.J. Ujjain, District & Sessions Judge, Alirajpur, Ujjain and Principal Registrar (Vigilance) HC of MP, Jabalpur. At present he is working as a Principal Secretary, Govt. of MP, Law & Legislative Affairs Department, Bhopal since 14.05.2018.

Smt. Sunita Yadav, B.Sc., LLB, joined Judicial Service on 07.09.1987. She worked as First Addl. Distt. Judge Morena, Executive Director (Law), Delhi Electricity Regulatory Commission, New Delhi (on deputation), Special Judge SC/ST Act and Additional District Judge, Gwalior, District and Sessions Judge, Ashok Nagar. At present she is working as a District & Sessions Judge, Datia since 03.07.2017.

Shri Deepak Kumar Agarwal, B.Sc., LLB, joined Judicial Service on 01.09.1987. He worked as Addl. Distt. & Session Judge, Indore, Special Judge Atrocities, Bhind District & Sessions Judge, Balaghat. At present he is working as a District & Sessions Judge, Gwalior since 01.12.2018.

Shri Rajendra Kumar (Verma), B.A, LLB, joined Judicial Service on 28.09.1987. He worked as President District Consumer Disputes Redressal Forum, Khandwa, Secretary Law & Legislative, Govt. of MP, Bhopal, Additional District & Sessions Judge, Dewas, District & Sessions Judge, Ailrajpur, Rajgarh Principal Judge, Family Court, Bhopal, At present he is working as District & Sessions Judge, Bhopal since 01.12.2018.

Know thy Judge

“Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Justice L. Nageswara Rao

Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258

Born on 08.06.1957 at Chirala, Prakasam District, Andhra Pradesh, Justice L. Nageswara Rao enrolled as an Advocate at Bar Council of Andhra Pradesh in July 1982 after getting a degree in B.Com., B.L., from Nagarjuna University, Guntur, Andhra Pradesh.

Starting his practice at the District Court, Guntur, Andhra Pradesh, Justice Nageswara Rao, started practicing in the Andhra Pradesh High Court from January, 1984.

One year later, he started practicing at the Supreme Court of India and continued to do so till 2016, when he was elevated as the Supreme Court Judge.

♦Did you know? Justice Nageswara Rao is the 7th person to be elevated directly from the Bar as a Supreme Court judge.[1]

Justice Nageswara Rao also served as Additional Solicitor General of India from August 2003 to May, 2004 and again from 26.08.2013 to 18.12.2014.

He was took oath as a Judge of the Supreme Court of India on 13.05.2016.

♦Did you know? Justice Nageswara Rao was offered Supreme Court judgeship in 2014 by then Chief Justice of India RM Lodha. He had, however, turned down offer, citing personal and professional reasons.[2]

Justice Nageswara Rao is due to retire on 07.06.2022.

15 NOTABLE JUDGMENTS 

Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction, after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

Read more

Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7-judge bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

Dr. D.Y. Chandrachud, J writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ, laid down the principles for promulgation of ordinances.

Read more

Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629

Giving a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.

Justice Rao joined T.S. Thakur, CJ and Madan B. Lokur, and S.A. Bobde, JJ to give the majority verdict in the 4:3 verdict, while Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ dissented.

Read more

 Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC OnLine SC 362

The 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ quashed the much in debate Maratha Reservation and has held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney[1]’s case.

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Madras Bar Association v. Union of India, 2020 SCC OnLine SC 962

The 3-judge bench of L. Nageswara Rao*, Hemant Gupta and S. Ravindra Bhat has issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020.

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C. Bright v. District Collector, (2021) 2 SCC 392

The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has upheld Kerala High Court’s decision holding that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) mandating the District Magistrate to deliver possession of a secured asset within 30 days, extendable to an aggregate of 60 days upon reasons recorded in writing, is a directory provision.

Interpreting Section 14 of the SARFAESI Act, the Court said that

“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”

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Rupali Devi. State of Uttar Pradesh,  (2019) 5 SCC 384

The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and SK Kaul, JJ held that woman driven out of matrimonial home can file case under Section 498-A from the place she has taken shelter at. The bench said,

“the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

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Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710

In a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, the 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that no offence under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out as the allegations of hurling of abuses is against a person who claims title over the property and not on account of them being a member of the Scheduled Caste.

“The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”

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Narendra v. K. Meena, (2016) 9 SCC 455

Dealing with the case where the husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was proving them financial support, the Court said that in a Hindu society, it is a pious obligation of the son to maintain the parents.

The Bench of A.R. Dave and L. Nageswara Rao, JJ added that no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court also said that the persistent effort of the wife to constrain the husband to be separated from the family would be torturous for the husband and will constitute as an act of ‘cruelty’.

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State of Tamil Nadu v. K Balu, (2017) 2 SCC 281

While stressing upon the alarming statistics on the occurrence of road accidents due to drunken driving the Full Bench comprising of T.S. Thakur, CJ., D.Y. Chandrachud, L Nageswara Rao, JJ. prohibited all States and Union Territories from granting licenses for the sale of liquor along national and state highways.

In 2007, Ministry of Road Transport and Highways had issued a circular to all the State Governments advising them to remove liquor shops situated along national highways and not to issue fresh licenses. Moreover, the Union Government had formulated for adoption by the States a Model Policy, which provided for a minimum distance from the state/national highways for locating liquor shops. However, an exception was carved out to the effect that the national or state highways would not include such parts of them as are situated within the limits of local authorities.

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Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, (2016) 16 SCC 788

Giving the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men, the 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

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IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS, 2021 SCC OnLine SC 329

After noticing common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhatt, JJ has directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months.

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In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881, 2021 SCC OnLine SC 325

Noticing that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution bench of SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

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Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020 7 SCC 366

The 2-judge bench of Indu Malhotra and L Nageswara Rao, JJ has held that even when the entire sale consideration has not been paid, it could not be a ground for cancellation of the Sale Deed.

The Court relied on the it’s verdict in Vidyadhar v. Manikrao, (1999) 3 SCC 573, wherein it was held that non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.

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Anjan Kumar Sharma v. State of Assam, (2017) 14 SCC 359

The bench comprising of L.Nageswara Rao and Navin Sinha, JJ. held that in the absence of conclusive and consistent proof of circumstantial chain of evidence which lead to the only “hypothesis of guilt” against the accused then, only circumstance of last seen cannot be made basis of conviction.

Read more

[1]Emerging trends in judgment writing introduced by Justice L Nageswara Rao, by Sameer, Updated: 18th August 2020, https://www.siasat.com/emerging-trends-in-judgment-writing-introduced-by-justice-l-nageswara-rao-1951146/

[2] L Nageswara Rao recommended for the post of SC judge, by Utkarsh Anand, May 5, 2016, https://indianexpress.com/article/india/india-news-india/l-nageswara-rao-recommended-for-the-post-of-sc-judge-2784921/

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., emphasised that all stakeholders in the process of administration of justice should discharge their commitments sincerely.

The High Court was set to dispose of a second appeal filed before it in a suit for malicious prosecution. The defendants in the suit had earlier filed a complaint against the plaintiff, who was acquitted by the Judicial Magistrate. Alleging that it was a false complaint filed only to victimise him, the plaintiff filed a suit for malicious prosecution claiming damages from the defendants. The trial court dismissed the plaintiff’s suit, but the first Appellate Court ruled in his favour. Aggrieved, the defendants filed the second appeal which was before the High Court.

Noting the ‘substantial questions of law’ on which the second appeal was admitted, the High Court went on to observe that the formulation conveyed no meaning, it made no sense at all.

“Choosing to be frank with an eye on future“, the Court recorded that although Section 100(4) CPC states that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question, what mostly happens in practice is not in strict consonance with the statutory mandate.

The Court said:

“Since Section 100(3) CPC states that the appeal memorandum shall precisely state the substantial question of law involved in the appeal, once the Judge is satisfied that a case has been made out for admitting the second appeal, instead of independently formulating the substantial question of law arising in the appeal, instruction is given to the stenographer to copy down certain particular grounds from the appeal memorandum.”

It further noted that if the counsel’s formulation is flawed and defective, the Court record also carries the same vice. Underscoring the commitment that Justice and the judicial system demands, the Court observed:

“Since the judicial workload is staggering, it is not fair to expect the judges to expend too much time and energy in proof-reading. The counsel must assume greater responsibility. They must deeply study the case record. Their grasp of the legal principles must be thorough and accurate. The distilled understanding must be reflected in the appeal grounds. They must be properly drafted. There should not be grammatical and spelling errors. The role of stenographers and typists is equally significant. Only if all the stakeholders discharge their commitments sincerely, howlers like what we saw now can be avoided.“

Then, the High Court reframed the substantial questions of law involved in the second appeal and decided the appeal on merits holding that only Defendant 1 (out of six defendants) was liable; and the plaintiff was awarded damages amounting to Rs 50,000 with interest. The full report of this case where the High Court has had an elaborate discussion on liability in a suit for malicious prosecution, can be read here:  LINK.

[M. Abubaker v. Abdul Kareem, 2021 SCC OnLine Mad 1934, decided on 21-4-2021 ]

https://www.scconline.com/blog/post/2021/05/25/malicious-prosecution/

Know thy Judge

Early life

Born on 20th May, 1959, Justice Ajjikuttira Somaiah Bopanna is respected for ensuring transparency. He was enrolled as an advocate on November 21, 1984 and practised Civil, Constitutional, Company, Service and Labour matters in the High Court as well as the Civil and Labour Courts. He also worked as legal advisor to Central Public Sector Undertakings and worked as Additional Central Government Standing Counsel from 1999 onwards till 2005. Later on, he was appointed as an Additional Judge of the High Court of Karnataka on January 6, 2006 and became a permanent judge on March 1, 2007. On October 29, 2018 Justice A. S. Bopanna was elevated as Chief Justice of Gauhati High Court. He was elevated as a judge of the Supreme court of India on May 24, 2019. He is due to retire on May 19, 2024.[1]

♦Did you know? Justice Bopanna has made a remarkable contribution to prevent pilling up of cases in the Courts. During his transfer from Karnataka HC the then Chief Justice had appreciated Justice A. S. Bopanna’s unparallel contribution to the Bengaluru Mediation Centre[2]

♦Did you know? Justice Bopanna has served as one of the members of Board of governors of Karnataka Arbitration Centre.[3]

Career as an Advocate [1984-2005]

Enrolled as an Advocate on 21-11-1984, Justice Bopanna had practised Civil, Constitutional, Company, Service and Labour matters in the High Court of Karnataka as well as in the Civil and Labour Courts. He had also worked as Legal Advisor to all Central Public Sector Undertakings and worked as Addl. Central Govt. Standing Counsel from 1999 onwards till 2005. [4] Here are some of the notable cases represented by Justice Bopanna:

Bharat Gold Mines Ltd. v. Sundareshan, 2000 SCC OnLine Kar 346

Tata Consultancy Services v. State of Karnataka, 2003 SCC OnLine Kar 559

Ansys Software Pvt. Ltd., In re, 2004 SCC OnLine Kar 562

G. Naravana Rao v. V.R. Nagmani, 1996 SCC OnLine Kar 397

Equipment v. G.M, Bangalore Telephones, 1996 SCC OnLine Kar 374

♦Did you know? Justice Bopanna is the son of the late A.N. Somaiah, a prominent politician belonging to the erstwhile Janata Party, who served as a member of the Karnataka Legislative Council a few decades ago.[5]

Important Judgments at the High Court of Karnataka [2006-2018]

♦Did you know? Justice Bopanna, the first judge from Kodagu (Coorg) in Karnataka to be elevated to the Supreme Court of India, is the ‘Coorg Person of the Year, 2019’.[6]

Rahul Chandra Kone v. Jahanvi, 2017 SCC OnLine Kar 1700

The Single Judge Bench comprising of A.S. Bopanna, J., decided a set of writ petitions filed under Articles 226 and 227 of the Constitution, wherein the petitioner husband; residing abroad, was granted permission to appear in the Court through Skype.

The matter related to a marriage dispute between the petitioner-husband and the respondent-wife. The matter was initially filed before the Family Court by the wife against the husband. The petitioner-husband in the instant petition prayed to quash the order of the Family Court whereby the petitioner was directed to appear in person before the Court in Bangalore. The petitioner submitted that he was residing in the USA and had difficulties in traveling to India and appearing before the Family Court.

Read more…

 Tammanna v. Renuka, 2009 SCC OnLine Kar 123

The 7-Judges Bench comprising of P.D. Dinakaran CJ and S.R. Bannurmath, V. Gopala Gowda, V.G. Sabhahit, K.L. Manjunath, A.S. Bopanna and A.N. Venugopala Gowda, JJ. held that the power of the Single Judge under Section 8 of the Karnataka High Court Act is traceable and subject to the revisional jurisdiction of the High Court under Section 115 CPC. Therefore, since Section 8 of the Karnataka High Court Act remained unamended, the insertion of Section 9(xii) and 10(iv-a) of the Karnataka High Court Act as amended by Amendment Act 12 of 1973 to the Karnataka High Court Act by itself would not render Section 8 redundant in the statute book.

D. Sudhakar v. D.N. Jeevaraju, 2011 SCC OnLine Kar 46

     The Bench of Mohan Shantana Goudar, S. Abdul Nazeer and A.S. Bopanna, JJ. held that the elected members are duty bound to adhere strictly to the democratic norms without making themselves subject to the wrath of the Tenth Schedule. The election promises and pledges held out to the electorate at the time of election have to be maintained. Any deviation of the same would amount to betrayal of the electorate who has reposed confidence in the elected member. The Bench stated,

“We hope and trust that the elected members of the House would realise the avowed object of the Tenth Schedule in order to prevent unholy atmosphere in the House and also in the society.”

Notable Judgments at the High Court of Gauhati [2018-2019]

Union of India v. Bichitra Sarmah, 2019 SCC OnLine Gau 3498

The Division Bench of A.S. Bopanna, C.J. and Arup Kumar Goswami, J. held that when the incident of firing had occurred accidentally and no other motive was alleged in the charge sheet, the disciplinary authority’s decision to ultimately impose the punishment on the basis of the conclusion of the Enquiry Officer that such firing was an attempt to commit suicide, would not be justified.

Assam State Agricultural Marketing Board v. Tinsukia Trading Co. (P) Ltd.,2018 SCC OnLine Gau 1581

The Division Bench comprising of A.S. Bopanna, CJ. and Arup Kumar Goswami, J. interpreted the meaning of ‘Agricultural Produce’ of Assam Agricultural Produce Market Act, 1972.

The appellants were levying a cess on Mustard Oil imported from outside the State of Assam which was contended by the respondents to be unjustified and accordingly they sought for a refund of the amount collected by the respondent as cess.

Read more…

Utpal Das v. Rinki Sarkar, 2019 SCC OnLine Gau 1048

A Bench of A.S. Bopanna, CJ and Sanjay Kumar Medhi, J. dismissed an appeal filed by the appellant-husband against family court’s order granting alimony of Rs 2.5 lakhs to the respondent-wife.

Undisputed facts of the case are that the parties were formerly married to each other. Some marital disputes arose and the husband filed a petition seeking divorce which was granted by the family court. Subsequent to the divorce decree, the wife filed a petition under Section 25 of the Hindu Marriage Act, 1955 seeking permanent alimony of Rs 15 lakhs. Partly allowing the wife’s application, the family court awarded her alimony of Rs 2.5 lakhs. Aggrieved thereby, the husband filed the present appeal.

Read more…

Numaligarh Refinery Ltd. v. State of Assam, 2019 SCC OnLine Gau 1023

The Division Bench of A.S. Bopanna, C.J. and Arup Kumar Goswami, J. held that even if the contention that the processing is to be done at the refinery and only thereafter VAT would be payable is taken note of, when as per the decision of the hon’ble Supreme Court, the same is also incidental to the purchase, irrespective of the fact as to whether the same is included in the invoice or not it would get attracted. The value of the VAT also would, therefore, get included in the import value for the purpose of processing the entry tax as it would fall under “other charges incidentally levied on the purchase of such goods” which is paid or payable.

Union Public Service Commission v. Nityananda Borkakoty, 2019 SCC OnLine Gau 3511

The Division Bench of A.S. Bopanna, C.J. and Sanjay Kumar Medhi, J. held that there is no dispute to the proposition of law that a Selection Committee does not act as a mechanical body and can make its own assessment of the respective merits of the candidates apart from the ACRs. In our view, a Selection Committee has to be given that much of independence and liberty to make its own assessment based on the relevant materials on record and cannot be bound by the remarks in the ACRs only. If such a narrow view is taken, the Selection Committee would be rendered to a mere mechanical body and there would be no necessity of appointing experts in the same which is not the object of holding the selection. However, at the same time, the assessment has to be made on the basis of the relevant materials before the committee and if the committee relies upon any irrelevant materials or extraneous consideration, such selection would not be in accordance with law. Though the fact of not communicating the adverse remark of ‘Unfit’ to the respondent No. 1 might not per se have a bearing in the Selection Committee meeting, the said remark was undoubtedly a relevant factor which had played a role in the minds of the members of the Selection

 Remarkable Judgments as the Judge of Supreme Court

Mechanical Conversion of Complaints

Expeditious Trial of Cases Under Section 138 Of N.I. Act 1881, In Re,  2021 SCC OnLine SC 325

Noticing that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution bench of SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

Read more…

 Deportation of Rohingya Refugees

Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296

“Right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India.”

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has directed that Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.

Read more…

Tata v. Cyrus Controversy

Tata Consultancy Services Ltd. v. Cyrus Investments Private Ltd., 2021 SCC OnLine SC 272

In a long awaited verdict in the Tata-Mistry Row, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has upheld the removal of Cyrus Mistry as Chairman by the Tata Sons and has also answered all questions in favour of Tata Sons. The Court said that NCLAT has, by reinstating Mistry without any pleading or prayer, “has forced upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.” 

The Court said,

“The relief of reinstatement granted by the Tribunal, was too big a pill even for the complainant companies, and perhaps Cyrus Mistry, to swallow.”

Read more…

Hathras Gang Rape

Satyama Dubey v. Union of India, 2020 SCC OnLine SC 874,

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has, “in order to allay all apprehensions and only as a confidence building measure”, directed that the security to the victim’s family and the witnesses in the Hathras Gang Rape case shall be provided by the CRPF within a week.

The case pertains to the brutal gang-rape and assault of a 19-year¬old girl, resident of Hathras village in Uttar Pradesh. Though she was shifted to Safdarjung Hospital in Delhi, she breathed her last and she was cremated in the middle of the night without the presence of her family members.

Read more…

Sale of electoral bonds Scheme

 Association for Democratic Reforms v. Union of India, 2021 SCC OnLine SC 266

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V, Ramasubramanian, JJ has refused to interfere with the scheme of sale of electoral bonds by the Political Parties challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy. The Court said that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels and that,

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.”

Read more…

ED’s power to freeze bank accounts

OPTO Circuit India Ltd. v. Axis Bank, 2021 SCC OnLine SC 55

The 3-judge bench of SA Bobde, CJ and AS Bopanna* and V. Ramasubramanian, JJ has held that  under the Prevention of Money ­Laundering Act, 2002, though the Directorate of Enforcement is vested with sufficient power to freeze the accounts; such power is circumscribed by a procedure laid down under the statute.

“It certainly is not the requirement that the communication addressed to the Bank itself should contain all the details. But what is necessary is an order in the file recording the belief as provided under Section 17(1) of PMLA before the communication is issued and thereafter the requirement of Section 17(2) of PMLA after the freezing is made is complied.”

Read more…

No sexual assault if no ‘skin to skin’ contact Controversy  

Attorney General for India v. Satish, 2021 SCC OnLine SC 42

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

Read more…

Farm Laws

Rakesh Vaishanv v. Union of India, 2021 SCC OnLine SC 18

The 3-Judge Bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., stays the implementation of farms laws until further orders.

Three categories of petitions have been filed before the Court, all revolving around the validity or otherwise of three Farm Laws namely:

  • Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
  • Essential Commodities (Amendment) Act, 2020
  • Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020

Read more…

Protection of the Great Indian Bustard

M.K. Ranjitsinh v. Union of India, 2021 SCC OnLine SC 326

The 3-Judge Bench comprising of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., addressed the instant PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction. The Bench remarked,

“…keeping in view, the sustainable development concept and on striking a balance the protection of the rare species of birds is essential to be made, the effort being to save every bird while at the same time allowing transmission of power in an appropriate manner.”

Read more…

Validity of Pre-disqualification Vote of MLA

Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, 2020 SCC OnLine SC 1039,

In an interesting case where a Member of the Legislative Assembly cast his vote in an election to the Rajya Sabha in the morning and got convicted in the afternoon thereby becoming disqualified, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has held that the such vote would remain valid. If held otherwise, such situation will create endless confusion and needless chaos.  

Read more…

 Pre-litigation Mediation

Youth Bar Association of India v. Union of India, WP(C) No. 000849 of 2020

In the petition seeking for standard operating procedures for implementation of pre-litigation mediation under Section 12A of Commercial Courts Act, 2015, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has admitted the application for intervention made by Bridge Mediation, a policy think tank based out of New Delhi, seeking the creation of a committee of experts to guide on the ground level issues arising out of the implementation of Section 12A of Commercial Courts Act, 2015.

Read more…

Segmented Offers by Airtel and Vodafone

Telecom Regulatory Authority of India v. Bharti Airtel Ltd., 2020 SCC OnLine SC 910

The 3-judge bench of SA, Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ has directed telecom giants Bharti Airtel and Vodafone-Idea to disclose information/details regarding segmented offers to TRAI. It asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.

Read more…

Nirbhaya Death Row Convicts 

Pawan Kumar Gupta v. State of NCT of Delhi,  2020 SCC OnLine SC 340

Putting the last nail in the coffin for the Nirbhaya death row convicts who were hanged this morning, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ dismissed the plea file by Pawan Kumar Gupta challenging the rejection of his mercy petition by the President on the ground that his plea of juvenility had not been finally determined and this aspect was not kept in view by the President of India while rejecting his mercy plea.

Read more…

† Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://main.sci.gov.in/chief-justice-judges

[2] https://www.newindianexpress.com/cities/bengaluru/2018/oct/27/karnataka-high-court-bids-adieu-to-justice-a-s-bopanna-1890703.html

[3] http://www.arbitrationcentreblr.org/images/INAUGURAL%20ISSUE.pdf

[4] https://karnatakajudiciary.kar.nic.in/bio_data/HCKformer_judges/asbj.htm

[5] http://www.coorgnews.in/general-news/supreme-court-judge-justice-bopanna-is-coorg-person-of-the-year-2019/

[6] http://www.coorgnews.in/general-news/supreme-court-judge-justice-bopanna-is-coorg-person-of-the-year-2019/

Know thy Judge

“There is no rule that in every criminal case, the testimony of an injured eye-witness needs corroboration from the so-called independent witnesses. When the statement of injured eye-witness is found trustworthy and reliable, the conviction on that basis could always be recorded, of course, having regard to all the facts and surrounding factors.”

– Justice Dinesh Maheshwari

Manjit Singh v. State of Punjab, (2019) 8 SCC 529

Justice Dinesh Maheshwari was born on 15th May, 1958 in Udaipur (Rajasthan). He had completed his BSc (Hons.) in physics from Maharaja’s College, Rajasthan University, Jaipur and LL.B. from Jodhpur University. He enrolled as an Advocate with Bar Council of Rajasthan in March, 1981.

♦Did you know? Justice Dinesh Maheshwari’s father, Ramesh Chandra Maheshwari is a prominent advocate in Jodhpur.

As an Advocate

Justice Dinesh Maheshwari practised on original and appellate sides before Rajasthan High Court and its subordinate Courts. He mainly dealt with civil and constitutional matters.

Justice Maheshwari served as counsel for Revenue and Excise Departments of Government of Rajasthan as also several local bodies and corporations. He had also been co-opted member on various disciplinary committees of the Bar Council of Rajasthan.

As a Judge

♦Did you know? Justice Maheshwari hails from lawyers’ lineage and is a first generation judge.

Justice Dinesh Maheshwari took oath as Judge of Rajasthan High Court on 2nd September, 2004. He also served as Chairman of Rajasthan State Judicial Academy and as Administrative Judge of Rajasthan High Court.

Justice Maheshwari was then transferred to Allahabad High Court and took oath on 19th July, 2014. He was appointed as Chief Justice of the High Court of Meghalaya on the 24th February 2016 and then, as Chief Justice of High Court of Karnataka on 12th February 2018.

♦Did you know? The collegium had superseded Justice Maheshwari in October, 2018 when it recommended the elevation of the then Chief Justice of the Tripura High Court, Justice Ajay Rastogi — originally from the Rajasthan High Court — to the Supreme Court.[1]

Justice Maheshwari was elevated as a Judge of the Supreme Court of India on 18th January, 2019.

♦Did you know?While Justice Maheshwari was at serial number 21 of all-India seniority list of judges, Justice Khanna was at 33.

Notable Judgments – Supreme Court

Bajranga v. State of M.P., 2021 SCC OnLine SC 27

While setting aside the impugned order of High Court of judicature at Madhya Pradesh for upholding the taking over of possession and eviction under MP Land Revenue Code, 1959, a 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., held that when there was no surplus land there could be no question of any proceedings for take over of the surplus land under the said Act.

“Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.”

Read More…

Indian School, Jodhpur v. State of Rajasthan, 2021 SCC OnLine SC 359

The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has directed the School Managements of Rajasthan private schools to Give 15% deduction in Annual school fees and ordered that no students are to be debarred for non – payment of fees.

“The school Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”.”

Read more…

Rajiv Suri v. Delhi Development Authority, 2021 SCC OnLine SC 7

A 3-judge bench comprising of A. M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ, by a 2:1 verdict, held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project and given a go ahead to the Central Vista Project.

“The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust.”

Read More…

Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 160

The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., while deciding the application hearing an application by the IRP Anuj Jain who was arrest n connection with an accident on the Expressway for not taking safety measures suggested by the IIT in its safety audit conducted in 2018 to reduce road accidents, said that it was “appalled to see” extreme step taken by Uttar Pradesh Police in the case.

The Court directed the release of the applicant and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.

The Court also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against the applicant.

Read More…

State of Tamil Nadu v. K. Shobhna,  2021 SCC OnLine SC 179

In a petition related to reservation and filling up of backlog vacancies, the 3-judge bench of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., explaining the applicability of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and held that the reserved category students scoring on their own merit to be adjusted under general category.

Read More…

Joydeep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146

The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy*, JJ held malicious allegation against spouse costing him his job and reputation is not an attempt to preserve the relationship but a definite case of mental cruelty and the husband was entitled to dissolution of his marriage.

“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”

Read More…

Chandra Deepak Kochhar v. ICICI Bank Ltd., 2020 SCC OnLine SC 969

A 3-judge bench comprising of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ., refused to interfere with the termination of Chanda Kochhar as the Managing Director and CEO of ICICI Bank.

Read More…

Shoda Devi v. DDU/Ripon Hospital Shimla, 2019 SCC OnLine SC 334

“The award of compensation cannot go restrictive when the victim is coming from a poor and rural background.”

While enhancing compensation in a case of medical negligence, a Division bench comprising of Abhay Manohar Sapre and Dinesh Maheshwari*, JJ., held that award of compensation cannot go restrictive when the victim is from poor and rural background and awarded Rs. 10 Lakh compensation to ‘send message’ to medical practitioners.

“Such granting of reasonability higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity.”

Read More…

Kavita Kanwar v. Pamela Mehta, 2020 SCC OnLine SC 464

While dealing with the issue of proving of wills and when a will may be considered to be invalid and executed under suspicious circumstances, a Division bench comprising of Abhay Manohar Sapre and Dinesh Maheshwari*, JJ., held that,

“thick clouds of suspicious circumstances are hovering over the Will in question which have not been cleared; rather every suspicious circumstance is confounded by another and the curious case of the alleged third page of the Will effectively and completely demolishes the case of the appellant.”

Sujata Kohli v. High Court of Delhi, (2020) 14 SCC 58

“The right to be considered for promotion is a fundamental right of equality of opportunity in the matter of employment.”

While dismissing a petition by Additional District and Sessions Judge Sujata Kohli challenging the constitutional validity of certain rules and resolutions of Delhi high Court on criteria for appointment of a judicial officer to the post of District Judge and Sessions Judge, a Division bench comprising A M Khanwilkar and Dinesh Maheshwari*, JJ., held that grading of an individual officer remains a matter between the officer and the establishment and it cannot be said that the high court has caused any prejudice to the appellant in the matter of ACR gradings.

“Having regard to the circumstances of this case, we are impelled to observe that while raising grievances with regard to the impact and effect of ACR gradings, the appellant appears to have missed out the fundamental factor that for the promotions in question, an individual’s minimum merit, by itself, was not going to be decisive, but the relevant factor was going to be comparative merit of the persons in the zone of consideration.”

Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., 2020 SCC OnLine SC 948

“It is the fundamental principle of an equitable examination that “the one who seeks equity must do equity”.

While deciding the issue, whether NSE can realise withheld securities prior to expulsion or declaration of defaulter, the bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., the Court held that vesting of withheld securities of a defaulting member does not take place in favour of the NSE/NSCCL unless a formal expulsion order is passed and without such legal vesting, the Exchange only sits upon the withheld assets as a custodian.

Read More…

Union of India v. Exide Industries Limited and Another,  2020 SCC OnLine SC 399

A 3-judge bench of A.M. Khanwilkar*, Hemant Gupta, Dinesh Maheshwari, JJ., deciding on the validity of clause (f) to Section 43-B Income Tax Act, 1961, held,

“To hold a provision as violative of the Constitution on account of failure of the legislature to state the Objects and Reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison d’être behind this self-imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each other’s wisdom in the exercise of their duties. In other words, the time-tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted law.”

Read More…

State of Madhya Pradesh v. Bherulal, 2020 SCC OnLine SC 849

“Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed”

A Division bench of Sanjay Kishan Kaul* and Dinesh Maheshwari, JJ., dismissing the a Special Leave Petition filed by the State of Madhya Pradesh with a delay of 663 days, held

“We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value.”

Read More…

L.R. Brothers Indo Flora Ltd v. Commissioner of Central Excise, 2020 SCC OnLine SC 705

A Division bench comprising of AM Khanwilkar* and Dinesh Maheshwari, JJ., while deciding when can a subsequent legislation be applied retrospectively, held that for an application of a subsequent legislation retrospectively, it is necessary to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act.

“It is a settled proposition of law that all laws are deemed to apply prospectively unless either expressly specified to apply retrospectively or intended to have been done so by the legislature. The latter would be a case of necessary implication and it cannot be inferred lightly.”

Read More…

Workmen v. Ravuthar Dawood Naseem, 2020 SCC OnLine SC 461

While deciding a contempt petititon, a Division Bbnch comprising constiting of A.M. Khanwilkar* and Dinesh Maheshwari, JJ., held that to establish civil contempt, disobedience of order should be wilful, deliberate & with full knowledge of consequences

Read More…

Anuj Jain v. Axis Bank Ltd., 2020 SCC OnLine SC 237

The Division bench consisting of AM Khanwilkar and Dinesh Maheshwari*, JJ., held that the lending banks of Jaiprakash Associates Limited (JAL) were not the financial creditors and that the transactions in question were to defraud the lenders of the corporate debtor Jaypee Infratech Limited (JIL).

“the transactions in question are hit by Section 43 of the Code and the Adjudicating Authority, having rightly held so, had been justified in issuing necessary directions in terms of Section 44 of the Code.”

The Court directed the return of mortgaged land to Jaypee Infratech Limited

Read More…

Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394

“A non-hostile working environment is the basic limb of dignified employment.”

While directing the Centre to pay Rs. 1 Lakh compensation for improper handling of sexual harassment allegation by former RAW agent Nisha Priya Bhatia, the bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., upheld the compulsory retirement for Nisha Priya Bhatia on the ground of “exposure” having regard to the nature of work of the Organisation of which confidentiality and secrecy are inalienable elements.

“…the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace.”

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 Gopalkrishnan v. State of Kerala, 2019 SCC OnLine SC 1532

The Division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., held that the contents of a memory card or a pen drive in relation to a crime amount to a ‘document’ and not a ‘material object’.

The Court also opined that the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973 and if the electronic evidence is regard to the cases involving issues such as of privacy of the complainant/witness or his/her identity, then the trial court, keeping in mind the sensitivity of the contents, could deny a copy but may allow the inspection to the accused and his/her lawyer or expert for presenting effective defence during the trial.

“…the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial.”

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Notable Judgments – High Court

♦Did you know?When Justice Maheshwari was judge of the Rajasthan High Court, he re-initiated an inquiry against P. Krishna Bhat, a district judge, at the Centre’s behest. Justice Bhat’s promotion was stalled in light of allegations of “atrocities and abuse of power” made by a female judicial officer. Though Justice Bhat was cleared of all charges twice, Justice Maheshwari initiated a third inquiry — purportedly on instructions issued in a letter written directly by the Law Ministry.[2]

Dream Merchants v. State of Karnataka, 2018 SCC OnLine Kar 1332

While deciding whether the fashion show organised by the appellant, falls within the expression ‘entertainment’ and there had been ‘payment for admission’ so as to attract the relevant charging provisions of the Act, 1958, the Division bench headed by Chief Justice Dinesh Maheshwari held that ‘fashion show’ falls within the expression ‘entertainment’ and hence liable to attract state tax.

Anusha N. v. Union of India, 2018 SCC OnLine Kar 2358

“Public Interest Litigation cannot be used as a tool to wreck vengeance”

Dismissing the PIL by the petitioner who had filed several criminal charges against her husband, the Division bench of Dinesh Maheshwari, CJ. and S. Sujatha, J., held that the scope of public interest litigation cannot be widened to serve private interest in the pending litigation in order to being reforms in the justice delivery system.

“The fundamental object of public interest litigation is to enforce fundamental rights and genuine infraction of statutory provisions but not to set right the private dispute or to bring the parties to terms.”

Sekhar S. Iyer v. Chief Secretary, Government of Karnataka, 2018 SCC OnLine Kar 3811

While deciding the issue whether the post of deputy chief minister is unconstitutional, a Division bench of Dinesh Maheshwari*, C.J. and Krishna S. Dixit, J., held that the post of deputy chief minister is not unconstitutional and a mere description of any minister in the council of ministers as a deputy chief minister does not confer any power of chief minister to such person.

“…mere description of any Minister in the Council of Ministers as Deputy Chief Minister does not confer the person concerned with any powers of the Chief Minister and does not result in any unconstitutionality.”

The Court also observed that there was no justification for filing the writ petition as a PIL and the petition filed by the petitioner is an example of “entirely frivolous, meaningless, unnecessary and unwarranted PIL petition in this Court and that too, by none other but a person who is engaged in teaching Business Law and is not oblivious of the legal process.”

Tenzing Choden Sherpa v. Union of India, 2017 SCC OnLine Megh 35

“Any decision by any Ministry cannot override the plain provisions of law nor any correspondence or any communication could do so.”

The Division Bench of Dinesh Maheshwari*, C.J., and Ved Prakash Vaish, J., held that all Tibetans born in India after 26 January 1950 and before 1 July 1987, as per the Citizenship Act, 1955 are to be considered as Indians.

The Court opined that the respondents were unjustified in denying the rights to the petitioners as citizens of India and such rights flow directly and unfailingly by the operation of the plain provisions of law i.e. by operation of Section 3 of the Act of 1955.

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A.P. Ranganatha v. Chief Election Commission, 2018 SCC OnLine Kar 3837

A Division bench comprising of Dinesh Maheshwari*, CJ. and S. Sujatha, J., held that a decision to hold bye-elections in a vacant constituency on account of it being unrepresented for more than a year cannot be held invalid.

“Looking to the purport and purpose of Clause (a) of proviso to Section 151A of the Act of 1951, it is but clear that the period of one year as referred in Clause (a) is not referring to the term of the newly elected member after occurrence of vacancy, but the same refers to the remaining term from the date of occurrence of vacancy and that ought not be less than one year.”

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SCOPE v Karnataka State Open University, 2018 SCC OnLine Kar 1568

Dinesh Maheshwari, J. while hearing a civil writ petition for appointment of arbitrator opined that termination of agreement does not automatically terminate the arbitration clause contained in such agreement.

“…where the parties stand at conflict and disputes do exist and looking to the terms of the agreement, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide the disputes between the parties, including their claims, counter claims and objections.”

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Vijay Mallya v. State Bank of India, 2018 SCC OnLine Kar 1733

Dismissing the writ petition filed by industrialist Vijay Mallya, a Division bench of Dinesh Maheshwari and Krishna N. Dixit, JJ., held that DRAT’s requirement of pre-deposit for maintaining the appeal was legitimate.

“This requirement cannot be construed as a pre-condition for restoring the appeal but has to be understood as the requirement of Section 21 of the Act for maintaining the appeal.”

The Court while explaining the nature and effect of amendment to Section 21 of Recovery of Debts due to Banks and Financial Institutions Act, 1993 observed that Section 21 of the Act of 1993 does not directly deals with the right of appeal but deals with the conditions, subject to which the said right becomes exercisable.

“the right of appeal is a matter of substantive law; this right may be absolute or conditional, as may be provided by law that creates the said right; it is also well settled that the right of appeal although accrues to a party when the litigation originally commences, the same becomes exercisable after an adverse order is made against him.”

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† Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

** Judge who has penned the dissenting judgment.

[1] https://theprint.in/judiciary/scs-newest-judges-had-set-aside-aap-mla-disqualification-ruled-fashion-shows-are-taxable/179680/

[2] https://theprint.in/judiciary/scs-newest-judges-had-set-aside-aap-mla-disqualification-ruled-fashion-shows-are-taxable/179680/

COVID 19

The Delhi Government received a request from the Delhi High Court for setting up a Covid Health Care facility for the Honourable judges and other judicial officers of the Delhi High Court and their families. Complying with the request, through Order F. No. SDM/CH.Puri/Covid-19/2020/332-343 dated 25th April, 2021, the Delhi government through Geeta Grover, Incident Manager/SDM, Sub-Division Chanakyapuri, ordered that 100 rooms at Ashoka hotel, New Delhi be set up as a COVID care facility exclusively for judges and judicial officers of the Delhi High Court and their families. The hotel will be at the disposal of Primus Hospital, Chanakyapuri with immediate effect with the following directions:

 

  • Primus Hospital will run the Covid Health Care (CHC) at Ashoka Hotel;
  • The disposal of the bio medical waste will be the responsibility of the hospital;
  • The staff of the hotel will be provided with all protective gear and given basic adequate training
  • Ambulance for the transfer facility will be provided by Primus Hospital.
  • If there is any shortage in the hotel staff, Primus  hospital should arrange their staff;
  • All services including rooms, housekeeping, disinfection and food for patients will be provided by the hotel;
  • The charges shall be collected by the hospital and the hospital shall make payment to the hotel.
  • The hospital may accommodate their own doctors, nurses and other paramedical staff at their own expenses after deciding the rates mutually.
  • Mr Dinesh Kumar Meena, Executive Magistrate, New Delhi is directed to coordinate with Primus Hospital and the Hotel Ashoka Authorities for setting up of the facility.

Non compliance of this order shall attract penal action as per Disaster Management Act read in conjunction with Epidemic Disease Act, 1897 and Section 188, Penal Code, 1860

Case BriefsSupreme Court

Supreme Court: Activating the “dormant” Article 224A of the Constitution, the 3-judge bench of SA Bobde, CJ and Sanjay Kishan Kaul and Surya Kant, JJ has issued some general guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent.

While the discretion of the Chief Justice of the High Court under Article 224A is not, the Court stated that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments.

GUIDELINES

i. Trigger Point for activation of Article 224A:

The Trigger Point cannot be singular and there can be more than one eventuality where the it arises

  1. If the vacancies are more than 20% of the sanctioned strength.
  2. The cases in a particular category are pending for over five years.
  3. More than 10% of the backlog of pending cases are over five years old.
  4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
  5. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

ii. Embargo Situation:

If recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise.

As per data, there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline.

“Thus, the parameter we have adopted is that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A.”

iii. Pre-recommendation process:

  1. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog.
  2. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court.

iv. Methodology of Appointment:

Para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution must be followed to see the progress made and impediments, if any. However, since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period.

v. Time to complete the process:

The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. Since there are a number of aspects not required to be adverted to for appointment under Article 224A, a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment.

vi. Tenure of Appointment:

The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years.

vii. Number of Appointments:

At least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.

viii. Role of ad hoc Judges:

  • More than five year old cases to be assigned to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, keeping the primary objective to deal with long pending arrears in mind.
  • A division bench of ad hoc Judge and sitting Judge in matters to be heard by Division Bench not to be constituted. The Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them.
  • Because of the very nature of the profile and work to be carried out by ad hoc Judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance.

ix. Emoluments and Allowances:

“For all practical purposes the ad hoc Judge would receive the same emoluments, allowances and benefits as are admissible to the permanent/additional Judges.”

  • The emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension.

“This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines.”

  • Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances.

“… it is a misconceived notion that there will be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in, the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually results in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks.”

  • All allowance/perks/perquisites as are admissible to the permanent/additional Judge(s) would be given to the ad hoc Judge(s).
  • As far as housing accommodation is concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions.

The Court concluded with the following words,

“We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring/retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, we will endeavour to iron them out.”

[Lok Prahari v. Union of India, WRIT PETITION (C) NO. 1236 OF 2019, decided on 22.04.2021]

Appointments & TransfersNews

President appoints the following ten Judges to be the Permanent Judges of the Allahabad High Court:

  • Ali Zamin
  • Vipin Chandra Dixit
  • Shekhar Kumar Yadav
  • Ravi Nath Tilhari
  • Deepak Verma
  • Gautam Chowdhary
  • Shamim Ahmed
  • Dinesh Pathak
  • Manish Kumar
  • Samit Gopal

Ministry of Law and Justice

[Notification dt. 23-03-2021]

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium has approved the proposal for elevation of the following Advocates as Judges in the High Courts:

High Courts

Name

Madhya Pradesh

 ·       Dr Vivek Sharan

·      Nidhi Patankar

·       Pranay Verma
Punjab and Haryana ·       Shri Vikas Bahl
Jammu and Kashmir

·      Shri Rahul Bharti

Supreme Court of India

Appointments & TransfersNews

Collegium Statement

Supreme Court collegium reiterates its recommendations for the elevation of the following Advocates as Judges in High Courts:

High Courts

Name
Kerala Shri Viju Abraham
Kerala Shri Mohammed Nias C.P. and Shri Paul K.K.
Karnataka Nagendra Ramachandra Naik
Himachal Pradesh Shri Satyen Vaidya

Supreme Court of India

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium has approved the proposal for elevation of Shri A. Badharudeen, Judicial Officer as Judge of the Kerala High Court.

 

 

 

Supreme Court of India

Appointments & TransfersNews

Collegium Statement

On 5th March 2021, Supreme Court Collegium approved the proposal for the appointment of the following Additional Judges as Permanent Judges of Allahabad High Court:

  1. Shri Justice Ali Zamin,
  2. Shri Justice Vipin Chandra Dixit,
  3. Shri Justice Shekhar Kumar Yadav,
  4. Shri Justice Ravi Nath Tilhari,
  5. Shri Justice Deepak Verma,
  6. Shri Justice Gautam Chowdhary,
  7. Shri Justice Shamim Ahmed,
  8. Shri Justice Dinesh Pathak,
  9. Shri Justice Manish Kumar, and
  10. Shri Justice Samit Gopal.

Supreme Court of India

Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J., addressed the instant petition against the order of State whereby the petitioner’s application for voluntary retirement was treated as an application for resignation.

On 31-10-2005 the petitioner filed an application to the Secretary, Health Department, stating therein that due to certain personal and family reasons the petitioner was not in a position to discharge his official duty with responsibility. Hence, he may be permitted to retire voluntarily with effect from 01-02-2006. Since, the petitioner had not completed 20 years of service for retiral benefit, the petitioner made further prayer in the said application that the intervening period between 01-11-2005 to 31-01-2006 be treated as a period spent on extra-ordinary leave.

The technical difficulty in allowing voluntary retirement was that the petitioner had not completed 30 years qualifying service or attained 50 years of age on the date of application for voluntary retirement as required by Rule 74(b) of the Bihar Service Code. The respondent initiated a departmental proceeding against the petitioner on the ground that the petitioner was absent from duty without any permission of the authority and was reportedly engaged in services of some other State. Consequently, the respondent treated the application of the petitioner as an application of resignation without any rhyme or reason or any such averment in the application.

Noticing that the authorities did not take any decision on the prayer of the petitioner for voluntary retirement made in the year 2006 till 2013 and in 2013 the petitioner was fulfilling the conditions for voluntary retirement as per Rule 74(b) of the Bihar Service Code and had already completed 50 years of his age for qualifying to make prayer for voluntary retirement., the Bench stated,

“Either the authorities should have accepted the prayer of the petitioner or would have rejected the same in toto but they could not have treated the same as application of resignation.”

Therefore, it was held that the act of respondent suffered from arbitrariness and takes away the valuable legal right of the petitioner which made it unsustainable in law.  Hence, the impugned order was quashed. The respondents were directed to treat the prayer of the petitioner as prayer for voluntary retirement with all the retiral benefits according to law which would be effective from the date of the impugned order, i.e., 02-01-2013. [Vinoy Singh v. State Of Bihar, CW No. 1556 of 2019, decided on 19-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Murali Purushothaman (ii) Ziyad Rahman Alevakkatt Abdul Rahiman (iii) Karunakaran Babu and (iv) Dr. Kauser Edappagath, to be Additional Judges of the Kerala High Court.

Read more about Judges:

Murali P., LL.B., was enrolled as an Advocate on 09.03.1991. He has 28 years of experience, practicing in High Court of Kerala from 11.03.1991 to 16.07.2019 in Election Law, Family Law, Labour Law, Cooperative Society Law, Contract Law, Constitutional Law and Service Law. He has specialisation in Election and Service Law. He was Standing Counsel for the State Election Commission, Delimitation  Commission of Kerala, Admission and Fee Regulatory Committee for Self Financing Professional Colleges and as Government Pleader in the High Court of Kerala in 2001.

Ziyad Rahman A.A, BA, LL.B., has 22 years of experience, practicing in the High Court of Kerala and also appeared before in Subordinate Courts, Tribunals in Constitutional, Civil, Land Laws, Electricity Criminal, Banking, Motor Vehicles, Insurance, Labour, Company, Consumer, Administration, Municipality, Taxation, Rent Control law matters and has specialisation in Electricity Laws, Motor Vehicle Laws, Insurance Act, Employees Compensation Act, Constitutional matters.

Shri K. Babu, M.A (Economics), LL.B, LL.M., joined Judicial Service on 21.05.2009 as Additional District Judge-I and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District Judge, Thiruvanthapuram in addition appointed as Chairman of the Administrative Committee of Sree Padmanabha Swamy Temple by the Hon ‘ble Supreme Court of India w.e.f. 19.11.2018.

Dr. Kauser Edappagath, BA (Law), LL.B, LL.M, Ph.D., joined Judicial Service on 21.05.2009 as Additional District and Sessions Judge and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District and Sessions Judge/ State Transport Appellate Tribunal, Ernakulum since 08.01.2018.

Link to the notification: Order of Appointment

Ministry of Law and Justice

[Notification dt. 22-02-2021]

Appointments & TransfersNews

Four Additional Judges elevated as Judges in Karnataka High Court

President appoints S/Shri Justices (1) Singapuram Raghavachar Krishna Kumar (2) Ashok Subhashchandra Kinagi (3) Suraj Govindaraj and (4) Sachin Shankar Magadum, Additional Judges of the Karnataka High Court, to be Judges of the Karnataka High Court.

Read more about the Judges:

Shri Justice Singapuram Raghavachar Krishna Kumar, B.A.L., LL.B, was enrolled as an Advocate on 29.08.1992. Since then he has practiced in Karnataka High Court and Subordinate Courts at Bangalore in civil, constitutional, matrimonial, company, consumer disputes and arbitration matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09,2021.

Shri Justice Ashok Subhash Chandra Kinagi, B.Sc., LL.B., was enrolled as Advocate on 02.06.1995. He practiced in Karnataka High Court in civil, labour, service and constitutional matters. He was appointed as Central Government Standing Counsel during 2008 2012. He also worked as part time Lecturer in a Law College from July 1997 to March 2006. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Govindaraj Suraj, B.A., LL.B., was enrolled as Advocate on 23.06.1995. He practiced in civil, constitutional, company and arbitration matters in Karnataka High Court, various High Courts, Tribunals and Supreme Court and before various Tribunals. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Sachin Shankar Magadum, B.Sc., LL.B., has practiced in Karnataka High Court at Bangalore and at Dharwad Bench in civil, criminal, constitutional, service and matrimonial matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Link to the Notification: Order of Appointment

Ministry of Law and Justice

[Notification dt. 22-02-2021]

Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Jasmeet Singh and (ii) Amit Bansal, to be Judges of the Delhi High Court.

Shri Jasmeet Singh, B.Com (Hons), LL.B, has 27 years of experience, practicing Delhi High Court and Subordinate Courts from 1992 onwards. He has been practising in Constitutional, Civil, Labour, Service, and Matrimonial covering all branches of Law. He has specialization in Service and Civil Law.

Shri Amit Bansal, B.Com. (Hons), LL.B, LL.M, has specialization in Education Laws, Arbitration Laws, Indirect Taxes Law, Service Law. He served as Senior Standing Counsel, Central Board of indirect Taxes and Customs, Standing Counsel and Legal Advisor, Central Board for Secondary Education (CBSE) from 2004, National Testing Agency (NTA), Additional Standing Counsel, University of Delhi, in the Delhi High Court from 2008 and Additional Standing Counsel, NDMC from 1999-2005.

Link to the notification: Order of Appointment

Ministry of Law and Justice

Notification dt. 22-02-2021

Appointments & TransfersNews

President appoints Justice Puligoru Venkata Sanjay Kumar, Judge of the Punjab and Haryana High Court, to be the Chief Justice of Manipur High Court.

NOTIFICATION

Ministry of Law and Justice

[Notification dt. 12-02-2021]