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

Amazon-Future-Reliance Dispute

[Future Coupons (P) Ltd. v. NV Investment Holdings LLC., 2022 SCC OnLine SC 188

The 3-judge bench of NV Ramana, CJ and AS Bopanna and Hima Kohli, JJ has granted liberty to Future Retail Limited (FRL) to approach the Delhi High Court by filing an application seeking continuation of the NCLT proceedings beyond the 8th Stage i.e. Meeting of Shareholders and creditors.

Read more…

Promotion Scheme vs. Recruitment Regulations

Employees’ State Insurance Corpn. v. Union of India, 2022 SCC OnLine SC 70

While adjudicating the issue as to whether promotion scheme implemented by office memorandum supersedes recruitment regulations, the Division Bench of Dr Dhananjaya Y Chandrachud* and A S Bopanna, JJ., held that regulations made under the statute have the force of law. The Bench expressed,

“The ESIC Recruitment Regulations 2015 had precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare.” 

Read more…

Bullet Train Project

National High Speed Rail Corporation Limited v. Montecarlo Ltd., 2022 SCC OnLine SC 111

In the Bullet Train Project case where Japan International Cooperation Agency (JICA) had rejected Montecarlo Limited’s technical bid, the bench of MR Shah* and AS Bopanna, JJ has reversed the Delhi High Court verdict that had set aside JICA’s conscious decision and has held that when the author of the tender document, JICC/JICA, had taken a conscious decision that the Bid submitted by the respondent can be said to be non-responsive and suffering from material deviation, it was not for the High Court to consider/opine whether the Bid submitted by the original writ petitioner is substantially responsive Technical Bid or not unless the decision is found to be perverse and/or suffered from mala fides and/or favoritism.

Read more…

OBC reservation in NEET PG and UG Admissions in AIQ quota

Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75

In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG  medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

Read more…

Compound Interest by Arbitration Tribunal

UHL Power Co. Ltd. v. State of Himachal Pradesh, 2022 SCC OnLine SC 19

The 3-judge Bench comprising of N.V. Ramana, CJ., A.S. Bopanna and Hima Kohli*, JJ., held that Arbitral Tribunal is empowered to award interest on post award interest.

The instant appeal was filed by UHL Power Co. Ltd. against the order of the Himachal Pradesh High Court disallowing it pre-claim interest i.e., interest from the date when expenses were incurred, till the date of lodging the claim.

Read more…

Interpretation of Dowry Demand

State of Madhya Pradesh v. Jogindra, 2022 SCC OnLine SC 33

In a case where the Madhya Pradesh High Court had held that demand of money for construction of a house cannot be treated as a dowry demand, the 3-judge bench of NV Ramana, CJ and AS Bopanna and Hima Kohli*, JJ has found the said observation erroneous and has held that the word “Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature.

Read more…

Powers of NCLT under IBC

E S Krishnamurthy v. Bharath Hi Tech Builders Pvt. Ltd, 2021 SCC OnLine SC 1242

The Division Bench comprising of Dr Dhananjaya Y Chandrachud* and A S Bopanna, JJ., held that the powers of NCLT under S. 7(5) of IBC are limited to verifying existence of default and then accordingly, either admit or reject an application. Holding that the Adjudicating Authority cannot compel a party to the proceedings before it to settle a dispute, the Bench remarked,

“While the Adjudicating Authority and Appellate Authority can encourage settlements, they cannot direct them by acting as courts of equity.”

Read more…

NCLT’s Power to entertain an arbitrable dispute

TATA Consultancy Services Ltd. v. SK Wheels Pvt. Ltd., 2021 SCC OnLine SC 1113

In a landmark case the Division Bench of Dhananjaya Y Chandrachud* and A S Bopanna, JJ., clarified the residuary powers of NCLT under Insolvency and Bankruptcy Code (IBC). The Bench stated,

“In terms of Section 238 and the law laid down by this Court, the existence of a clause for referring the dispute between parties to arbitration does not oust the jurisdiction of the NCLT to exercise its residuary powers under Section 60(5)(c) to adjudicate disputes relating to the insolvency of the Corporate Debtor.”

Read more…

Article 14: Under-inclusive and over-inclusive classification

State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association, 2021 SCC OnLine SC 1114,

The bench of Dr. DY Chandrachud* and AS Bopanna, JJ while upholding the constitutionality of the Scheme formulated by the State of Tamil Nadu granting loan waiver to small and marginal farmers as these farmers suffer a greater degree of harm because of their limited capacity and aid, had the occasion to discuss in detail the under-inclusive and over-inclusive classification and explained that a statute is ‘under-inclusive’ if it fails to regulate all actors who are part of the problem and it is ‘over-inclusive’ if it regulates actors who are not a part of the problem that the statute seeks to address. Read more…

Arbitration Act and Powers of High Courts

Punjab State Civil Supplies Corporation Ltd. v. Ramesh Kumar and Company, 2021 SCC OnLine SC 1056

In a case where the Punjab and Haryana High Court not only set aside the judgment of the District Judge rejecting the petition under Section 34 of the Arbitration and Conciliation Act 1996, but also awarded the claim of the respondents, together with interest, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ set aide the said judgment after holding that the High Court seems to have proceeded as if it was exercising jurisdiction in a regular first appeal from a decree in a civil suit.

It explained,

“The jurisdiction in a first appeal arising out of a decree in a civil suit is distinct from the jurisdiction of the High Court under Section 37 of the 1996 Act arising from the disposal of a petition challenging an arbitral award under Section 34 of the 1996 Act.”

Read more…

Gratuity (Amendment) Act, 2010 | Retrospective Affect

Krishna Gopal Tiwary v. Union of India, 2021 SCC OnLine SC 581

The Division Bench of Hemant Gupta and A.S. Bopanna, JJ., addressed whether the 2010 amendment of Payment of Gratuity Act 1972 is retrospective.

In the instant matter, Jharkhand High Court’s decision has been challenged whereby the claim of the appellants to declare the applicability of Payment of Gratuity (Amendment) Act, 2010 from 1-1-2007 was declined. Read more…

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 Sahu2020 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…

† Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. has put this report together







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

Pappu v. State of U.P., 2022 SCC OnLine SC 176

In a case where a man had brutally raped and murdered a 7-year-old girl, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has reversed the concurrent findings of the Courts below and has commuted the death sentence into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct.”

Read More…

B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294

While clarifying the law on leave to defend, the Division Bench of Vineet Saran and Dinesh Maheshwari*, JJ., held that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious.

Read More…

Explained| Grant of Leave to Defend: The best approach | Read More…

Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behaviour resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

The bench observed,

“Only a graded approach is the essence of a rational and logical approach; and only such action of the Legislature which is necessary for orderly conduct of its scheduled business of the ongoing Session can be regarded as rational approach. Suspension beyond the Session would be bordering on punishing not only the member concerned, but also inevitably impact the legitimate rights of the constituency from where the member had been elected.”

Resultantly, the 12 MLAs are entitled for all consequential benefits of being members of the Legislative Assembly, on and after the expiry of the period of the remainder of the concerned Session in July 2021.

Read More…

State of Haryana v. Daronacharya College of Engineering, Special Leave to Appeal (C) No(s). 31730 of 2016

While holding that the term “school children” will include college and university as well while interpreting government memo exempting passengers tax in respect of Stage Carriage (buses) owned by educational institution and used for the transportation of children to and from such institutions, the Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., remarked,

“It gets perforce reiterated that the broad expression “children”, obviously, refers to the students taking instructions in educational institutions, irrespective of their class or standard or level.”

Read More…

Union of India v. Raj Grow Impex LLP,  2021 SCC OnLine SC 429

In the case relating to confiscation of a large quantity of yellow peas imported from China, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and Krishna Murai, JJ has held that the goods in question are to be held liable to absolute confiscation but with a relaxation of allowing reexport, on payment of the necessary redemption fine and subject to the importer discharging other statutory obligations.

Noticing that the personal interests of the importers who made improper imports are pitted against the interests of national economy and more particularly, the interests of farmers, the Court said,

“When personal business interests of importers clash with public interest, the former has to, obviously, give way to the latter.”

Read More…

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.”

Read More…

 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.”

Read More…

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.

Read More…

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.”

Read More…

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.”

Read More…

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.”

Read More…

† Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

** Judge who has penned the dissenting judgment.



Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges of the Kerala High Court as Permanent Judges of that High Court:

1. Shri Justice Murali Purushothaman,

2. Shri Justice Ziyad Rahman A.A.,

3. Shri Justice Karunakaran Babu, and

4. Dr. Justice Kauser Edappagath.

Supreme Court of India

[Collegium Statement dt. 10-5-2022]

Case BriefsSupreme Court

Supreme Court: In a case where a Judge was accused of misconduct, the bench of Dr. DY Chandrachud and Bela M. Trivedi, JJ has held that showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration.

“It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”

The appellant in the case at hand had joined the Uttar Pradesh Judicial Services in the year 1978 and sought voluntary retirement from the said services in September 2003. Immediately after the retirement, appellant joined as a Judicial Member, Central Administrative Tribunal, Mumbai Bench, Mumbai.

On 19.07.2005, the appellant was informed that the Allahabad High Court had initiated a departmental enquiry against him. There were twelve charges levelled against the appellant in the said chargesheet. It was alleged against that the appellant, while posted as the 11th Additional District Judge, Agra during the period from 23.05.2001 to 19.05.2003, had decided a batch of matters under the Land Acquisition Act, 1894 and had awarded enhanced compensation which was multiple times more than the investments made by the subsequent purchasers of the acquired lands; that such subsequent purchasers had no right to claim compensation for the acquired lands; that the appellant had determined the compensation in terms of square yards and not in terms of bighas, and had awarded such compensation in flagrant violation of the cardinal principles of law and equity and against all judicial norms and propriety, with a view to unduly favour such subsequent purchasers. It was therefore alleged that the appellant had failed to maintain absolute integrity and complete devotion to duty, and thereby had committed a misconduct within the meaning of Rule-3 of U.P. Govt. Servants Conduct Rules, 1956. Once charge levelled against the appellant pertained to an undue favour shown to the son of a Counsel named Shri KC Jain, by exorbitantly enhancing the compensation in his favour.

The Supreme Court observed that when the Enquiry proceedings have been found to have been conducted in proper and legal manner, and when the High Court on administrative side as well as on judicial side, has accepted the findings recorded by the Enquiry Officer qua the charge levelled against the appellant as “proved”, holding him guilty of having committed “misconduct”, it was not expected to sit as an appellate authority and revaluate the adequacy or reliability of the evidence adduced before the Enquiry Officer.

The Court observed,

“There was enough evidence and material to show that the appellant had misconducted himself while discharging his duties as a judicial officer, and had passed the judicial orders in utter disregard of the specific provisions of law, to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive. Under the circumstances, the High Court was perfectly justified in exercising its supervisory jurisdiction under Article 235 of the Constitution.”

[Muzaffar Hussain v. State of Uttar Pradesh, 2022 SCC OnLine SC 567, decided on 06.05.2022]

*Judgment by: Justice Bela M. Trivedi


For appellant: Senior Advocate Pradeep Kant

For respondent no. 2: Advocate Charu Ambwani

Appointments & TransfersNews

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

1. Shri Vikas Mahajan,

2. Shri Tushar Rao Gedela,

3. Ms. Manmeet Pritam Singh Arora,

4. Shri Sachin Datta,

5. Shri Amit Mahajan,

6. Shri Gaurang Kanth, and

7. Shri Saurabh Banerjee.

Supreme Court of India

[Statement dt. 4-5-2022]

Appointments & TransfersNews

President appoints Justice Sudhanshu Dhulia, Chief Justice of the Gauhati High Court and Justice Jamshed Burjor Pardiwala, Judge of the Gujarat High Court to be Judges of the Supreme Court of India.

Ministry of Law and Justice

[Notification dt. 7-5-2022]

Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the elevation of the following Judicial Officers as Judges in the Patna High Court:

1. Shri Shailendra Singh,

2. Shri Arun Kumar Jha,

3. Shri Jitendra Kumar,

4. Shri Alok Kumar Pandey,

5. Shri Sunil Dutta Mishra,

6. Shri Chandra Prakash Singh, and

7. Shri Chandra Shekhar Jha.

Supreme Court of India

[Statement dt. 4-5-2022]

Appointments & TransfersNews

Supreme Court Collegium has recommended the elevation of the following Chief Justice / Judge of the High Courts, as Judges in the Supreme Court:

1. Mr Justice Sudhanshu Dhulia, Chief Justice, Gauhati High Court, (PHC: Uttarakhand); and

2. Mr Justice J.B. Pardiwala, Judge, Gujarat High Court

Supreme Court Collegium

[Statement dt. 5-5-2022]

Hot Off The PressNews

President appoints (1) Miss Justice Kesang Doma Bhutia, S/Shri Justices (2) Rabindranath Samanta, (3) Sugato Majumdar, (4) Bivas Pattanayak, and (5) Ananda Kumar Mukherjee, Additional Judges of Calcutta High Court to be Judges of Calcutta High Court with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Notification dt. 27-4-2022]

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

7 Interesting Picks of the Week Gone by.

Under Muslim Personal law, can Family Court dissolve the marriage of a couple? Bom HC elaborates

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

Read full report here…

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same? Read decision

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

Read full report here…

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

The petitioner/defendant filed written statement contending that the suit promissory note is a forged document and his signatures were forged. At the evidence stage, the petitioner filed an interim application under Section 45 of the Indian Evidence Act, 1872 to send a promissory note to the handwriting expert by receiving specimen writings in the four promissory notes which are annexed to the said application and to receive his specimen signatures in the open Court along with the vakalatnama and written statement for comparison. The respondent/plaintiff filed counter and opposed the said application.

Read full report here…

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice: Madras HC

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the ConstitutionM. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Read full report here…

Mother alleged to have extra-marital affair, will father be granted custody of children? Guj HC decides

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

Read full report here…

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl? Chh HC explains

Deepak Kumar Tiwari, J., held that, when the accused has not played an active role or persuaded the victim and the victim voluntarily left the protection of her parents and having the capacity to know her action, no offence of abduction is made out.

Read full report here…

Promotional activity for IPL not covered under ‘Business Auxillary Service’; Anil Kumble not liable to pay Service Tax

The Coram of P. Anjani Kumar (Technical Member) and P. Dinesha (Judicial Member) allowed appeals against the order of First Appellate Authority which upheld the demand for service tax by the adjudicating authority.

Read full report here…

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

Why was the present application filed?

  • Set aside and/or quash the notification/office memorandum dated 13-7-2021 issued by the Union of India through Ministry of External Affairs
  • Set aside the communication issued by the Ministry of Law and Justice
  • Stay the operation of the notification/office memorandum dated 13-7-2021 issued by the Union of India through the Ministry of External Affairs during the pendency of the present application.

Concern was with regard to the aspect embedded in paragraphs 2 and 3 of the Office Memorandum dated 13-7-2021 requiring the Judges of the Supreme Court and High Courts to obtain political clearance for private visits abroad.

The sum and substance of the O.M. was that it required judges of Constitutional Courts i.e., the Supreme Court and the High Court to seek political clearance qua private visits to foreign countries, infringes not only their right of privacy but also, in a sense, degrades and/or diminishes the high office that they hold.

High Court noted that on 15-2-2011, guidelines had been issued concerning foreign visits by Judges of the Supreme Court and High Courts.

This Court by a decision dated 25-5-2012 had issued a slew of directions concerning the above-said guidelines. Though the Court did not deem it fit to pass any directions vis-à-vis the paragraph with regard to dispensing with the requirement of the Judges of the Supreme Court and the High Courts to obtain political clearance for private foreign visits.

Bench opined that the O.M dated 13-7-2021, requiring the Judges of the Supreme Court and High Courts to seek political clearance for private foreign visits is uncalled for, given the high offices they are holding, especially given the fact that nothing has changed since the 2011 guidelines were issued.

With regard to the relief sought in clause (b) was concerned, the said will have to be partially allowed as it was a communication addressed by the Government of India, Ministry of law and Justice, Department of Justice to the Secretary-General, Supreme Court of India and the Registrar Generals of High Courts requiring them to take “appropriate action” in consonance with the O.M. Since Court has struck down the O.M. to the extent it requires judges of the Supreme Court and the High Courts to the obtain political clearance qua foreign (private) visit, the said communication, which is, dated 18.08.2021 will get truncated to that degree.

In view of the above analysis, the application was closed. [Aman Vachar v. Union of India, WP (C) No. 2712 of 1991, decided on 1-4-2022]

Advocates before the Court:

For the Petitioner:


For the Respondent:

Mr Tushar Mehta, Solicitor General of India with Mr Imon Bhattacharya, Adv.

Case BriefsHigh Courts

Madras High Court: The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

Petitioner sought for quashing the impugned order in which her services as Special Public Prosecutor was terminated with immediate effect.

According to the petitioner, she was sincere and hardworking and out of 439 cases disposed, she was instrumental in ensuring conviction and severe punishments in 16 cases which was widely appreciated by the Police, Bench and Bar. However, according to her an anonymous complaint against her casting aspersions on her honesty and integrity was taken cognizance by the then-District Collector (2nd respondent).

On the report of the Superintendent of Police (3rd respondent) and the District Collectors’ findings, the State Government (1st respondent) terminated the services of petitioner, which according to the petitioner was unjust and unreasonable.

High Court’s Findings

Bench noted that there were allegations of corruption made against the petitioner which were true and that she had also misused her position by extracting menial work from the police constables on Court duty. Earlier, a ‘road roko’ agitation by the Advocates in order to remove the petitioner from her post also occurred.

It was further found that in a POCSO case, the petitioner had received illegal gratification from the accused and ensured their acquittal on flimsy grounds was referred to by the District Collector.

Amongst a few letters against the petitioner, in one of the letters, there was mention of the corrupt practices of the petitioner and how she had tried to convince the victim and their parents in the POCSO case to compromise with the accused by receiving compensation.

A famous quote is “truth is like the sun. You can shut it out for a time, but it ain’t going away.” 

High Court stated that,

Every Advocate is a Court officer and part and parcel of the justice delivery system. The public reposes great faith in the judiciary but the judges have to rely on their pillars, the advocates.

Bench found from the records that the petitioner had been demanding bribes and acted like an extra-constitutional authority attempting to fix up compromises in serious cases of offence and this caused a serious dent in the justice delivery system.

Lastly, the Court found no violation of natural justice nor any fundamental rights.

Therefore, in view of the above, a petition was dismissed. [Dhanalakshmi v. State, 2022 SCC OnLine Mad 1275, decided on 22-3-2022]

Advocates before the Court:

For Appellant: Mr P. Subba Reddy

For Respondents: Mrs V.Y amuna Devi Special Government Pleader

Appointments & TransfersNews

President appoints S/Shri (i) Rajiv Roy, and (ii) Harish Kumar, to be Judges of the Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Notification dt. 24-3-2022]

Appointments & TransfersNews

President appoints (i) Smt. Poonam A. Bamba and (ii) Ms. Swarana Kanta Sharma, to be Judges of the Delhi High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Notification dt. 24-3-2022]

Appointments & TransfersNews

President appoints S/Shri (1) Kasoju Surendhar alias K. Surender, (2) Smt. Surepalli Nanda, (3) Mummineni Sudheer Kumar, (4) Smt. Juvvadi Sridevi alias Kuchadi Sridevi, (5) Natcharaju Shravan Kumar Venkat, (6) Smt. Gunnu Anupama Chakravarthy,(7) Smt. Maturi Girija Priyadarsini alias Priyadarshini, (8) Sambasivarao Naidu, (9) Anugu SanthoshReddy and (10) Dr. Devaraju Nagarjun, to be Judges of the Telangana High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Notification dt. 22-3-2022]

Op EdsOP. ED.


Judicial legislation is nothing but law pronounced, proclaimed and declared by the judiciary–more particularly the Supreme Court, this is also known as “judicial law” or “Judge-made law”. Even though enacting legislation is the constitutional prerogative of the legislature. There may be circumstances where the existing laws made by the legislature prove to be inadequate in the process of administration of justice. It is said that even if Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society1.

“The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna2.” In such situations, the directions issued by the higher judiciary, to fill the vacuum until the legislature enacts substantive law is also a constitutional prerogative to meet the ends of the justice. Hence to meet the needs of society, the Judges do make law and it is now recognised everywhere.

But this shall not be vented out as activism, as Judge-made law or judicial law is also formally recognised under Article 133, where legislature or “other competent authority” is inclusive of judiciary and even considering wide power of the Court under Articles 324, 2265, 2276, 1417 and 1448 it is quite clear that the Constitution has bestowed the power on the courts to legislate wisely9. The initial years of the Supreme Court of India were the adoption of the British tradition of limited judicial review with a very cautious approach. Later on, the struggle for supremacy is very well known. In the 1960s and 1970s, the Court delivered landmark judgments which changed the course of the Indian judiciary and political scenario.

In the post emergency era, Maneka Gandhi’s10[1] judgment brought human rights jurisprudence by widening the scope of various constitutional provisions. For example, Articles 1411 and 2112 has been expanded manifold by judicial creativity. Later on, public interest litigation was a stepping stone devised by the constitutional courts for ameliorating the social and economic conditions of the society resulted in the evolution of human rights, environmental, compensatory jurisprudence and more so the poverty jurisprudence[2]13.

The beauty of social dynamics through Judge-made law is that it aims at evolution and not revolution and that is why it has come to be widely accepted14. “The problems before the Supreme Court require at times the economist’s understanding, the poet’s insight, the executive’s experience, the politician’s scientific understanding and a historian’s perspectives”15 to add to this sometime legislative duties are also required. In this process, it has in a way rewritten the Constitution and filled the existing laws with necessary lifeblood through its interpretation.

Jurisprudence vis-à-vis Judge-made law

In 19th century English Jurists Bentham and Austin created classical positivist jurisprudence, while Bentham’s legal philosophy “utilitarian individualism” condemned Judge made law. Even in Austin’s theory, there is no place for Judge-made law. Later this was developed in the 20th century by Hart, Kelsen and others, who taught that lawmaking is the task of the legislature, not the judiciary. The latter’s job is only to interpret the law made by the legislature and direct its enforcement.16

In sociological school of jurisprudence, which started in Europe towards the end of the 19th century by Geny, Duguit, etc and developed in the United States by Roscoe Pound and others opined that Judges can, and in fact do legislate. Pound’s functional theory paved the way for the more extreme school of sociological jurisprudence in the USA, the realist school.

According to Gray, one of the founders of the realist school, statutes, rules, etc. is not law but the material which the Judge uses in making law17. Gray observed, “it has sometimes been said that law is composed of two parts, legislative law and Judge-made law, but in truth, all the law is Judge-made law”. Frank Llewelyn went to an extreme and said that the only real law is Judge-made law and that the Judges were creators rather than the discoverers of the law18.

In case of declaratory theory which states Judges are no more than the discoverers of law. They discover the law on a particular point and declare it. This view has been supported by many writers, jurists and Judges. Similarly this applies to original precedents according to Salmon which has an effect of the law for future. This declaratory theory has been criticised by Bentham as “a wilful falsehood having for its object the stealing of legislative power by and for hands which could not or durst not, openly claim it”.19

Landmark judgments of judicial legislation

Jurisprudence of State liability established20

Rudul Sah was arrested on charges of murdering his wife in 1953, later he was acquitted by an Additional Sessions Judge, in 1968, who directed his release from jail, pending further orders. But he was not released from jail even after 14 years of his acquittal order until his plight was highlighted in the media in 1982. This led to the filing of the public interest litigation (PIL) on his behalf21.

This is a landmark judgment in the jurisprudence of State liability22. It is considered particularly important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights under the Constitution. This decision overruled Kasturi Lal Ralia Ram Jain v. State of U.P.23 which held the State is immune and cannot be held liable for its tortious acts. Though there is no express provision for awarding compensation in the Indian Constitution, this judgment was based on the Court’s interpretation of the extent of its remedial powers. The Court held that “The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield”24.

The grant of such monetary compensation was in addition, and not to the exclusion, to the right of the aggrieved person to bring an action for damages in civil law or in tort.

Inter-country adoption guidelines25

Lakshmi Kant Pandey, an advocate, wrote to the Supreme Court alleging neglect and malpractice on the part of social organisations and private adoption agencies facilitating the adoption of Indian children to foreign parents. His letter was based upon the empirical investigation carried out by a foreign magazine, The Mail. Since there is no statutory enactment in India relating to the adoption of Indian children by foreign parents, the Court had to look into Section 8 of the Guardians and Wards Act, 189026. This laid down the normative and procedural safeguards to be followed in cases of adoption of children. The judgment27 stressed on policy towards securing children of tender age from abuse and precautions which can prevent them from being forced to enter into vocations unsuitable for their ages and strength.

The judgment was penned by Bhagwati, J. in order to protect the child against exploitation, human trafficking, certain safeguards and procedures have been mentioned. He opined that a congenial environment for the children could be given only by biological parents, but in case if a child is abandoned efforts should be made to trace biological parents. The next step would be looking for adoptive parents within the native country of the child. If adoptive parents within the native country of the child cannot be found within a maximum period of 2 months, then looking for adoptive parents outside the country is the best alternative. However, several other safeguards are also mentioned which have to be taken care of by the social and child welfare agency recognised by the Government before adopting a child to foreign parents. The Court also revisited Rasiklal Chhaganlal Metha, In re28 where a copy of the home study report was mandated to be issued to the Indian Council of Child Welfare or Indian Council of Social Welfare for careful examination of foreigner’s social and financial status.

River Ganga water pollution guidelines29

Advocate M.C. Mehta filed a writ petition in the nature of mandamus to prevent the leather tanneries from disposing of domestic and industrial waste and effluents in River Ganga. The Supreme Court agreed with the prayer that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness and issued guidelines for prevention of Ganga water pollution.

The Bhopal tragedy30

After the Bhopal tragedy in 1984, the legal framework was inadequate to conduct a fair trial of Union Carbide. To overcome this challenge the Union of India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 198531 making the Union of India representative of the victims by the virtue of the doctrine of parens patriae. This was then challenged in the Supreme Court.

The Court ordered Union Carbide to pay  US $470 million against all the destruction that the leak of methyl isocyanate (MIC) gas from the industrial premise.  Pathak, J. in his reasoned order said that it was the duty of the court to secure immediate relief to the victims, he applied the polluters pay principle and decided the quantum of compensation to be US $470 million.

Placing limitations on President’s rule32

S.R. Bommai was the Karnataka Chief Minister of the Janata Dal Government, which was dismissed when the President’s rule (Article 35633) was imposed in Karnataka. When the Karnataka High Court dismissed his writ petition on the same, he then moved to the Supreme Court which discussed the grounds and the extent of the imposition of the President’s rule in a State. The Supreme Court in its judgments restricted the scope of Article 356 and laid several conditions which needed to be fulfilled such as President should use Article 356 only after his proclamation has been approved by both Houses of the Parliament. In case the proclamation disapproval of both the Houses, the dismissed Government is revived at the lapses of a period of two months. Such proclamation of the imposition of President rule is subject to judicial review.

The much needed sexual harassment at work place guidelines34

A PIL was filed by a women’s rights group known as “Vishaka”, the petition has been brought as a class action by certain social activists and NGOs in reaction to an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. The Court recognising the International Conventions and norms such as the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)35, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace is against their dignity and violative of Articles 14, 15(1)36, 19(1)(g)37 and 21 of the Constitution of India. The Court opined that Sections 35437 and 354-A 38IPC, 1860 were to be referred in any case of sexual harassment but these provisions were not specific to the issue at hand. This resulted in the Supreme Court’s elaborate guidelines to keep a check on sexual harassment at workplaces. The Court stated that the guidelines are to be treated as a declaration of law in accordance with Article 141 of the Constitution until Parliament legislates on the subject.

These guidelines served their purpose for 15 long years until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 201339.

Guidelines to be followed to arrest a person40

D.K. Basu, Executive Chairman of Legal Aid Services of West Bengal, a non-political organisation addressed a letter to the Supreme Court about a news item published in The Telegraph newspaper about deaths in police custody. His letter was treated as PIL by the Supreme Court. The Court considered various international conventions such as the Universal Declaration of Human Rights,1984, the International Covenant on Civil and Political Rights, 1966; statutes such as the New Zealand Bill of Rights Act and judgments such as Miranda v. State of Arizona41.

The Court issued a list of 11 guidelines regarding the arrest of a person which were to be followed by the police before proceeding to an arrest. The Court also referred to its earlier decision in Neelabati Behera v. State of Orissa42 in which it had held that prisoners and detainees shall not be deprived of their right to liberty and only the restriction permitted by law could be imposed on the enjoyment of the fundamental rights of prisoners and detained. This case introduced “custody jurisprudence” in India. The Court also held that failure to comply with these guidelines invites not only department actions but also contempt of court proceedings against the officers.

Jain Dairy — Guidelines to free the “caged parrot43

In 1991 Ashfak Hussain, an alleged official of a terrorist organisation named Hizbul Mujahideen was arrested and interrogated regarding their funding source. He revealed the details of Surrender Kumar Jain and his brother’s involvement, subsequently when the Central Bureau of Investigation (CBI) raided their house and seized Indian and foreign currency along with two diaries. But due to political interference and pressure, the probe was left uninvestigated. In 1993 a PIL was filed by Vineet Narain demanding an honest probe in the hawala case, which had dangerous consequences for the nation’s security and finances.

The Supreme Court derisively referred to CBI as a “caged parrot”44 and directed that the Central Vigilance Commission (CVC) should be given a supervisory role over CBI. The Court using the power under Articles 32 and 142 of the Constitution of India45 issued certain guidelines to CBI and Enforcement Directorate and invented the procedure of “continuing mandamus” to bring the investigations on their proper track and to proceed expeditiously, so as to bring the guilty to book. Further, directives were issued for the establishment of nodal agency and prosecution agency for coordinated action in cases having politico-bureaucrat criminal nexus46.

A check on these government agencies was being placed by the Supreme Court to ensure that the agencies fulfil their part of legal obligation and work towards the erosion of corruption and upheld the law of the land.

The collegium system: The Second Judges case47 and the Third Judges case48

In the Second Judges case49 (1993) the Supreme Court introduced the collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the Chief Justice of India’s (CJI) individual opinion, but an institutional opinion formed in consultation with the two seniormost Judges in the Supreme Court. In the Third Judges case50 (1998), the Supreme Court on President’s reference expanded the collegium to a five-member body, comprising the CJI and four of his seniormost colleagues.

Through these cases, the collegium system of appointment of Judges was introduced by the Supreme Court which was not based on any provision in the Constitution. While Article 12451 prescribes the procedure for appointment of the Supreme Court Judges, it does not prescribe a collegium system. Yet, it is the collegium which decides the appointment of Judges. This is also a classic example of Judge-made law.

Anti-ragging guidelines52

The Supreme Court, while exercising its jurisdiction under Articles 32 and 142 of the Constitution of India, has laid down broad guidelines for colleges and educational institutes to prevent ragging. The guideline includes initiating anti-ragging movement in the colleges; undertaking from students and parents on colleges action in case of ragging incidents; redressal mechanism in case of ragging incidents; hostel accommodation of freshmen shall be carefully guarded; withdrawal of financial assistance to an institute if ragging is reported; reformative approach by police in cases dealing with ragging culprits, etc.

Preventing smoking at public places53

Since the objects of both the Acts54 dealing with the tobacco products and advertisements discussed the health effects of smoking in public places but failed to place a ban. In an attempt to protect the health of non-smokers, the Supreme Court prohibited smoking at public places and held that it is an indirect violation of the right to life of non-smokers as passive smokers who were helpless victims of air pollution caused by smoking.

Police reforms55

In 1996, retired Indian Police Service (IPS) Officer Mr Prakash Singh filed a public interest writ petition before the Supreme Court intending to free the police from the control of power wielders, primarily in relation to transfers and postings. Seven directives were issued by the Supreme Court in this regard, namely, setting up of State Security Commission (SSC); fixing the tenure and selection of the Director General of Police (DGP); a minimum tenure for the Inspector General of Police; separation of investigation and law and order functions; setting up of Police Establishment Boards; creating a Police Complaints Authority and forming a National Security Commission56. These directives pulled together the various strands of improvement generated since 1979. The Court ordered immediate implementation of the guidelines either through executive orders or new police legislation.

The Supreme Court directives to the Union and State Governments to carry out structural changes in the Police Department to insulate it from extraneous pressures and make it accountable to the people is a landmark judgment in the history of police reforms57.

Public distribution schemes matter58

A PIL was filed by the People’s Union for Civil Liberties contending that food grains which are overflowing in storage, especially of Food Corporation of India (FCI) godowns and which are abundant, should not be wasted and distributed to the below poverty line (BPL) groups. The Supreme Court had asked the Government to distribute food grains rotting in government godowns for free to the poor and hungry. Besides this, the Court

“suggested that the Government should increase the quantity of food supply to the people living below poverty line (BPL);

(ii) the Government should open the fair price shops for all the 30 days in a month;

(iii) the Government should construct at least one large Food Corporation of India godown in every State and also consider the possibility of constructing a godown in every division of every State if it was not possible to do so in every district.”59

Live-in relationships — Palimony eligibility60

The Supreme Court was hearing a dispute over maintenance between one D. Velusamy and D. Patchaiammal. The Court was dealing with the rights of an unmarried partner under the Protection of Women from Domestic Violence Act, 200561.  It held that not all live-in relationships entitle a woman to palimony and the Court laid certain criteria in order to be eligible for “palimony”.

A relationship must comply with certain conditions such as the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and, they must have voluntarily cohabited for a significant period and held themselves out to the world as being akin to spouses for a significant period of time62. The Court even went a step ahead and said that “merely spending weekends together or a one-night stand would not make it a domestic relationship”.63

Since Parliament has used the expression “relationship in the nature of marriage” and not “live-in relationship”,  the Court in the garb of interpretation laid conditions which are needed to be satisfied to get the benefit of the Act of 2005.

Legalising passive euthanasia64

Aruna Ramachandra Shanbaug worked as a nurse in Mumbai. A sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and tried to rape her, to prevent her from moving he twisted the chain around her neck. The next day, she was found lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence, the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the Constitution alleging that there is no possibility for her to revive again and get better. So she should be allowed to go with passive euthanasia and should be absolved from her pain and agony. In Aruna Shanbaug case65, the Supreme Court laid down guidelines for passive euthanasia, which provided for the withdrawal of life support system which leads to death.

Whenever any application is filed in High Court for passive euthanasia, the Chief Justice of the High Court shall constitute a Bench of at least 2 Judges in deciding such an issue. The opinion of a committee of 3 reputed doctors shall be taken by the Bench. The doctors in the Committee are to be nominated by the Bench after discussing with the appropriate medical practitioners. It is the duty of the Court to issue a notice to the State, relatives, kins and friends and also provide them with a copy of the report made by a committee of doctors. After all these procedures the Court should deliver the judgment. These guidelines shall be followed until the legislature takes up the matter66.

Even though the Supreme Court held right to die is a part of Article 2167 it later overruled it in Gian Kaur v. State of Punjab68. In the year 2018, the Supreme Court passed another order in Common Cause, A Registered Society v. Union of India69, in which the right to die with dignity was again recognised and passive euthanasia was legalised and a permit was given to withdraw the life support system of those who are terminally ill and are in lifelong coma.

Criminals out of polls70

In 2005, Lily Thomas filed a writ petition in the Supreme Court to challenge Section 8(4) of the Representation of the People Act71 which protects the convicted politicians against disqualification from contesting the elections on the ground of pending appeals against their conviction in the appellate courts72. Although initially the petition was rejected after nine years, after constant attempts, the Supreme Court Bench comprising  A.K. Patnaik and S.J. Mukhopadhaya, JJ. passed a verdict in 2013.

The 2-Judge Bench stepped into the boots of lawmaking and held that members of Parliament, Legislative Councils and Legislative Assemblies convicted of crimes where they had been awarded a minimum sentence of 2 years’ imprisonment would cease to be members of the house to which they were elected from the date of sentencing. It further struck down the provision, which allowed convicted members a 3 months’ time period for appeal against the conviction and sentencing and held that those convicted would suffer immediate disqualification. It held Section 8(4) is indeed ultra vires to the constitutional provisions.

Later in 2020, the Supreme Court in Rambabu Singh Thakur v. Sunil Arora73 passed another judgment74 whereby all candidates both at the State and Central level would have to publish their criminal records if they want to stand in elections. An earnest attempt was made by the Supreme Court to cleanse politics through its extraordinary powers.

Waiving the statutory period of divorce75

This landmark judgment was delivered by the Supreme Court wherein it was held that where the circumstances are such that continuing the ties of the marriage by applying Section 13-B of the Hindu Marriage Act, 195576, would only continue the agony of the parties, then the marriage must be dissolved and divorce must be granted to the parties. The Supreme Court by invoking their special powers under Article 142 of the Constitution, waived the statutory period of six months’ wait and granted a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. Later in 2017 in Amardeep Singh v. Harveen Kaur,77 it has been held by the Supreme Court that the period of 6 months, as mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation78.

Following Vishaka Guidelines79

After a long-running attempt in courts to tackle the problem of sexual harassment of women at work in India through Vishaka v. State of Rajasthan80, this case arose when the Vishaka guidelines were not implemented properly in many States of India. The Court stated that the guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It further issued various directives to which had to be followed by the State functionaries and private and public sector undertakings/organisations/bodies/institutions, etc. to ensure full implementation of Vishaka guidelines.

Misuse of red beacons on vehicles81

In this case, the Supreme Court gave directions to the Union Government to prevent the misuse of red beacons. The Supreme Court directed that the vehicles ferrying “high dignitaries” specified by the Central and State Governments may be fitted with red beacons but these can be used with or without flasher only when the dignitary is on duty. It had also directed the States to amend the Motor Vehicle Rules to restrict the use of the red beacon and impose an exemplary fine in case of misuse. It further held that “the use of red lights on the vehicles of public representatives and civil servants has perhaps no parallel in the world democracies.”

The NOTA case82

The People’s Union for Civil Liberties an NGO, filed a public interest litigation under Article 32 of the Constitution to challenge the constitutional validity of Rules 41(2) and (3) and 49-O of the Conduct of Elections Rules, 1961,  challenging the provision in which one wishing not to vote for any candidate had to inform the Presiding Officer. On 27-9-2013, this was held ultra vires by the Supreme Court under Article 19 of the Constitution (protection of certain rights regarding freedom of expression) and Section 12883 (maintenance of secrecy of voting) of the Representation of the People Act, 195184. The Court also directed the Election Commission to make the necessary provisions in ballot papers and electronic voting machines (EVMs) to provide a “‘None of the Above” option for voters, this was to enable voters to exercise their right not to choose a candidate while maintaining their right to secrecy.

Legal declaration on transgender community’s identity and rights

The Court declared85 that the Union and State Governments must grant recognition to the third gender in the eye of the law. Further, they should get to enjoy healthcare, education, etc. and all government documents such as ration cards, passports, etc. should recognise the third gender. It also directed the Election Commission of India to take special measures to enroll.

Directions on acid sales86

Directions were issued to curb acid sales. The Court said that acid should be sold only to people who show a valid identity card. Buyers will also have to explain why they need the chemical and sales will have to be reported to the police. The Court directed the Chief Secretaries of all States and the administrator of the Union Territories to comply with the direction given in the order and frame rules in tune with the model rules framed by the Centre to regulate the sale of acid at the earliest and possible.

Shutting liquor vends near highways87

The Supreme Court considering the increase in the number of road accidents due to driving under the influence of alcohol and negative effects of the same both to the individuals and to the society and recognising that no method of restitution through monetary instruments can undo loss and the pain of suffering, issued the directions to shut down all liquor vends like bars, restaurants, shops, etc. which are situated within 500 meters of the outer edge of national/State highways and the ban extended to highways passing through city/town. Along with it, the States were barred from granting fresh licences under Article 142 of the Constitution. The Court justified its ruling by considering various issues of drunk driving and its social, economic and legal consequences.

Guidelines on honour killings88

The Supreme Court observing the petition and data collected by an NGO in its survey against the honour killings in Haryana, Punjab and Western Uttar Pradesh has issued guidelines to check unlawful interference in the lives of interfaith and inter-caste couples by khap panchayats and further directed the State Governments to constitute special cells in each district which can be approached by the couples for their safety and well-being.

Green crackers case89

The Supreme Court applied the precautionary principle and said scientific uncertainty should not be a reason for preventing action that may cause environmental harm. Guidelines were issued on bursting of crackers during Diwali. Concept of “green crackers” was introduced.

Witness Protection Scheme90

In this case, the Supreme Court observed that there is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede and no such legislation has been brought about. Hence, the Supreme Court approved the Witness Protection Scheme, 201891 (as prepared by Union of India) and directed it to come “into effect forthwith” and that “it shall be the ‘law’ under Articles 141/142 of the Constitution, till the enactment of suitable parliamentary and/or State Legislations on the subject92.

Installation of CCTVs in the police stations93

The Supreme Court directed States and Union Territories Governments to look into the compliance on the directions issued in Shafhi Mohammad v. State of H.P.94 which directed installation of the cameras with audio devices at the police stations in their State. Further the Court held that CCTV footage shall be preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

Limit on arbitral bail conditions95

Looking at the bizarre bail conditions the Supreme Court issued a set of guidelines in order to regulate bail conditions to be imposed in cases relating to sexual offences, while setting aside a “rakhi for bail”96 condition imposed by the Madhya Pradesh High Court in a sexual harassment case97.

Judicial legislation in Covid-19

In connection with the impact of Covid-19, the Supreme Court has received a large number of petitions from individuals and organisations. Some prayers were frivolous, while others required high levels of medical or other expertise. The Supreme Court has passed very bold orders, to minimise fatalities. These orders/guidelines of the Supreme Court to ensure proper management of the Covid-19 pandemic were also a form of judicial legislation. As various petitions were filed which were either legislative or executive’s subjects, but the Supreme Court had to ultimately deal with it. In such petitions various guidelines on aspects like fixing prices of testing and kits98, guidelines for equitable distribution of essential supplies and services99, checking hoarding and illicit trade, safety and well-being of children protection homes100, healthcare professionals101, directives to the States/UTs to release prisoners on parole to decongest prisons102; guidelines to be followed for Puri Jagganath Rath Yatra103 and many more.

Judicial legislation v. Separation of power conundrum

Indian Constitution does not strictly accept the concept of separation of power, as laid down in Ram Sahib Ram Jawaya Kapur v. State of Punjab104. It has not indeed recognised the doctrine of separation of powers in its absolute rigidity105but the functions of the different parts or branches of the Government have been sufficiently differentiated.106Hence, the judiciary to indulge in lawmaking is to overstep its limitations.107 Moreover, allowing an unelected body like the judiciary to share the burden of lawmaking is always criticised as it is extraneous to that of the people’s will108.

Judicial legislation for the first time was checked by a 7-Judge Bench decision in P. Ramachandra Rao v. State of Karnataka109, wherein the Court held that giving directions of a legislative nature is not a legitimate judicial function. The Court was considering the question of whether the bar of limitation for criminal trials set by smaller Benches of the Supreme Court in “Common Cause”, A Registered Society v. Union of India110Raj Deo Sharma (1) v. State of Bihar111 and Raj Deo Sharma (2) v. State of Bihar112 were valid. The Supreme Court held that the directions given in the aforesaid decisions were invalid as they amounted to directions of legislative nature which only the legislature could give113.

Even in Bachan Singh v. State of Punjab114  a five-Judge Bench headed by  Y.V. Chandrachud, C.J. held that “We must leave unto the legislature, the things that are the legislature’s. ‘The highest judicial duty is to recognise the limits on judicial power and to permit the democratic process to deal with matters falling outside of those limits.’” Even with regard to Vishaka Guidelines115, the Court expressed its concern much later116 on being an interim Parliament.

But, in many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have a little judicial function in them. Its justification is that the other branches of Government have failed or are indifferent to the solution of the problem. Sometimes failing to circumspect and understand the thin line between law and governance.117

Hence, allegations are made now and then on the judiciary in general and the Supreme Court in particular that it has entered into the domain of the legislature and “taken over” the administration of the country. But analysing various judgments of the Supreme Court, underlying reasons for expanding judicial review and its legitimacy can be understood.

The Judge-made law can be validated when there is serious lacuna or vacuum which has to be filled and left unattended by the legislature, as even “Judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice”118. Moreover, it is  a constitutional obligation of the court to ensure justice is delivered. It is only the tradition that Judges “find” and do not “make” law119. But through interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be120.

In the same way,judicial creativity can also be justified if there is a peculiar issue at hand which has a dead end. For instance, in C. Golak Nath v. State of Punjab121, the Supreme Court has invented the doctrine of “prospective overruling” as it would have upset everything done so far in the agrarian field122. Even the basic structure123, doctrine of harmonious construction124, pith and substance125 etc., can also be categorised into this.

Laws enacted need to fulfil the needs of the people, with changing time, expanding the scope of existing provisions in the Constitution is also legitimate. For instance, in Maneka Gandhi v. Union of India126 and K.S. Puttaswamy v. Union of India127scope of Article 21 is expanded manifolds and new dimensions were mandated by the Court. Hence, by interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be128. Adding/subtracting legislation in the name of interpretation can be categorised as illegal129. Even an order “to do complete justice” under Article 142 cannot be “inconsistent with the substantive provisions of the relevant statutory laws.”130

Whether Judges find law or make the law

After analysing the above landmark judgments it can be inferred that Judges make law when there is a legal vacuum or no express principles of law. But when existing laws fail to provide all the resources to deliver justice or “complete justice”, Judges do tend to find the law within the framework of legislation through its interpretative techniques or judicial creativity and “the Judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society”131.

Impact of Judge-made law

While Judge-made law pushes the legislature to introspect on its failures, it also creates credibility and a certain sense of reliability amongst the people. On the other hand it creates a sense of uncertainty and unwanted strife between the organs of the State, Judge-made laws are against the natural justice principles which demands that the law should be known before it is enforced, decisions of Judges are not intelligible to common man and sometimes are in accordance to their subjective notions.

Dichotomy of opinion: Conservative versus Activist Judges

The activist approach to the Judicial legislation suggests that interpretation of the constitutional and statutory provisions in such a way to meet the then contemporary needs or to lay down a new law, be it procedure or substantive, through in the form of guidelines or orders. In contrast, in the conservative/traditional approach to the judicial legislation suggests, the judiciary not willing or stepping into the legislative domain to interpret the constitutional provisions and statutes irrespective of needs in the system. The process of making law by Judges is also one of the many forms of judicial activism, and traditional approach to this can be put it loosely as judicial passivism.

For example, by analysing these two judgments, contrast of opinion can be understood: In Madhuri Patil v. Commr., Tribal Development132 K. Ramaswamy, J.  issues 15 guidelines to prevent fraudulent and fabricated certificates being made by the forward communities to reap the benefits which were allocated to the reserved communities. Later in Dayaram v. Sudhir Batham133 doubted the correctness of the said judgment but  R. Raveendran, J. speaking for the Bench came to a conclusion holding that they were not taking over the functions of the legislature but merely filling up the vacuum till legislature chose to make an appropriate law.

In contrast, in Rajesh Sharma v. State of U.P.134, a two-Judge Bench of the Supreme Court held that Section 498-A IPC135 was being misused by vindictive wives and 8 directives were issued. The very first directive was that in every district in India a Family Welfare Committee should be set up by the District Legal Services Authority, and all complaints under Section 498-A should be referred to it, and no arrest should be made before receiving its report. Since there is no such law for setting up family welfare committees, the 3-Judge Bench of Supreme Court in Social Action Forum for Manav Adhikar v. Union of India136, set aside the abovementioned directive of the two-Judge Bench.

The reason held is that the Court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary, and the matters of policy should be left for the elected representatives of people to decide and no direction can be issued by the Court.

 Reasoning from Activist Judges on judicial legislation

Judges Views on judicial legislation

V.R. Krishna Iyer137

“The Judge is not a mimic. The greatness of the Bench lies in creativity….To meet the needs of the society, the Judges do make law and it is now recognised everywhere that Judges take part in this law-making function and, therefore, Judges make law.”

P.N. Bhagwati138

“There is no need for Judges to feel shy or apologetic about the law creating roles….Lawmaking is an inherent and inevitable part of the judicial process….There is bound to be a gap between the generalities of law and the specifics of life…thus making and moulding the law he takes part in the work of creation.”

K. Ramaswamy139

“The role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.”
Justice Kurian Joseph140


“I would like to sum up stating that judicial legislation is not necessarily an innovative role of an activist Judge, it is the solemn duty or role or function of Judge who has taken oath under the Constitution of India to uphold it…. He shall not non-suit a person crying for justice taking a technical approach that there is no enacted law to be applied in the given circumstances.”

Reasoning from traditional Judges on judicial legislation

Judges Views on judicial legislation
Justice Pathak141 “the Court must never forget that its jurisdiction extends no farther than the legitimate limits of its constitutional powers and avoid trespassing into political territory … excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions”.
Justice Y.V.Chandrachud142 “The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits.”
Justice MarkandeyKatju143 “Judges ought to know their limits and must not try to run the Government; they must have modesty and humility, and not behave like emperors.”


Justice S.B. Sinha144




“The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.”

By comparing traditional and activist Judges, we can come to a conclusion that even in traditional Judges there is acceptance to judicial legislation to some extent, and which some Judges term it as legitimate judicial legislation145. Nonetheless, when it comes to the vacuum which needs to be filled, Judges did not hesitate in using their legislative powers.  At the same time when there is a blank wall, courts were not reluctant to lay new doctrines/guidelines to cross the obstacles. The fundamental difference is that there is a tendency amongst activist Judges to pass orders which tend to cobble with policy decisions and lay guidelines which are sometimes against the statute laid. While traditional Judges refrain to comment on policy decisions and passing orders when there is a statute even sometimes ineffective to meet the needs.

Executive and legislature criticism on judicial legislation

For instance, if we look at the Supreme Court’s order in People’s Union for Civil Liberties v. Union of India146 against corruption in the Food Corporation of India, the Union Agriculture Minister, Sharad Pawar reacted147 by sayings that it was not possible to implement the “suggestion” made. The Supreme Court made it very clear that it did not make a “suggestion to the Government; it was an “order”148. The then Prime Minister Manmohan Singh said that the Supreme Court should refrain from interfering in policy issues149.

Similar criticism can be observed when the Supreme Court has directed the interlinking rivers in India150. In 1993, the Court’s order to conduct military operations in Hazratbal, Kashmir received a lot of criticism. Commenting on this, an Army General wrote: “for the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation”. On the same lines, the Supreme Court’s order to Jharkand Assembly to conduct a motion of confidence and not to entertain any other business was criticised by the legislators as against the Article 212 of the Constitution151 which states that courts are not to inquire into any proceedings of the legislature152.

Even former Union Finance Minister, Mr Arun Jaitley vehemently criticised on this issue. In his words:

I have often heard (the) argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It is a flawed argument. It is flawed because if any organ of the State is not doing its duty, it can be directed to do its duty. Usurpation of power… by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears are pending, Judges are not doing the job. So must somebody step in and now exercise that power? The answer is no… And therefore, it is extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.153

Beneficiaries’ response on judicial legislation

Whether a law is passed through legislative route or from a judicial court, ultimately it is the people’s welfare which is relevant and should be predominant and not Montesquieu’s 18th century treatise on separation of powers154. Judge-made law has touched the lives of millions, it is because of this belief that people even today run to the courts when there is a mess. In many instances because of this trust, the Supreme Court was the first to be approached; this in many ways burdened the court and even led it to adventure in unwarranted domains. Time and again the Supreme Court saved the supreme aspirations of this nation’s founding fathers and mothers. Perhaps it is the Supreme Court which has transfused the vision of our Constituent Assembly.


“It is indeed possible to characterise with precision that (any particular) agency of the State is executive, legislative or judicial, but it cannot be predicted that a particular function exercised by any individual agency is necessarily of the character which the agency bears”155. Hence, every agency is under the Constitution, even Judges are under the Constitution, but Constitution is what Judges say156.

“Like it or not, the balance of constitutional power will remain in favour of the courts, but only so long as our Judges are perceived to be persons of exceptional competence and of high moral integrity. If that perception changes (God forbid), the constitutional system as it now operates will breakdown”157.

It is, therefore, necessary for academicians, lawyers and Judges to re-examine the roles postulated by the Constitution for the three wings of the State. If the Judges legitimately legislate and the Constitution recognises judicial legislation, then the limits to judicial legislation shall also be explored and reasoned out. Even if it is welcomed should it be permanent or interstitial should also be considered. Alike judicial review, Judge-made law shall also have to satisfy legitimacy. Ultimately Judges are not legislators, but finishers, refiners and polishers of legislation158.

*Professor at University College of Law, Osmania University, Hyderabad.

**Final year student at University College of Law, Osmania University, Hyderabad. Author can be reached at

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Appointments & TransfersNews

President appoints 4 new Judges at Delhi High Court:

  • Neena Bansal Krishna
  • Dinesh Kumar Sharma
  • Anoop Kumar Mendiratta
  • Sudhir Kumar Jain

Ministry of Law ad Justice

[Notification dt. 25-2-2022]

Appointments & TransfersNews

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

1. Ms. Nidumolu Mala,

2. Shri Sunder Mohan,

3. Shri Kabali Kumaresh Babu,

4. Shri S. Sounthar,

5. Shri Abdul Ghani Abdul Hameed, and

6. Shri R. John Sathyan.

Supreme Court of India

[Collegium Statement dt. 16-2-2022]

Appointments & TransfersNews

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

1. Shri Kishore Chandrakant Sant,

2. Shri Valmiki Menezes SA,

3. Shri Kamal Rashmi Khata,

4. Smt. Sharmila Uttamrao Deshmukh,

5. Shri Arun Ramnath Pednekar,

6. Shri Sandeep Vishnupant Marne,

7. Smt. Gauri Vinod Godse,

8. Shri Rajesh Shantaram Patil,

9. Shri Arif Saleh Doctor, and

10. Shri Somasekhar Sundaresan.

[Supreme Court of India]

[Collegium Statement dt. 16-2-2022]

Appointments & TransfersNews

President appoints S/Shri (1) V. Narasingh, (2) Biraja Prasanna Satapathy and (3) Murahari Sri Raman, to be Judges of the Orissa High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Notification dt. 10-2-2022]