Judges

Know thy Judge

 “I feel after 22 years as a Judge, we need to think about writing judgments. The consumer of justice must know what is the end result. That is more interesting. Reasoning and conclusion must be clear.”[1]

 Justice N.V. Ramana, The Chief Justice of India, at the Launch of SCC Pre-69 Volumes

The Chief Justice – Mukhya Nyayadhish – The Title is heavy, the Mantle heavier; but it is the Expectations that are the heaviest. The Nation hopes and expects a lot from the one who heads the Supreme Court of India for it is he (or one day a She) who leads the Indian Judiciary collectively.

The Supreme Court of India has borne witness to the leadership of 47 Chief Justices, all who had to face unique scenarios during their tenures. The outgoing Chief Justice, N.V. Ramana, had his fair share of challenging circumstances.

As the Supreme Court of India bids adieu to the 48th Master of Roster, it becomes essential to take a step back and look through Justice N.V. Ramana’s career, perspectives and legacy. It is time to take a moment and Know Thy Chief Justice!

Early Life and Career

♦Did You Know? Justice Ramana worked as a journalist from 1979-1980 and reported on political and legal matters for the Telegu daily newspaper Eenadu.[2]

Justice Nuthulapati Venkata Ramana was born in an agrarian family on August 27, 1957 in Ponnavaram Village, Krishna District, to Ganapati Rao and Sarojini Devi[3]. Having attained his degree in Science and Law from Acharya Nagarjuna University, Andhra Pradesh. While in college, Justice Ramana was a student activist and fought extensively for civil liberties during the Emergency and lost an academic year. He also participated in the Jai Andhra Movement for a separate Andhra state in the 1970s because of alleged injustices meted out to the people of the Coastal and Rayalaseema regions[4]. By his own admission, Justice Ramana once stated that he wanted pursue an active political career, however, “Destiny had other plans”[5]. 

Advocacy [1983- 2000][6]

♦Did You Know? Justice Ramana is a first-generation lawyer having an agricultural background.[7]

Justice Ramana enrolled as an Advocate on 10-02-1983 and started his practice from the Magistrate’s Court at Vijayawada[8]. He later started practicing at the High Court of Andhra Pradesh, Central and Andhra Pradesh Administrative Tribunals and the Supreme Court; dealing in Civil, Criminal, Constitutional, Labour, Service and Election matters. Justice Ramana also specialized in Constitutional, Criminal, Service and Inter-State River laws.

He functioned as Panel Counsel for various Government Organizations and was the Additional Standing Counsel for Central Government and Standing Counsel for Railways in the Central Administrative Tribunal at Hyderabad. Justice Ramana also served as the Additional Advocate General of Andhra Pradesh.

Some of the prominent cases where Justice Ramana appeared as a Counsel are listed below:

Judgeship- The High Courts [2000-2014][9]

Justice Ramana’s tryst with Judgeship began in the year 2000 when he was appointed as a permanent Judge of the Andhra Pradesh High Court on 27-06-2000. He served as Acting Chief Justice of Andhra Pradesh High Court from 10-03-2013 to 20-05-2013.

He had participated in several National and International Conferences held in India and abroad and submitted papers on various topics of legal importance. Justice Ramana was then elevated as the Chief Justice of Delhi High Court w.e.f. 02-09-2013.

Some of the prominent cases during Justice Ramana’s tenure in the High Courts are as follows-

DDA v. All India Naval Draughtsman, 2013 SCC OnLine Del 2093

DDA floated a scheme for 7000 expendable houses vide a resolution dated 27-08-1996, whereby 50% of the flats were proposed to be offered to the general public while 50% were proposed to be offered to PSUs/Govt. Organisations; discount was announced for those individuals who would make payment on a cash down basis and the said discount will not be provided to the PSUs/Govt. Organisations. The Bench of N.V. Ramana, C.J., and Jayant Nath, J., held DDA is not entitled to recover any additional sums from the allottees. The Demand cum Allotment Letter clearly stipulated that the terms and condition in the brochures for the scheme would apply to the respondent/allottees and the brochures nowhere stipulated that the discount is confined only to allottees other than PSUs/ Government Organisations but infact clearly provided for discount to an allottee who made 100% payment before possession.

_____________________________________________________________________________________________________________

Shahid Balwa v. Directorate of Enforcement, 2013 SCC OnLine Del 2208

The Bench of N.V. Ramana, C.J., and Jayant Nath, J., observed that cross-examination of witnesses is an integral part and parcel of the principles of natural justice. Refusal would normally be an exception. It was further observed that if the credibility of a person who has testified, is in doubt or if the version or the statement of the person who has testified is in dispute, then normally right to cross-examination would be inevitable; if some real prejudice is caused to the complainant, the right to cross-examine witnesses may be denied.

_____________________________________________________________________________________________________________

Manohar Lal Sharma v. Union of India, 2014 SCC OnLine Del 570

The Bench of N.V. Ramana, C.J. and Manmohan, J., observed that Representation of the People (Amendment and Validation) Act, 2013 was within the legislative competence of the Parliament and in fact, by the impugned Amendment and Validation Act, 2013, the Parliament has by explicit words overruled the intent which had been read by implication by the Courts into Section 62(5) and consequently, changed the basis of “Court’s decision” and is, thus, valid.

_____________________________________________________________________________________________________________

B. Archana Reddy v. State of A.P., 2005 SCC OnLine AP 892

The 5 Judge Bench of Bilal Nazki, A.C.J. and Goda Raghuram, V.V.S. Rao, N.V. Ramana and R. Subhash Reddy, JJ., observed that reservations under Arts. 15(4) and 16(4) of the Constitution result in reduction in the number of seats available, in academic courses and posts in public services, on the basis of merit. There is every need, therefore, to ensure that only “the backward classes” and none else are extended the benefits of such reservation.

_____________________________________________________________________________________________________________

P. Srinivasa Rao v. P. Indira, 2001 SCC OnLine AP 1034

The 3- Judge Bench of S.B. Sinha, C.J. and Ramesh Madhav Bapat and N.V. Ramana, JJ., observed that the Civil Court can exercise such inherent powers with the only limitation that it should not be inconsistent with other provisions of the CPC or contrary to any other law. It was held that granting interim maintenance in a suit for maintenance is not inconsistent with any provision of the CPC or contrary to any other law.

The Supreme Court of India [2014-2022]

Justice Ramana was elevated as a Judge of the Supreme Court of India w.e.f. 17-02-2014[10]. He served as a Judge for 7 years. Eventually his name for the position of Chief Justice of India was recommended by the then outgoing CJI, Justice Sharad Arvind Bobde. On 24-04-2021, Justice Ramana took oath as the 48th Chief Justice of India.

♦Did You Know? Justice Ramana was the third Judge to recuse himself from hearing the plea challenging the appointment of M Nageswara Rao as the interim CBI Director. He sought transparency in the process of short-listing, selection and appointment of the CBI director.

Notable Judgments

Judgments rendered by any court of law have the capacity to pave the path for change. Whether such changes are for the better or worse, that however is for the time to tell.

Justice Ramana has time and again stressed upon the need for writing simple clear judgments which can be understood by all and sundry. Very recently, while speaking at the Launch of SCC Pre-69 Volumes by EBC, Justice Ramana urged the judges to try being less complex while writing down their judgments, so that the consumer of justice may know what is the end result.[11]

Being a Judge of the Supreme Court already is a tricky path to traverse considering the balance of various interests. It is even trickier when one is a Chief Justice of the topmost Court of the land. Within the legal fraternity, “Justice Ramana is seen as a conventional judge, who is restrained in his speech. He is known to talk less and for clarity of thought in his orders and judgments and adhering to the principle of judicial discipline and the rule of precedent.”[12] .

The following are some of the significant decisions rendered by Justice N.V. Ramana- as a Supreme Court Judge and as Chief Justice that will help you to map the course of Justice Ramana’s tenure in the Supreme Court-

IBC and Customs Act

In Sundaresh Bhatt v. Central Board of Indirect Taxes and Customs, [C.A. No. 7667/2021], the Bench of N.V. Ramana, CJ*., and Hima Kohli and C.T. Ravikumar held that The Insolvency and Bankruptcy Code will prevail over the Customs Act. Once moratorium under IBC is declared, Customs authorities have only limited jurisdiction to assess the quantum and they cannot take steps to recover the dues.

Definition of Freebies

In Ashwini Kumar Upadhyay v. Union of India, [Writ Petitions (Civil) Nos. 43 of 2022], Bench led N.V. Ramana, CJ*., stated that Freebies by political parties before election might create a situation where the State is pushed towards bankruptcy. Noting that the issue is complex and requires extensive debate, the matter was referred to a 3-Judge Bench.

Pegasus Spyware Case

In Manohar Lal Sharma v. Union of India, [Writ Petition(s)(Criminal) No(s).314/2021], the 3- Judge Bench of the Court comprising of N.V. Ramana, CJ., and Surya Kant and Hima Kohli, JJ., deliberated over the Report submitted by the Expert Committee concerning Pegasus Spyware.  The Court listed the matter after four weeks for further hearing.

The 3-judge bench of N.V. Ramana, CJ and Surya Kant and Hima Kohli, JJ., in Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985 appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

Bilkis Bano Matter

In Subhashini Ali v. State of Gujarat, [Writ Petition (Criminal) No.319/2022], the Bench of N.V. Ramana, CJ., and Ajay Rastogi and Vikram Nath, JJ., issued notice to the Gujarat Government on the release of 11 men convicted for the gangrape of Bilkis Bano during the 2002 Gujarat riots. The Court has also directed that the 11 released men be impleaded as parties in the plea challenging the decision of the Gujarat Government.

Prime Minister’s Security Breach During Punjab Visit

The Bench of N.V. Ramana, CJ., and Surya Kant and Hima Kohli, JJ., in Lawyers Voice v. State of Punjab, [Writ Petition(s)(Civil) No(s).13/2022] deliberated upon the Report of the Enquiry Committee headed by former Judge of the Supreme Court, Justice Indu Malhotra, and considered their recommendations. The Registry was directed to send a copy of the Report to the Central Government and the State Government for further action.

PMLA Judgment Review

The Bench of NV Ramana, CJ., Dinesh Maheshwari and Justice CT Ravikumar, JJ., in Karti P Chidambaram v. The Directorate of Enforcement, [R.P.(Crl.) No.219/2022 in T.C.(Crl.) No.4/2018], while hearing the matter concerning the review of “PMLA Judgment” in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929 , the Bench decided that Two Issues in the judgment requires reconsideration.  

Interpretation of Tenth Schedule of the Constitution

The 3-judge bench of N.V. Ramana, CJ., and Krishna Murari and Hima Kohli, JJ., in Subhash Desai v. Principal Secretary, [WRIT PETITION (CIVIL) NO. 493/2022], referred the question relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof, to the 5-judge Constitution Bench.

Benami Property

In a big judgment on the Prohibition of Benami Property Transactions Act, 1988, the 3-judge bench of N.V. Ramana, CJ*., and Krishna Murari and Hima Kohli, JJ., in Union of India v. Ganpati Dealcom Pvt Ltd, [CIVIL APPEAL No. 5783 of 2022] held that Section 3  read with Section 2(a) and Section 5 of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place and were unconstitutional from their inception. The Court observed that both these provisions were still-born law and never utilized in the first place.

Hate Speeches

In Parvez Parwaz v. State of U.P., [SLP(Crl) No. 6190/2018] wherein the denial of sanction to prosecute Yogi Adityanath (Chief Minister, UP) for an alleged hate speech, was challenged; the 3- Judge Bench of N.V. Ramana, CJ., and Hima Kohli and C.T. Ravikumar*, JJ., stated that there is no necessity to go into the legal questions relating to the issue of sanction. The appeal was dismissed and the legal questions regarding the issue of sanction were left open.

Sedition Law

To remove the Sedition law or not remove it, that was the question considered in S.G. Vombatkere v. Union of India, (2022) 7 SCC 433. The 3-judge bench of N.V. Ramana, CJ*., and Surya Kant and Hima Kohli, JJ., however urged the State and Central Governments to restrain from registering any FIR; continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the sedition law is under consideration.

Chief Justice Under RTI

The 5-judge constitution Bench of Ranjan Gogoi, CJ., and N.V. Ramana, Dr. D.Y. Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ., in Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481 has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the majority opinion for the Bench and Justices N.V. Ramana and Dr. D.Y. Chandrachud gave separate but concurring opinions. N.V. Ramana, J., stated that- “Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.” Stating that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold, Justice Ramana talked about a 2-step process to ascertain whether the information should be disclosed. He laid down non-exhaustive lists of considerations that need to be considered while assessing both the steps.

Internet curbs in Jammu and Kashmir and Article 370

In Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, the 3-judge bench of N.V. Ramana*, R. Subhash Reddy and B.R. Gavai, JJ., directed the J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain. “The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ., in Foundation for Media Professionals v. State (UT OF J&K), (2020) 5 SCC 746, constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. Noticing that since the issues involved affect the State and the Nation, the Court found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

The 5-judge Constitution Bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ., Shah Faesal v. Union of India, (2020) 4 SCC 1, refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench.

Post-Conviction Mental Health of Accused

In ‘X’ v. State of Maharashtra, (2019) 7 SCC 1, The 3-judge bench of N.V. Ramana*, M.M. Shantanagoudar and Indira Banerjee, JJ., held that it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad-spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally ­ill prisoners of various degrees. There is no overlooking the fact that the realities within the prison walls may well compound and complicate these problems.

Interpretation of Taxing Statutes

The Five-Judge Constitution Bench speaking through N.V. Ramana, J*., in Commr. of Customs v. Dilip Kumar and Co., (2018) 9 SCC 1 invalidated the ratio of Sun Export Corpn. v. Collector of Customs, (1997) 6 SCC 564, and laid at rest the controversy regarding the interpretation of an ambiguous provision exempting tax. The Bench noticed that there was distinction between interpreting a charging section and an exempting section. In case of ambiguity in a charging section, the interpretation has to be made in favour of the assessee.

Taxation

A 9-judge bench, by 7:2 majority in Jindal Stainless Ltd v. State of Haryana, (2017) 12 SCC 1 upheld the validity of the entry tax imposed by the States on goods imported from other States. The Bench held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution and that the word ‘Free’ used in Art. 301 does not mean “free from taxation”. T.S. Thakur, CJ* and Dr.  A.K. Sikri, S.A. Bobde*, Shiva Kirti Singh*, N.V. Ramana*, R. Banumathi*, A.M. Khanwilkar, JJ, giving the majority view said that States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally.

Notional Income for Homemakers

In Kirti v. Oriental Insurance Company Ltd., (2021) 2 SCC 166, where the 3-judge bench of NV Ramana*, SA Nazeer and Surya Kant*, JJ., had increased the total motor accident compensation of Rs 22 lakhs awarded by the Delhi High Court to Rs 33.20 lakhs after a motor vehicle accident claimed the lives of a man and his pregnant wife, leaving behind his parents and 2 children aged merely 3 and 4, Justice N.V. Ramana took the liberty to write a concurring opinion with respect to the issue of calculation of notional income for homemakers and the grant of future prospect with respect to them, for the purposes of grant of compensation.

Dowry Death

The bench of NV Ramana, CJ*., and Aniruddha Bose, J., in  Satbir Singh v. State of Haryana, (2021) 6 SCC 1, stated that judges need to be extra careful while conducting criminal trials relating to Section 304-B, IPC. The Court went on to summarise the law under Section 304­B, IPC read with Section 113­B, Evidence Act and the guidelines to be followed by the Courts while conducting trials in such cases.

In Gurmeet Singh v. State of Punjab, (2021) 6 SCC 108,- a case related to dowry death, where it was argued by the accused that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained, the 3-judge bench of NV Ramana, CJ*., and Surya Kant and Aniruddha Bose, JJ., rejected the contention and explained,

“Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.”

In State of M.P. v. Jogendra, (2022) 5 SCC 401, 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., found the said observation to be erroneous and 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.

Evidence

Explaining the scope of Section 92 Proviso (6) of the Evidence Act, 1872, the 3-judge bench of N.V. Ramana, CJ*., and Surya Kant and Aniruddha Bose, JJ., in Mangala Waman Karandikar v. Prakash Damodar Ranade, (2021) 6 SCC 139, held that the said proviso can be resorted to only in cases where the terms of the document leave the question in doubt. “But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92”. The Court was of the opinion that if the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself.

S.P. Velumani Graft Case

In the case where the Madras High Court had ordered an enquiry and obtained a report without   furnishing a copy thereof to Tamil Nadu Minister SP Velumani in a corruption case and unceremoniously closed the writ petition, the 3-judge bench of N.V. Ramana, CJ.,* and Krishna Murari and Hima Kohli, JJ., in S.P. Velumani v. Arappor Iyakkam, 2022 SCC OnLine SC 663 held that when the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

Public Interest Litigation

The 3-judge bench of N.V. Ramana, CJ* and A.S. Bopanna and Hima Kohli, JJ., in Esteem Properties Pvt. Ltd. v. Chetan Kamble, 2022 SCC OnLine SC 246, urged the Courts to be cautious when examining locus standi in Public Interest Litigations in order to ensure that frivolous or private interests are not masqueraded as genuine claims.

The Court observed that,

“Although the jurisprudence of Public Interest Litigation has matured, many claims filed in the Courts are sometimes immature. Thousands of frivolous petitions are filed, burdening the docket of both this Court and the High Courts. Noble intentions behind expanding the Court’s jurisdiction to accommodate socially relevant issues, in recent decades, have been critically analyzed”.

Contracts and Tenders

On the question as to ‘whether time is of the essence in a contract’, the bench of N.V. Ramana, CJ* and Surya Kant, J., in Welspun Specialty Solutions Ltd. v. ONGC, (2022) 2 SCC 382, held that merely having an explicit clause may not be sufficient to make time the essence of the contract. The same has to be culled out from the reading of the entire contract as well as the surrounding circumstances.

In a case where the process of cancellation of a tender was initiated without affording a chance to be heard to the lessees and the tender was cancelled “because of the possibility of larger profits”, the 3-judge bench of NV Ramana*, CJ and Vineet Saran and Surya Kant, JJ., in City and Industrial Development Corporation of Maharashtra Ltd v. Shishir Realty Private Limited, 2021 SCC OnLine SC 1141, held that when a contract is being evaluated, the mere possibility of more money in the public coffers does not in itself serve the public interest.

State Legislature

A 5-judge Constitutional Bench of Jagdish Singh Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose and N.V.Ramana, JJ., in Nabam Rebia, and Bamang Felix v. Deputy Speaker, (2016) 8 SCC 1, quashed the order of the Governor, preponing the 6th session of the Arunachal Pradesh Legislative Assembly by a month without consulting the Chief Minister, Council of Ministers or the Speaker, on account of being violative of Article 163 read with Article 174 of the Constitution of India.

Jahangirpuri Demolitions

the 3-judge bench of N.V Ramana, CJ., and Krishna Murari and Hima Kohli, JJ., in Jamiat Ulama-i-Hind v. NDMC, stayed the demolition drive undertaken by the NDMC at Jahangirpuri.

Prison Conditions During Covid-19

In Contagion of Covid 19 Virus in Prisons, In re, 2021 SCC OnLine SC 376, The 3-judge bench of NV Ramana, CJ., and L. Nageswara Rao and Surya Kant, JJ., issued directions to contain the spread of coronavirus in the overcrowded prisons of India.

Defense of Unsound Mind

The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ., in Mohd. Anwar v. State (NCT of Delhi), (2020) 7 SCC 391 held that in order to successfully claim defense of mental unsoundness under Section 84 of IPC, the accused must show by preponderance of probabilities that he/she suffered from a serious-enough mental disease or infirmity which would affect the individual’s ability to distinguish right from wrong.

Challenges and Reforms

The challenges before Chief Justice Ramana were multifold. When he took charge as the CJI, the country was severely reeling under the socio-economic effects of the Covid-19 Pandemic; the judiciary itself was staring at ever rising number of pending cases and judicial vacancies.

In order to resolve some of these issues, Justice Ramana launched ‘Fast and Secured Transmission of Electronic Records’ (FASTER)- a software to transmit court orders through a swift and secure electronic mode. Justice Ramana stated that the objective of FASTER is to eliminate the situation where release of prisoners gets delayed even after they have been granted bail and the delays were solely due to jail authorities not getting the certified hard copies of the bail orders[13].

The advent of the deadly Covid-19 wreaked havoc upon the journalists who were reporting SC judgments for benefit of the common man. Justice Ramana thus launched an app to provide the media access to Supreme Court video links. The step was appreciated for encouraging transparency[14]. Justice Ramana revived the public relation office of the Supreme Court by ensuring the availability of text of speeches[15].

Justice Ramana also agreed to a long-pending demand of the Supreme Court Bar Association to ensure the nomination of lawyers practising in the SC for appointment as High Court judges, by allowing the Bar body to form a search committee[16].

Opinions of Note

Justice N.V Ramana has been an opinionated Judge. Given his background as a student activist and a desire to enter into active politics, his being opinionated is hardly a surprise. Bolstered by his experiences in life and law, Justice Ramana’s views were reflective of his thought process and the desire to lead the judiciary towards a better and inclusive future.

Justice Ramana’s perceptions and views on several matters of importance have been a major highlight of his Chief Justiceship-

Law Reports and Legal Reporting

During the launch of SCC Pre-69 Volumes, Justice Ramana stressed upon the need for accurate reporting of judgments and court proceedings. He requested the judges’ fraternity to focus on simplicity in judgments where the ratio and decision is clear. Justice Ramana further emphasised that the reporting of law judgements is necessary because the people of India should be aware of their constitutional rights. He also implored that focus should be on making law reports reasonably priced and their availability in regional languages.

“There is a need for accurate reporting, otherwise people are confused. The majority of reports don’t know what order, proceedings, judgment, oral observations are. It is very unfortunate. Suppose a judge asks a negative question, immediately it is reported”.

A Judge’s Life

Speaking at the inaugural ceremony of ‘Justice SB Sinha Memorial Lecture’ on the topic “Life of a Judge”, organised by the National University of Study & Research in Law, Ranchi; Justice Ramana pointed out that a Judge’s life is tough one- “A person who has no connection with the profession cannot even imagine the number of hours that go into preparation. We spend many hours reading the paper-books and making notes for matters listed the next day. Preparation for the next day begins soon after the court rises, and will go on beyond midnight on most days. We continue to work even during weekends and court holidays to do research and author pending judgments. In this process, we miss out on many joys of our lives. Sometimes, we miss out on important family events”.[17]

Media Trial

Justice Ramana expressed his laments on the rising instances of media trials, stating that these instances are taking democracy backwards- “Of late, we see the media running kangaroo courts, at times on issues even experienced judges find difficult to decide. Ill-informed and agenda driven debates on issues involving justice delivery are proving to be detrimental to the health of democracy”.[18]

Judiciary, Democracy and Constitution

While speaking at the foundation stone laying ceremony of new J&K High Court complex at Srinagar, Justice Ramana highlighted the importance of a functioning judiciary for a healthy democracy. “For the functioning of a healthy democracy, it is imperative that the people feel that their rights and dignity are protected and recognised. Expeditious adjudication of disputes is the hallmark of a healthy democracy. Denial of justice would ultimately lead to anarchy”. He also stressed on the importance of digitization of for better dispersion of judicial functions – “The judiciary must be at its innovative best to ensure that the challenges to its working are met with just and Constitutional measures. Technology has been a strong aid to the judiciary. Now, virtual courts are bridging the gaps of accessibility by reducing time, cost and distance. But in a country like India, where a vast digital divide still exists, much needs to be done in order to harness the full potential of technological innovations”[19]

Expressing disappointment over the state of affairs in all the Three Estates of the State, Justice Ramana stated that “In India, a party in power believes that every governmental action is entitled to judicial endorsement and the Opposition parties expect the judiciary to advance their political positions and causes, but the judiciary is answerable to the Constitution and Constitution alone”.[20]

Bidding Adieu!

♦Did you Know? For the first time ever, the proceedings before the Ceremonial Bench of Chief Justice NV Ramana, on his last working day in the Supreme Court was live-streamed![21] 
The measure of respect that Justice Ramana had accumulated during his tenure at the Supreme Court was well revealed before the world when for the first time ever, a Supreme Court Proceeding, (especially a Ceremonial Bench proceeding) was live-streamed[22]. Those attending the proceedings were full of emotions and admiration for the retiring Chief Justice.

Attorney General of India, K.K Venugopal stated that “This is not the right age to retire for the judge of the Supreme Court or of the High Court. But this is not in my hands. The Lordships have started a new era”.  

Meanwhile Senior Advocate, Dushyant Dave tearfully expressed that Justice Ramana had been a ‘Citizens’ Judge’.

Senior Advocate, Kapil Sibal stated that, “I have competed 50 years with SC and many Chief Justices come and go. There is another family you take care of that is the Bar and my Lords have taken their proper care”. Expressing his gratitude to the outgoing Chief Justice, Mr. Kapil Sibal eloquently pointed out –

“When the sea is calm the ship will sail. You have maintained the balance in turbulent times. That the give is called to answer. You have maintained the high standards of the judiciary”.

President of the Supreme Court Bar Association, Vikas Singh stated that Justice Ramana has ensured the maintenance of Supreme Court’s prestige and has strived to protect the constitutional rights of the people.

Senior Advocate, Vibha Dutt Makhija expressed her appreciation for the work does by Justice Ramana for the women in judiciary.

Thanking the members of the Bar and the Bench, Justice Ramana once again stressed upon the importance of deploying modern technologies for effective functioning of the Supreme Court. He also expressed his apologies for not being able to focus on the issue of pendency and listing of matters. Conveying his gratitude and hoping for betterment of the Bar and the Bench, Justice Ramana stated-

“I am not the last or the first person who has worked for the development of this institution. Several great people have contributed a lot to the judiciary and we need to work together for the success of Indian Judiciary”.

Legacy

Chief Justice N.V. Ramana oversaw a nation that had reeled and then rallied from a deadly pandemic. When Covid-19 brought everyone on its toes and stopped the Nation on its tracks, Justice Ramana held on tightly to reins of the judiciary and his measures allowed the courts to function seamlessly. There can be no doubt that Justice Ramana’s judgments and opinions gave lot for the legal and non-legal fraternity to ponder on.

Coming from a humble background, Justice Ramana rose through the ranks and created his own niche within the ‘Legal Multiverse’. We are eager to see what the future holds for him. Whatever his next journey will be, we are sure that it will be equally illuminating.

†Sucheta Sarkar, Editorial Assistant, EBC Publishing Pvt Ltd

* Judge who authored the judgment/ wrote a concurring opinion

[1] CJI stresses on need for simple and accurate legal reporting, Live Law

[2] Justice NV Ramana, SC Observer

[3] First Generation Lawyer, Justice NV Ramana, ANI

[4] CJI Desgnate Justice NV Ramana, Hindustan Times

[5] Wanted to Join Politics- Jusitice NV Ramana, Outlook India

[6] Chief Justice and Judges, Supreme Court of India

[7] First Generation Lawyer, Justice NV Ramana, ANI

[8] ‘Wanted to join active politics’- Justice Ramana, Outlook India

[9] Chief Justice and Judges, Supreme Court of India

[10] Chief Justice and Judges, Supreme Court of India

[11] CJI stresses on need for simple and accurate legal reporting, Live Law

[12] CJI Desgnate Justice NV Ramana, Utkarsh Anand, Editor (Legal), Hindustan Times

[13] CJI launches FASTER, The Statesman

[14] Virtual Access To the SC, Supreme Court Observer

[15] CJI Ramana- A Determined Reformer, Deccan Herald

[16] CJI Ramana- A Determined Reformer, Deccan Herald

[17] “Wanted to join active politics”- Justice Ramana, Outlook India

[18] ‘Media Taking Democracy Backwards’- CJ Ramana, NDTV

[19] J&K HC New Complex

[20] ‘Judiciary answerable to the Constitution alone’- CJI Ramana, The Hindu

[21] Live Proceedings of CJI Ramana’s last working day, Live Law

[22] Live Streaming of SC Proceedings, Supreme Court of India

Know thy Judge

“Scrutiny of Judicial Process by Half Truth Knowledgeable is real danger to Rule of Law”

— Justice JB Pardiwala at ‘2nd Justice HR Khanna Memorial National Symposium’[1]

Justice Jamshed Burjor Pardiwala assumed office as a sitting judge of the Supreme Court of India on May 9th, 2022 and is in line to become the Chief Justice of India in 2028.

Did You Know? Justice Pardiwala is expected to serve a two-year and three months term as Chief Justice of India from May 3rd 2028 to August 11th 2030. [2]

Early Life and Education [3]

Justice JB Pardiwala was born in Mumbai on August 12th, 1965 into a family of lawyers having roots in Valsad located in the south of Gujarat. He is the great grandson of Navrojji Bhikaji Pardiwala who started his legal practice as early as in 1894, grandson of Cawasji Navrojji Pardiwala  who began his legal career in 1929 till 1958 and son of Burjor Cawasji Pardiwala who joined the Valsad Bar in 1955 following the same footsteps.

Justice J B Pardiwala, after attending St. Joseph Convent School, graduated from J P Arts College in 1985, and went on to obtain Bachelor of Law degree from K M Mujli College in 1988, all located in Valsad Gujarat.

♦Did You Know? His father Barjorji Cowasji Pardiwala was elected as an MLA from Valsad Assembly Constituency on an Indian National Congress ticket and even served as the Speaker of Gujarat Legislative Assembly from January 19, 1990 to March 16, 1990.

 

As an Advocate[4]

Justice Pardiwala began his legal career as an advocate from Gujarat High Court in January 1989 and eventually was elected to the State Bar Council in 1994 wherein he remained as a member till 2000. The year 2002 saw his appointment as Standing Counsel in the same High Court where he started his legal practice, Gujarat High Court, along with other subordinate courts.

♦Did You Know? If reports given by his colleagues are to be believed, Justice Pardiwala cleared approximately 1,200 pending matters during his tenure.

As a Judge

In High Court

Justice Pardiwala earned the coveted title of “Justice” when he began his judgeship on February 17th, 2011, having been appointed as Additional Judge of Gujarat High Court which was made permanent on January 28th, 2013. His tenure also saw him serving as the President of Gujarat State Judicial Academy. Justice Pardiwala mainly adjudicated matters related to Criminal and Civil Law, Services, and Indirect Taxation.

♦Did You Know? During his stint as a Judge at the Gujarat High Court, Pardiwala J authored 1,807 Judgments and was part of 2,195 Benches.

In Supreme Court

Justice Pardiwala was elevated to the Supreme Court on May 9th, 2022. He has experience of rendering judgments under his hat on multifarious issues like 400+ judgments on criminal matters, 250+ on service matters, around 200 on civil and direct taxation, 150+ on GST matters to name a few.[5]

♦Did You Know? Justice JB Pardiwala superseded many senior judges and chief justices of High Courts to make an entry in the Supreme Court in just 11 years of being elevated as a judge.[6]

His Top 18 Notable Judgments thus far are as follows: [List is inclusive of his term as a High Court Judge and Supreme Court judge]

‘Respect each other. Your children are watching you very closely’; Supreme Court advises parents in custody battle

The bench of AM Khanwilkar and JB Pardiwala*, JJ, in a matter relating to custody of two minor children, has advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives.’ Read more

[Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885]

Trial Court not a ‘mere post office’; must apply its mind while framing charges: SC unimpressed with discharge of murder accused based on postmortem report only

Explaining the importance of the role of Trails Courts, especially, with respect to framing of charges, the bench of AM Khanwilkar, Abhay S. Oka and JB Pardiwala*, JJ has held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

“Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e., whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached such a conclusion merely relying upon the port mortem report on record.”  Read more

[Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 SCC OnLine SC 913]

Prophet Remark Row| Why Supreme Court stayed Nupur Sharma’s arrest?

After politician and lawyer Nupur Sharma approached the Court claiming that there is an imminent necessity for the Court to intervene and protect her life and liberty as guaranteed under Article 21 of the Constitution, the bench of Surya Kant and JB Pardiwala, JJ has directed that no coercive action shall be taken against her pursuant to the impugned FIR(s)/complaint(s) or the FIR(s)/complaint(s) which may be registered/entertained in the future pertaining to the telecast dated 26-05-2022 on Times Now. Read more

[N.V. Sharma v. Union of India, 2022 SCC OnLine SC 895]

Illegal Coal Mining| Supreme Court stays Meghalaya HC’s order directing dismantling of existing coke plants

In a case concerning illegal coal mining in the State of Meghalaya, the Vacation Bench comprising Surya Kant and J.B. Pardiwala, JJ., stayed directions of the Meghalaya High Court directing the dismantling of existing coke plant(s). Read more

[JMK Coke Industry Pvt. Ltd. v. State of Meghalaya, 2022 SCC OnLine SC 783]

Maharashtra Political Crisis| Supreme Court refuses to stay Trust Vote; Uddhav Thakrey resigns as CM

The Vacation Bench of Surya Kant and JB Pardiwala, JJ gave a go ahead to the Special Session of the Maharashtra Vidhan Sabha convened on 30-0­6-­2022 for trust vote. Read more

[Sunil Prabhu v. Governor of Maharashtra, 2022 SCC OnLine SC 776]

Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Gujarat High Court answers

The Division Bench of J.B. Pardiwala* and Niral R. Mehta, JJ., while dealing with a matter regarding restitution of conjugal rights, stated that,

“Section 281 of the Muhammadan Law deals with the aspect of the restitution of conjugal rights but does not throw any light as to in what circumstances, a decree for restitution of conjugal rights can be granted or declined.”

Further, the Bench expressed that,

“A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.”

The present appeal was filed under Section 19 of the Family Courts Act, 1984 by the original defendant-wife questioning the legality and validity of the order passed by the Family Court on suit instituted by respondent-husband for restitution of conjugal rights whereby the family court allowed the suit instituted by the husband directed the appellant-wife to go back to her matrimonial home and perform her marital obligations. Read more

[Jinnat Fatma Vajirbhai Ami v. Nishat Alimdbhai Polra, 2021 SCC OnLine Guj 2075]

Gujarat High Court| Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling the significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’

In an instant appeal under Section 19 of the Family Courts Act, 1984 filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939, the Division Bench of J.B. Pardiwala* and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance. Read more

[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711]

♦Did you know? Justice J B Pardiwala is a huge fan of Manna Dey, an internationally acclaimed, celebrated Indian playback singer, music director, and a musician and loves watching and playing cricket.[7]

Gujarat High Court | Two finger test violates the right of victim to privacy, physical and mental integrity and dignity; held unconstitutional

A Division Bench of J.B. Pardiwala* and Bhargav D. Karia, JJ., while deciding the two clubbed appeals, held that,

“Two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity.” Read more

[State of Gujarat v. Rameshchandra Rambhai Panchal, 2020 SCC OnLine Guj 114]

[Marital rape] Gujarat High Court: A husband cannot be permitted to treat his wife like a chattel and violate her dignity

While deciding the present case wherein the focal point was marital rape and unnatural carnal activity, J.B. Pardiwala, J., observed that a wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent. Furthermore, the Court urged that the time is ripe that the legislature intervenes and goes into the soul of the issue of marital rape as it is a serious matter which unfortunately is not attracting serious discussions at the end of the Government. Read more

[Nimeshbhai Bharatbhai Desai v. State of Gujarat,2018 SCC OnLine Guj 732]

Gujarat High Court |For the purposes of S. 498-A IPC, a former wife will not come under the category of “the relative of the husband”

In the instant application wherein, the applicant invoked the inherent power of the Court under Section 482 of CrPC thereby seeking quashment of proceedings under Section 498-A read with Section 114 IPC, J.B. Pardiwala, J., held that for the purposes of Section 498-A IPC, a former wife will not come under the category of the “relative of the husband”. Thus, even if the former wife is the cause of matrimonial disputes, she cannot be prosecuted under Section 498-A IPC. Read more

[Honeyben Ashokbhai Patel v. State of Gujarat,  2017 SCC OnLine Guj 1558]

Gujarat High Court | Pregnancy of above 20 weeks can be terminated if it serves the ‘best interest’ of pregnant girl

J.B. Pardiwala, J. allowed a writ application filed by a victim of rape for termination of her pregnancy, subject to her examination by two doctors to ensure that the termination can be carried out safely. Read more

[Pujaben Subedar Yadav v. State of Gujarat, 2017 SCC OnLine Guj 453]

Gujarat High Court |Those who have not allowed to change the Muslim personal law have done great disservice to the community; Gujarat High Court quashes FIR

In a case where an FIR was registered by the father of a Muslim girl aged 16 years, against a man alleging offence under Sections 363, 366 Penal Code, 1860 and Section 18 POCSO Act, and the instant application was filed seeking quashing the same FIR, J B Pardiwala J. perusing the Muslim Law in light of said facts showed disappointment for the lack of a codified Muslim law. In the instant case, the Judge remarked

“Sixteen years is not an age for a girl to get married. At this age, probably, a girl would not even clear her S.S.C. Exam. At times, I fail to understand how she would be able to go ahead in life. Most of the time, unfortunately, this type of marriage fails, and one day, the girl would come back to her parents. By that time, it is too late in her life to realize her mistake as it would be very difficult for the parents to get her again settled in life.”

“… as the social condition in the Nation and throughout the world continues to change, the reality of life is, that even without a code on personal law of Muslim insofar as the marriage is concerned, the child marriage is going into oblivion. Education, changing pattern of the family structure, the structure of the family in the context of reality of the world, and economic necessities are on their own precipitating the situation. The members of the community have realized the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years”

The Court however quashed the charges under Sections 363 and 366 as there was no reason to believe Namira had been enticed into the union as Namira deposed before Court that she eloped and married the accused on her own free will and volition as she was in love with the applicant and vice versa.

[Yunusbhai Usmanbhai Shaikh v State of Gujarat, 2015 SCC OnLine Guj 6211]

Amendments to Section 80 HHC Income Tax Act, 1961 was challenged; Gujarat High Court rules amendments to apply prospectively; Retrospective provisions to be extended only if they benefit assesses

The petitioners filed a batch of civil appeals at the Gujarat High Court challenging newly inserted Amendments to Section 80 HHC of the Income Tax Act, 1961. Under Section 80HHC, businesses could avail themselves of specific Income Tax deductions—and had even been incentivized to do so by earlier governments. This benefit had been extended to them from Assessment Year 1988-89 to Assessment Year 2004-05. The petitioners contended that the Amendments sought to retrospectively remove these deduction benefits after 31st March, 2004—while also retrospectively granting them to another group of assesses for the same assessment period. This created two arbitrary subgroups within the same class of businesses, violating the Right to Equality and the Right to practice any profession.

The question was raised before the Court that whether the severable parts of the 3rd and 4th proviso to Section 80 HHC (3) Income Tax Act, 1961 are ultra vires Articles 14 and 19(1)(g) Constitution of India, a Division Bench of Bhaskar Bhattacharya and J B Pardiwala JJ. noted that if a valid piece of legislation is wrongly interpreted by the Tribunal, the aggrieved party should move to a higher judicial forum for correct interpretation. The Court thus held that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assesses whose assessments were still pending although such benefit will be available to the assesses whose assessments have already been concluded. In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assesses but not in a case where it affects even a fewer section of the assesses.

[Avani Exports v Commissioner of Income Tax Rajkot, 2012 SCC OnLine Guj 3837]

♦Did You Know? JB Pardiwala is the 4th Parsi Judge to serve at the Supreme Court and first minority High Court judge to be appointed in 5 years after Justice Abdul Nazeer[8]

Notable Judgments during COVID

[Midnight Hearing] Gujarat High Court | Situation of Ahmedabad on account of COVID-19 cannot be compared with situation in Puri or in the State of Orissa (sic Odisha); No Rath Yatra at Ahmedabad

A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., rejected all the civil applications in a midnight hearing, filed with regard to granting permission for Rath Yatra on the ground that Supreme Court allowed the Yatra in restricted manner by modifying its earlier order.   Read more

[Mahant Akhileshwardasji Ramlakhandasji v. State of Gujarat, 2020 SCC OnLine Guj 917]

Gujarat High Court | “If State would not have been doing anything, we all would have been dead”: Court berates politicizing of COVID-19 situation while at the same time reminding the State of its Constitutional obligations

A Division Bench of Vikram Nath, CJ and J.B. Pardiwala, J.* while addressing certain issues with regard to COVID-19, stated that,

“Healthcare access is the ability to obtain healthcare services such as prevention, diagnosis, treatment and management of diseases, illness, disorders, and other health ­impacting conditions. For healthcare to be accessible it must be affordable and convenient.” Read more

[Suo Motu v. State of Gujarat, 2020 SCC OnLine Guj 836]

Gujarat High Court | Gujarat Govt given directions to take stern and decisive actions in matters connected to private hospitals, migrants, protection of doctors and overall management of Covid-19 crisis

Taking suo motu cognizance of the way private hospitals in the State of Gujarat are indulging in blatant profiteering in the time of Covid-19, the Division Bench of J.B. Pardiwala and Ilesh J. Vora, JJ., gave important directions to the State Government in relation to regulation of private hospitals; proper arrangement of sending the migrants to their homes and overall management of every aspect of governance to deal with one of the greatest humanitarian crisis the world has seen. The Court also expressed its deep respect for all the frontline ‘corona warriors’ for showing exemplary dedication towards public welfare. Read more

[Suo Motu v. State of Gujarat, Writ Petition (PIL) No. 42/2020, decided on 22-05-2020]

[COVID-19] Gujarat High Court | No Rath Yatra shall be carried out at Ahmedabad; No activities secular or religious associated with Rath Yatra to be conducted

A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., held that in view of present times of outbreak of COVID-19, there shall be no Rath Yatra at Ahmedabad and any of the districts in the State of Gujarat. Read more

[Hitesh Kumar Vittalbhai Chavda v. Shri Jagannathji Mandir Trust, 2020 SCC OnLine Guj 910]

Gujarat High Court | “What is most essential as of now is a more humane approach or touch”; State Authorities should ensure that its citizens do not die of starvation

A Division Bench of J.B. Pardiwala* and Ilesh J. Vora, JJ., took suo motu cognizance of certain issues like the food, shelter for migrant workers, travel to hometowns, etc.

The court took notice of a few news items and took suo motu cognizance of the same, wherein the following was noted:

“Caught in the Covid­19 crossfire in pain? Grin and bear because cops won’t let you meet your doc with the police getting stricter in ensuring that people do not step out of their houses during the lockdown, patients with genuine ailments are suffering as they are at the receiving end”  

Read more

[Suo motu v. State of Gujarat, 2020 SCC OnLine Guj 718]

________________________________

†Arunima Bose, Editorial Assistant has put this report together 

*Judge, who has authored the judgment

[1] https://www.scconline.com/blog/post/2022/07/12/scrutiny-of-judicial-process-by-half-truth-knowledgeables-is-real-danger-to-rule-of-law-says-justice-pardiwala/

[2] https://www.scobserver.in/journal/who-are-the-nine-next-chief-justices-of-india/

[3] https://gujarathighcourt.nic.in/cjjfull?jid=435

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

[5] https://www.scobserver.in/judges/jamshed-burjor-pardiwala/

[6] https://timesofindia.indiatimes.com/india/justice-dhulia-superseded-29-judges-justice-pardiwala-48/articleshow/91452648.cms

[7] https://theprint.in/judiciary/in-justice-jb-pardiwala-sc-gets-a-future-cji-a-manna-dey-fan-and-a-cricket-lover/947824/

[8] https://www.outlookindia.com/national/supreme-court-to-get-full-strength-jury-as-two-judges-to-take-oath-of-office-on-monday-news-195556

Know thy Judge

Justice Sudhanshu Dhulia was born on 10-08-1960 in in Pauri Garhwal, Uttarakhand to Shri Keshav Chandra Dhulia, who was also a Judge at Allahabad High Court and Smt Sumitra Dhulia, a Sanskrit Professor. His grandfather was a freedom fighter who sentenced to jail for seven years (severed for three years and later was released) for participating in the Quit India Movement.

♦ Did You Know? Justice Dhulia is a grandson of Pundit Bhairav Dutt Dhulia who was a freedom fighter and editor of Hindi newspaper Karmabhumi newspaper in Garhwal, Uttarakhand.

Justice Dhulia has two brothers – the elder Himanshu Dhulia, a retired naval officer, and the younger Tigmanshu Dhulia is a filmmaker.

♦ Did You Know? Justice Dhulia is the brother of national award-winning film director and actor Tigmanshu Dhulia.[1]

He did his earlier schooling from Dehradun, Allahabad and Lucknow. In his growing up years, he participated in debates, played sports and was a part of number of plays in theatre. He graduated from Allahabad University in 1981 and completed his masters Masters in Modern History in 1983. Justice Dhulia completed his L.L.B. in 1986

As an Advocate

Justice Dhulia is a second-generation legal professional who joined the Bar at Allahabad High Court in 1986 and then shifted his base to High Court of Uttarakhand after formation of the new state in 2000.

Initially, he practiced on the Civil and Constitutional side before the High Court of Judicature at Allahabad and was the legal counsel for IIT, Roorkee, State Industrial Development Corporation of Uttarakhand Ltd. (SIDCUL), Bhagirathi River Valley Authority, amongst others. He was designated as Senior Advocate in June, 2004 at High Court of Uttarakhand.

♦ Did You Know? After the creation of the new  State  of Uttarakhand, Justice  Dhulia  became  its  First  Chief  Standing Counsel and was later appointed as State Additional  Advocate  General.

He was also an honorary professor in the Uttarakhand Academy of Administration (ATI) Nainital.

As a Judge

Justice Dhulia was elevated as a permanent Judge of Uttarakhand High Court on 01-11-2008. He was also appointed as the judge in-charge of education at the Uttarakhand Judicial and Legal Academy.

♦ Did You Know? Over 13 years as a Judge of the Uttarakhand High Court, Justice Dhulia authored 1,119 Judgments and was part of 1,415 Benches.[2]

He was elevated as Chief Justice of the Gauhati High Court on 07-01-2021 and took the oath on 10-01-2021.

♦ Did You Know? In the one year and four months he spent as Chief Justice of the Gauhati High Court, Justice Dhulia authored 81 judgments and sat on 110 Benches.[3]

Justice Dhulia was elevated as Judge of Supreme Court of India on 09-05-2022.

Notable Judgements

Tihar Jail Crime Syndicate| Supreme Court directs conman Sukash Chandra to reveal names of persons involved in Rs. 200 crores extortion case

In a highly controversial extortion case of about Rs. 200 crores in Delhi’s Tihar jail, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., has directed conman Sukash Chandra to reveal names of the persons involved in the alleged crime syndicate. [Sukash Chandra Shekhar v. Union of India, 2022 SCC OnLine SC 894]

Read More…

Supreme Court allows Project 39A of NLU Delhi to conduct psychological evaluation of a death row convict to bring out mitigating factors 

Adopting a humanitarian approach, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., allowed Project 39- A of the National Law University, Delhi, to have access to the appellant, a death row convict to interview him and conduct a psychological analysis in order to bring out mitigating circumstances.  [Karan v. State of M.P., 2022 SCC OnLine SC 732]

Read More…

Person languishes in jail for 2 years despite being granted bail by Supreme Court; Supreme Court criticizes Trial Judge for misinterpreting bail order

In a significant case, the 4-judges Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia, JJ., issued directions to all the High Courts of the country to submit reports indicating status of cases where bail has been granted by the Supreme Court i.e. if any of such persons are deprived of the opportunity of being released on bail for some reason or the other.

“… where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but  reincarnation of Hussainara Khatoon [(1980) 1 SCC 81] & Motil Ram[(1978) 4 SCC 47].”

[Gopisetty Harikrishna v. State of A.P., 2022 SCC OnLine SC 654]

Read More…

Right to cross-examination cannot be denied as a punishment for failure to deposit interim compensation under Section 143A NI Act

In a case where an offender under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was denied the right to cross-examine a witness upon failure to deposit the interim compensation under Section 143A of NI Act, the bench of UU Lalit*, S. Ravindra Bhat and Sudhanshu Dhulia, JJ has held that any such order foreclosing the right would not be within the powers conferred upon the court and would, as a matter of fact, go well beyond the permissible exercise of power. [Noor Mohammad v. Khurram Pasha, Crl.A. No.-001123-001123 / 2022, decided 02.08.2022]

Read More…

Husband seeking personal information such as salary of wife under Right to Information Act, 2005; Whether acceptable or not?

Dismissing the petition being devoid of merits, Sudhanshu Dhulia J., held that it cannot be any anybody’s case that a Government authority being Government school does not come under the definition of ‘public authority’. The only exception as to the information given under the Act under Section 8 of the RTI Act, is an exemption from disclosure of information. It further observed that the nature of information sought by respondent 8 is not covered under any of the exemption given under Section 8 of the RTI Act. [Jasmeet Kaur v. State of Uttarakhand, 2016 SCC OnLine Utt 2276]

Read More…

Mere installation of CCTV cameras in hospitals is not enough; HC directs to connect Hospital cameras to the nearest Police Station

The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19. [Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529]

Read More…

Not in interest of the child; HC stays Sessions Court’s order granting custody of teenage rape victim to relatives of accused 

The Division Bench of Sudhanshu Dhulia, CJ., and  Manash Ranjan Pathak, J., addressed a suo motu PIL concerning the plight of a rape victim, where the victim was a child between 12-15 years of age.

Observing the sensitivity of the matter, the Bench issued strict directions to the State to depute a team of medical officers, including a lady doctor to conduct medical examination on the victim, only for the determination of her age. The Bench emphasised strictly that the examination shall be limited to a bone ossification test and no other test be done as the victim had already been medically examined. [State of Arunachal Pradesh, In Re., PIL (Suo Moto) No. 5 of 2021, decided on 30-06-2021]

Read More…

Violence against Doctors; HC directs State to take immediate actions if any medical practitioner is manhandled or abused

The Division Bench of Sudhanshu Dhulia, CJ., and Manash Ranjan Pathak, J., addressed the issue of violence against doctors. The Bench ordered the State to ensure that no medical practitioner is manhandled or abused in any manner. [Suo Motu v. State of Assam, PIL (Suo Moto) No.4 of 2021, Order dated 14-06-2021]

Read More…

Court directs ration be provided to struggling sex workers and their families who have been identified; further asks AIDS societies to identify the rest and give relief 

The Division Bench of Sudhanshu Dhulia, CJ. and Manash Ranjan Pathak, J., took up a petition filed in the nature of PIL; concern raised was the present condition of sex workers in Assam who, according to the petitioner in most cases, were on the verge of starvation, considering the strange and difficult times of the present COVID-19 pandemic, which is now in its second wave. [Debajit Gupta v. State of Assam, 2021 SCC OnLine Gau 1169]

Read More…

“What kind of test is being done for determination of COVID-19 infection?”; HC directs Assam government to set up Mobile Medical Units in Tea Gardens

The Division Bench of Sudhanshu Dhulia, CJ., and Manash Ranjan Pathak, J., addressed the issues relating to situation under the Covid-19 pandemic in the Tea Gardens of Assam and conditioner of workers in these Tea Gardens.

“We have absolutely no doubt that since the Government already has the resources, these Mobile Medical Units must be put in use for testing and other purposes in the Tea Gardens as well, if not already being done.”

[Anjan Nagg v. Union 0f India, 2021 SCC OnLine Gau 1105]

Read More…

Court rejects Plea of bias against the Enquiry officer; Dismisses petition in the matter of departmental proceedings

The Division Bench of Sudhanshu Dhulia and Alok Kumar Verma, JJ., dismissed a writ petition which was filed in the nature of certiorari and mandamus for quashing of certain orders passed by the enquiry officer and with a prayer to change the enquiry officer on grounds of bias. [Kanwar Amninder Singh v. High Court of Uttaranchal, 2020 SCC OnLine Utt 722]

Read More…

State contractual employees entitled to claim Child Care Leave

A Full-Bench of Ramesh Ranganathan CJ, Sudhanshu Dhulia and Alok Kumar Verma JJ, held that contractual state employees are also entitled to child care leave, and that its denial would mean the denial of the rights of a child. [Tanuja Tolia v. State of Uttarakhand, 2020 SCC OnLine Utt 337]

Read More…

Law provides a remedy at two stages, one before authority concerned and later before appellate authority, both must be fair and in compliance with the norms of natural justice

Sudhanshu Dhulia*, J., contemplated a petition presented before him by the petitioner who was a member of Waqf Board and was subsequently disqualified, aggrieved by which he filed the instant petition.

The Court observed that though the petitioner had a remedy under sub-section (2) of Section 83 of the Waqf Act, 1995 however, in this particular case the existence of an alternative remedy before the Tribunal not operated as a bar inasmuch as the present order had been passed without affording opportunity of hearing to the petitioner. [Haji Rao Sharafat Ali v. State of Uttarakhand, 2019 SCC OnLine Utt 893]

Read More…

Voluntarily depriving husband of wife’s company and comfort of matrimonial life amounts to cruelty; Divorce granted 

A Division Bench of Sudhanshu Dhulia and Narayan Singh Dhanik*, JJ., contemplated the special appeals preferred against the judgment of Family Court, where the divorce petition was filed under Section 13 of Hindu Marriage Act, 1955 and was subsequently dismissed but the counterclaim of the wife-respondent for the right of residence was decreed in the favor of the respondent. [Raghuveer Kaintura v. Meera Kaintura, 2019 SCC OnLine Utt 718]

Read More…

Compensation increased considering raise in annual notional income of a non-earning member pursuant to 1994 amendment in MV Act

Sudhanshu Dhulia*, J., allowed the appeal filed by the appellants against the award passed by the Motor Accident Claims Tribunal, Rudrapur in MACT Case No. 153 of 2013, whereby compensation of Rs 3,00,000 was awarded to the claimants. [Parwati Devi v. Paramjeet Singh, 2019 SCC OnLine Utt 672]

Read More…

Reservations in favor of sportsperson is traceable to Article 16(1); atrocities of exhaustiveness of reservation under Art. 16(4) observed by the Court

A Full Bench of Ramesh Ranganathan* CJ and Sudhanshu Dhulia and Alok Singh, JJ., entertained a writ petition calling into question the exhaustiveness of Article 16(4) of the Constitution of India. [Dhananjay Verma v. State of Uttrakhand, 2019 SCC OnLine Utt 373]

Read More…

Biological resources are property of Nation; Divya Pharmacy’s challenge to Fair and Equitable Benefit Sharing dismissed

A Single Judge Bench comprising of Sudhanshu Dhulia, J. stated that Fair and Equitable Benefit Sharing (FEBS) under the Biodiversity Act, 2002, was welfare legislation that was made to cater the needs of the local and indigenous communities. [Divya Pharmacy v. Union of India, 2018 SCC OnLine Utt 1035]

Read More…

Judge has to be protected from vexatious charges and malicious litigations; Judge of Court of Record cannot be tried for committing contempt of his own Court

A Division Bench comprising of Sudhanshu Dhulia and Rajiv Sharma, JJ., dismissed a contempt petition against a ‘Judge of a court of record’ purely on the question of law.

“The duty of a Judge, after all, was to dispense justice – without fear or favour, affection or ill will, without passion or prejudice. It is not a part of his duty to please litigants or keep lawyers in good humor. A Judge, ironically, with respect to the office he holds, does not enjoy much liberty and freedom. The principal requirement for all Judges, and particularly for a Judge of Court of Record, is to maintain his independence. A Judge can also be very helpless at times with respect to the position he holds hence for the sake of the independence of judiciary, a Judge has to be protected, from vexatious charges and malicious litigations.”

[Chhitij Kishore Sharma v. Justice Lok Pal Singh, CCP No. 03 of 2018, Order dated 04-09-2018]

Read More…

In the matter of appointments to higher echelons, fairness should be the hallmark of selection

A Division Bench comprising of U.C. Dhyani* and  Sudhanshu Dhulia, JJ. dismissed a challenge against the appointment of State Chief Information Commissioner. The main challenge in the petition was that the office of the State Chief Information Commissioner has become the ‘dumping ground’ for retired bureaucrats, who are rewarded for their loyalty to the State Government. [Chandra Shekhar Kargeti v. State Of Uttarakhand; 2018 SCC OnLine Utt 29]

Read More…

† Ritu Singh, Editorial Assistant has put this report together 

* Judge who has penned the judgment.

[1] NDTV, https://www.ndtv.com/india-news/gauhati-hc-cj-dhulia-justice-pardiwala-of-guj-hc-take-oath-as-sc-judges-2958197

[2] Supreme Court Observer, https://www.scobserver.in/judges/sudhanshu-dhulia/

[3] Supreme Court Observer, https://www.scobserver.in/judges/sudhanshu-dhulia/

Know thy Judge

“A possibility of abuse cannot be used to deny legitimate rights to citizens”

Justice A.M. Khanwilkar

Jigya Yadav v. CBSE, (2021) 7 SCC 535

A trip down the memory lane is what Retirements and Farewells essentially are in regards to a Supreme Court Judge. It is a chance to reminisce and cherish their tenure and take in the importance and gravity of the imprint that they will leave behind in the form of their numerous decisions. The year 2022 is ‘The Year of Farewells’ for the Supreme Court, because never before has it seen such a flurry of retirements as it has in this year.

This month, Supreme Court’s Justice Ajay Manikrao Khanwilkar is all set to retire after a comprehensive term of 6 years. It also means that it is time for us to take our readers on a time travel, to run through the past and present of Justice Khanwilkar’s life in law, with anticipation for an equally stellar future.

Early Life and Career as an Advocate [1982- 2000][1]

Justice A. M. Khanwilkar was born on 30-07-1957 in Pune, Maharashtra. He did his graduation (B. Com) from Mulund College of Commerce, Mumbai and LL.B. from K.C. Law College, Mumbai.

After graduating in law, Justice Khanwilkar enrolled as Advocate on 10-02-1982. During his time as a counsel, Justice Khanwilkar handled Civil, Criminal and Constitutional matters before the Subordinate Courts, Tribunals and High Court of Judicature at Bombay on the Appellate Side as well as the Original Side. During his practicing years, Justice Khanwilkar got a wide range of exposure in Criminal, Civil, Constitutional, Election and Co-operative matters.

From the year 1984, Justice Khanwilkar started his practice in the Supreme Court of India. He also worked as Additional Government Advocate for the State of Maharashtra till December 1989. Justice Khanwilkar was appointed as Panel Counsel for Union of India in January 1990 whereby which, he had the opportunity to represent the Union of India in several matters of national importance.

In August 1994 he was appointed as Amicus Curiae by the Supreme Court to assist on environmental issues in the case of M.C. Mehta (Calcutta Tanneries’ Matter) v. Union of India, (1997) 2 SCC 411. He was also the Standing Counsel for the Election Commission of India for Supreme Court matters from March 1995 till his elevation as a Judge. In October 1995, Justice Khanwilkar was appointed as Standing Counsel for the State of Maharashtra for Supreme Court matters.

♦Did you Know? Even in private practice, Justice Khanwilkar had on occasion handled matters of great significance before the Supreme Court to represent persons in high public offices as also various statutory Authorities, Corporations and institutions.

As Member of Committees/Task Force/ Associations

Justice Khanwilkar was appointed as Member of the Task force (headed by the former Chief Justice of India Justice E. S. Venkataramaiah ) constituted by the Ministry of Health and Family Welfare, Government of India in November 1995 for examining and reporting on the amendments needed in the Prevention of Food Adulteration Act.

He was also the Executive Member of the Supreme Court Bar Association and Joint Secretary and Executive Member of the Supreme Court Advocates on Record Association.

Notable Appearances as a Counsel

Judgeship of the High Court [2000- 2016][2]

A.M. Khanwilkar’s tryst with judgeship began from the year 2000 when he was appointed as the Additional Judge of the Bombay High Court on 29-03-2000. He was later confirmed as permanent Judge of the Bombay High Court on 08-04-2002.

On 04-04-2013, Justice Khanwilkar was elevated the Chief Justice of the High Court of Himachal Pradesh. Thereafter, he was appointed as Chief Justice of Madhya Pradesh High Court on 24-11-2013.

Notable High Court Decisions

Bombay High Court

State of Maharashtra v. Murarao Malojirao Ghorpade, 2009 SCC OnLine Bom 1645

Swatanter Kumar, CJ., and S.B. Mhase, A.M. Khanwilkar, A.S. Oka and R.M. Savant, JJ., held that Words “all the land held by a person or as the case may be by a family unit whether in this State or any part of India” in Section 3(2) of Maharashtra Agricultural Lands (Ceilings on Holdings) Act (27 of 1961), cannot be given effect as it has extra-territorial operation beyond State of Maharashtra.

Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, 2009 SCC OnLine Bom 1996

The 3 Judge Bench of Swatanter Kumar, CJ., and A.M. Khanwilkar and Mridula Bhatkar, JJ., held that expression “or” occurring in Order 18, Rule 4(2), CPC, means “either”. Expression “shall” occurring in Order 18, Rule 4(2) is mandatory only to extent that cross-examination of witness, whose evidence has been taken on Affidavit in lieu of chief-examination, has to be taken. It was held that the Court has discretion to direct cross-examination to be done before the Commissioner appointed by it with such directions as it may think fit and it is not mandatory for Court to record evidence only before Court. Judicial discretion contemplated in Order 18, Rule 4(2) is to be exercised on settled principles of law; evidence can also be recorded by electronic media which may result in expeditious disposal.

Himachal Pradesh High Court

State of H.P. v. Mehboon Khan, 2013 SCC OnLine HP 4080

The 3 Judge Bench of AM Khanwilkar, CJ., and VK Sharma and Dharam Chandra Chaudhry,JJ., held that Section 293 of CrPC postulates that Expert Report cannot be thrown out merely because Expert was not summoned or because details of tests not been given, unless and until Court is satisfied that summoning of Expert for furnishing tests carried out is necessary.

Vikram Chauhan v. Managing Director, 2013 SCC OnLine HP 1715

While deciding the issue that whether Co-operative Banks established in the State of Himachal Pradesh are “State” within the meaning of Art. 12, the Bench of AM Khanwilkar, CJ., R.B. Misra and DD Sud, JJ., referred the issue for consideration of Full Bench.

Madhya Pradesh High Court

Asif Mohd. Khan v. State of M.P., 2015 SCC OnLine MP 6742

The powers of the competent authority regarding suspension of employee are, that they can pass order revoking suspension of employee and can also transfer him at another place. There is no prohibition in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, R. 9(5)(a) and (b) barring Competent Authority from passing such composite order.

Technofab Engineering Ltd. v. Bharat Heavy Electricals Ltd., 2015 SCC OnLine MP 6744

Sch. I, Art. 1-A [As substituted by M.P. Amendment Act (6 of 2008) w.e.f. 2-4-2008] of Court Fees Act, providing for upper limit of Court Fees instead of ad valorem Court Fees is beneficial legislation. The benefit of upper limit of Court Fees prescribed by Amendment Act, must be applied uniformly to all litigants instituting their claim after 2-4-2008, be it in the form of plaint before subordinate Court or memorandum of appeal before the High Court.

Judgeship of Supreme Court of India [2016- 2022]

Justice Khanwilkar was elevated as Judge of Supreme Court of India and assumed charge on 13-05-2016.

In March 2018, Justice Khanwilkar was appointed as the Chairman of the Water Disputes Tribunal called ‘The Mahanadi Water Disputes Tribunal’, for the adjudication of the water dispute regarding the inter-State River Mahanadi, and the river valley thereof. The appointment was done in exercise of the powers conferred by Section 4 of the Inter-State River Water Disputes Act, 1956, and by an order of the President. The Tribunal was constituted by the Central Government with the members nominated by the Chief Justice of India.

Notable Supreme Court Judgments

When it comes to Justice Khanwilkar’s many decisions as a Supreme Court Judge, his tenure has been multi-faceted, as his decisions have not centered around one specific field of law.[3]

♦Did You Know? Justice Khanwilkar has authored approximately 200+ Supreme Court Judgments[4]

Some of the notable decisions on various issues, that have been rendered by Justice A.M. Khanwilkar and the decisions that he had been a part of, are as follows-

Prevention of Money Laundering Act

Justice Khanwilkar’s final week before his retirement saw the coming of a significant decision concerning the constitutional validity of Prevention of Money Laundering Act, 2002. In Vijay Madanlal Choudhary v. Union of India, SLP (Criminal) No. 4634 OF 2014, the 3-Judge Bench of A.M. Khanwilkar*, Dinesh Maheshwari and C.T. Ravikumar, JJ., upheld the validity of the challenged provisions of the 2002 legislation. The Bench also held that in view of the special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under CrPC. “Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if Enforcement Directorate at the time of arrest, discloses the grounds of such arrest”.

Fundamental Rights

In Jigya Yadav v. CBSE, (2021) 7 SCC 535, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ., held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

A 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D Y Chandrachud and Ashok Bhushan in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1  held that the right to die with dignity is a fundamental right. An individual’s right to execute advanced medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.

Elections

In Shobhabai Narayan Shinde v. Commr., (2022) 3 SCC 35, while deciding that whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure? Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ., held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee –the Collector, under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

In the case of Public Interest Foundation v. Union of India, (2019) 3 SCC 224, the 5-judge bench comprising Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ., made the disclosure of criminal antecedents by the contesting candidates mandatory and held that the disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

In Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 692, the Bench of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

Local Government- OBC Reservation in Elections

The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, i.e., Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked-

 “State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

Schools, Students and Education

The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., in Indian School v. State of Rajasthan, (2021) 10 SCC 517, issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilized facilities/activities and not on the basis of actual data school-wise. The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Rajneesh Kumar Pandey v. Union of India, 2021 SCC OnLine SC 1005, directed the Central Government to notify the norms and standards of pupil-teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to Children/Child with Special Needs (CwSN) in the general schools. While the Petitions before the Court pertained to State of Uttar Pradesh and Punjab only, the extensive direction issued by the Court will apply pan India.

The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in Mamta Sharma v. CBSE, (2022) 1 SCC 368, refused to interfere with the assessment Scheme propounded by the C.B.S.E or I.C.S.E for the Class XII students and has held that, “… the stated Schemes are fair and reasonable and take into account concerns of all students and is in larger public interest.”

Legislative Processes/ Legislations

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 “undisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105, 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 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in L.R. Brothers Indo Flora Ltd v. Commissioner of Central Excise, 2020 SCC OnLine SC 705, held that for 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.

Judiciary, Courts and its Administration, Practice and Procedure etc.

Holding advocates to be officers of the Court, the bench of AM Khanwilkar* and CT Ravikumar, JJ., in NKGSB Cooperative Bank Limited v. Subir Chakravarty, 2022 SCC OnLine SC 239, held that it would be open to the Chief Metropolitan Magistrate (CMM)/District Magistrate (DM) to appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

The high voltage matter in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196; highlighting the case registered by the Central Bureau of Investigation against retired Orissa High Court Judge, Justice I.M. Quddusi, containing serious allegations implicating the said Judge under Ss. 8 and 120-B of the Prevention of Corruption Act, 1988, the 5-judge bench of Dipak Misra, CJ., along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ held that- “There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers”.

A 5-judge bench in State of Jharkhand v. Hindustan Construction Co. Ltd., (2018) 2 SCC 602, held that Supreme Court cannot entertain objections as the Original Court solely because it has appointed the arbitrator.

The bench of Justice A.M. Khanwilkar, Indu Malhotra and Ajay Rastogi, JJ., in Rachna v. Union of India, (2021) 5 SCC 638, held that the Courts cannot issue mandamus to frame policy. The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Explaining the importance of the role of Trial Courts, especially, with respect to framing of charges, the bench of A.M. Khanwilkar, Abhay S. Oka and J.B. Pardiwala, JJ., in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, Crl.A. No.-001041-001041/2022, held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Central Vista Project

The 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna, JJ., in Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7, by a 2:1 verdict, gave a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

Aadhar Card/ Right to Privacy

In K.S. Puttaswamy v. Union of India, (2018) 3 SCC 797, the Supreme Court quashed the order of Central Board of Secondary Education (C.B.S.E) asking the students to get themselves registered for National Eligibility-cum-Entrance Test (NEET) examinations by producing AADHAR numbers. The Court stated that

“The students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

Justice Khanwilkar was part of the Constitution Bench which decided one of the most significant decisions related to ‘Right to Privacy’ in K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 which declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy. However, certain orders and/or circulars making the citing of Aadhaar number mandatory have been held unconstitutional and struck down with a ratio of 4:1. However, despite going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court.

The 5- Judge Constitution Bench of A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., in Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1 addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1.

Same –Sex Relationships – Constitutionality of S. 377 IPC

In the landmark judgment of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the 5-Judge Bench of Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., partially struck down Section 377 of the Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court had upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

Centre- State Relationship/ Federalism

In State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 also known as Delhi v. Centre case, the 5-Judge Bench comprising of Dipak Misra, CJ., and A.K. Sikri, A.M Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan JJ., held that the words “any matter” employed in the proviso to clause (4) of Art. 239AA of the Constitution cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

Freedom of Speech and Expression and Hate Speeches

The bench of A.M. Khanwilkar and Sanjiv Khanna, JJ., in Amish Devgan v. Union of India, (2021) 1 SCC 1, refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation. While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Commutation of Death Sentence

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, JJ., in Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

Evidentiary value of Parliamentary Committee Reports

The 5-Judge Bench comprising of Dipak Misra, CJ., and A.M. Khanwilkar, Dr D.Y. Chandrachud, Dr A.K. Sikri and Ashok Bhushan, JJ., in Kalpana Mehta v. Union of India, (2018) 7 SCC 1, held that Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor can its validity be called into question.

Child Custody

The bench of A.M. Khanwilkar and J.B. Pardiwala, JJ., in a matter relating to custody of two minor children, advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives’. In Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, the Court observed that, “The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children”.

Sexual Offences

In a plea concerning imposition of certain conditions in a case involving a sexual offence against a woman, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity, the bench of A.M. Khanwilkar and S. Ravindra Bhat, JJ., in Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230, held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances.

Reminding the Courts of their duty, the Bench stated that-

“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the Court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the Court.”

Adultery

The 5-Judge Constitution Bench in Joseph Shine v. Union of India, (2019) 3 SCC 39, held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Dipak Misra, CJ., (for himself and A.M. Khanwilkar, J.,) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person.

Tribunals

The Bench of A.M. Khanwilkar, Hrishikesh Roy and C.T. Ravikumar, JJ., considered the question, whether the National Green Tribunal has the power to exercise Suo Motu jurisdiction in the discharge of its functions under the National Green Tribunal Act, 2010 in Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897, it was observed that “NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks its door”.

Taxation

Justice A.M. Khanwilkar was part of the majority opinion in the 7:2 majority Entry Tax verdict in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1  which upheld the validity of the entry tax imposed by the States on goods imported from other States. It was held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”.

Sidhu Road Rage

Allowing the review petition in the 34-year-old road-rage case involving cricketer-turned-politician Navjot Singh Sidhu that resulted into the death of one 65-yer-old Gurnam Singh, the bench of A.M. Khanwilkar and Sanjay Kishan Kaul, JJ., in Jaswinder Singh v. Navjot Singh Sidhu, 2022 SCC OnLine SC 652, imposed a sentence of one-year rigorous imprisonment on Sidhu in addition to the fine of Rs.1,000/- imposed in the order dated 15-05-2018.

Decisions That Initiated a Broader Discourse

In Justice Khanwilkar’s varied trajectory as a SC Judge, there were some decisions which generated quite a buzz, not only in the legal circles but also in the political crowd and the civil society at large. Besides the very recent decision in Madanlal Choudhry v. Union of India (PMLA case), there have been other cases which encouraged a dialogue within the various sections of the society and media. Some of those cases have been listed below-

Foreign funding for NGOs

In a major win for the Union of India, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Noel Harper v. Union of India, 2022 SCC OnLine SC 434, upheld the validity of the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010 vide the Foreign Contribution (Regulation) Amendment Act, 2020. The Court was of the opinion that receiving foreign donations cannot be an absolute or even a vested right. By its very expression, it is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems.

Gauri Lankesh Murder Case

In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Kavitha Lankesh v. State of Karnataka, 2021 SCC OnLine SC 956, set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak. N, regarding offences under Sections 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Godhra Riots Case

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and CT Ravikumar, in Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, dismissed Zakia Jafri’s plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State of Gujarat against the minority community.

Entry of Women in Sabrimala Temple

A 5-Judge Constitution Bench, in Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by Dipak Misra, CJ., for himself and A.M. Khanwilkar, J.; while, R.F. Nariman and Dr D.Y. Chandrachud, JJ., each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Dipak Misra, CJ., and A.M. Khanwilkar, J., held that the exclusionary practise  followed at the Sabarimala temple violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. The practice of exclusion of women of the age group of 10 to 50 years cannot be regarded as an essential part as claimed by the respondent Board.

 Legacy

♦Did you Know? During his tenure as a Judge, A.M. Khanwilkar, J., has been part of almost 809 Benches![5]   

Every field in Law is a vast universe in itself and it is through the contributions of lawyers and judges alike that people are able to access this ‘multiverse’. It would not be wrong to say that ever since Justice Khanwilkar entered the legal profession, at every step of his career, he has traversed into this infinite realm. At every phase of his career- whether it be Judging or Getting Judged- Justice Khanwilkar has not only proved his mettle, but his contributions have enriched the legal space for the posterity to savour.

Law is like the universe- infinite; thus, there are always chances of expansion. Since 1982, Justice Khanwilkar truly has been exploring the “multiverse of law”. We very much look forward to the next chapter in Justice Khanwilkar’s career with hopes that he keeps on exploring and expanding the legal boundaries.

†Sucheta Sarkar, Editorial Assistant has put this report together 

* Judge who has authored the decision

[1] Hon’ble Former Justices, High Court of Bombay

[2] Chief Justice and Judges, Supreme Court of India

[3] Justice AM Khanwilkar, SC Observer

[4] www.scconline.com

[5] Justice A.M. Khanwilkar, SC Observer

Know thy Judge

 “A man is both a creator and destroyer. Therefore, he is his own future. A better future can only be secured through the younger generation, existing and awaiting.”

M. M. Sundresh

Bharaneeswaran v. Govt. of T.N., 

2020 SCC OnLine Mad 2301

Born on 21-07-1962 at Erode, Justice M.M.Sundresh, completed his school and pre university education at Erode. He completed B.A. Degree at Loyola College, Chennai and LLB at Madras Law College.

As an Advocate

Justice Sundresh was enrolled as an Advocate in 1985 in the Bar Council of Tamil Nadu and Puducherry. The Government of Tamil Nadu had appointed him as the Counsel for the State Government and he worked as Government Advocate from 1991 to 1996. He was also the Counsel for Tamil Nadu Small Scale Industries Development Corporation.

Justice Sundresh had extensive practice in Civil (Appellate), Criminal and Writ Jurisdiction at Madras High Court. He had joined in the Chamber of S. Sivasubramaniam. He also joined in the Chamber of his father V. K. Muthusamy, Senior Advocate. He was selected to the RO System Monitoring Committee to watch the erection of ROS (Reverse Osmosis System) in Thiruppur District, Karur District and Erode District.

As a Judge

Justice Sundresh was elevated to the Madras High Court on 31-03-2009 and became permanent judge on 29-03- 2011. He was elevated as a Judge of Supreme Court of India on 26-08-2021.

  • Did You Know? During his 12-year stint as judge of Madras high court, Justice Sundresh had disposed of 1,03,563 cases.[1]

Notable Judgements at Supreme Court

CCI v. State of Mizoram, 2022 SCC OnLine SC 63

While adjudicating the dispute with regard to jurisdiction of CCI to inquire into allegations of bid rigging, collusive bidding, and cartelisation in the tender process for appointment of selling agents and distributors for lotteries organised in the State of Mizoram the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., concluded that,

“Lotteries may be a regulated commodity and may even be res extra commercium; that would not take away the aspect of something which is anti-competition in the context of the business related to lotteries.”

Read More…

State of Uttarakhand v. Sudhir Budakoti, 2022 SCC OnLine SC 420

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that when there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one.

Read More…

Union of India v. Manpreet Singh Poonam, 2022 SCC OnLine SC 272

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has observed that a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules.

Read More…

State of Rajasthan v. Mahesh, Special Leave to Appeal (C) No.12376/2019

In the case where it was argued before the Court that the Industrial Disputes (Rajasthan Amendment) Act, 1958 which received the President’s assent on August 12, 1958 stands eclipsed after the enactment of the Contract Labour (Regulation & Abolition) Act, 1970, the bench of Sanjay Kishan Kaul and MM Sundresh, JJ has dismissed the SLP after observing that the issue must first be raised before the Industrial Tribunal or the High Court.

Read More…

Union of India v. Manpreet Singh Poonam, 2022 SCC OnLine SC 272

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that a voluntary retiree cannot seek retrospective promotion as a matter of right sans rules governing.

Read More…

Jogi Ram v. Suresh Kumar, 2022 SCC OnLine SC 127

In a half a century old case relating to a Will, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the objective of Section 14(1) of the Hindu Succession Act, 1956 is to create an absolute interest in case of a limited interest of the wife. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of.

“If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator.”

Read More…

Jasdeep Singh v. State of Punjab, 2022 SCC OnLine SC 20

Drawing an interesting analogy to explain the scope of Section 34 of IPC, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has said that it is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper.

“A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.”

Read More…

Dhananjay Rai v. State of Bihar, 2022 SCC OnLine SC 880

In furtherance of Criminal Justice, the bench of Abhay S. Oka* and MM Sundresh, JJ has held that an appeal against conviction filed by an accused under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973 cannot be dismissed on the ground that the accused is absconding.

Read More…

Abu Salem Abdul Kayyum Ansari v. State of Maharashtra, 2022 SCC OnLine SC 852

In a big development, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has directed that the infamous gangster/terrorist Abu Salem be released after the completion of 25 years of his sentence in terms of the national commitment as well as the principle based on comity of courts. Salem was convicted on 12.10.2005.

Read More…

Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154

In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.

Read More…

Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, 2021 SCC OnLine SC 1031

In a case relating to dishonour of cheques where it was alleged that the complaint was filed by the managing director in his personal capacity and not on behalf of the Company, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that there could be a format where the Company’s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. It was further held that it would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation.

Read More…

U.N. Bora v. Assam Roller Flour Mills Assn., 2021 SCC OnLine SC 968

In the case dealing with willful disobedience of the order passed by the Supreme Court in the year 2008 with respect to the levy made while upholding Section 21 of the Assam Agricultural Produce Market Act, 1972, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that vicarious liability as a principle cannot be applied to a case of contempt and that the appellants cannot be implicated for alleged action of their subordinates.

Read More…

V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896

Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.

Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,

“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”

Read More….

Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833

Coming down heavily upon a contemnor, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the power to punish for contempt is a constitutional power vested in this Court which cannot be abridged or taken away even by legislative enactment.

“Such litigants cannot be permitted to have their way only because they can plead and write anything they feel like and keep on approbating by sometimes apologising and then again bringing forth those allegations.”

Read More…

B. Sailesh Saxena v. Union of India, WP (Civil) No. 555 of 2020

A Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ. dismissed a writ petition filed by an advocate seeking to stall elevation of a judicial officer as a Judge of the Telangana High Court. The Supreme Court said that the petition was a gross abuse of the process of law and imposed costs of Rs 5 lakh on the petitioner.

Read More…

Notable Judgements at High Court

M. Padmanabhan v. District Collector, 2021 SCC OnLine Mad 698

The Division Bench of M.M. Sundresh and S. Ananthi, JJ., held that temple shall not be a place for perpetuating communal separation leading to discrimination, on the other hand, it should facilitate all those persons having common faith to come and worship.

 “The classification among men has got no place in the aboard of God.”

Read More…

Bharaneeswaran v. Government of Tamil Nadu, 2020 SCC OnLine Mad 2301

The Division Bench of M.M. Sundresh* and R. Hemalatha, JJ., disposed of the petitions with regard to concerns arising due to online classes, stating that it hopes the above-laid guidelines are complied with and makes it clear that all the directions are applicable to the Schools functioning in the Tamil Nadu.

“A great nation is built on a character of its own citizens. It transforms into the character of the nation leading to its progress achieved through a value system.”

Read More…

 Bader Sayeed v. Union Of India, 2017 SCC OnLine Mad 74

While examining the validity of certificates issued by the Kazis in the country in general and in Tamil Nadu in particular in respect of Talaq, the Division Bench of Sanjay Kishan Kaul, C.J., and M.M. Sundresh, J., held that for purposes of the courts and legal proceedings, the certificate in respect of Talaq issued by Chief Kazi is only an opinion and has no legal sanctity in view Section 4 of the Kazis Act, 1880 according to which the office of Kazi does not confer on the person any judicial or administrative power.

Read More…

 N. Selvathirumalv. Union of India,2016 SCC OnLine Mad 1624

Taking a landmark step, the Division Bench of the Court comprising of S.K. Kaul*, C.J. and M.M. Sundresh, J., directed the schools affiliated to the Central Board of Secondary Education (CBSE) and the private schools in the state of Tamil Nadu to make the singing of the National Anthem as an integral part of their curriculum.

Read More…

 V. Vasanthakumarv. H.C. Bhatia, 2015 SCC OnLine Mad 300

While dismissing a petition with regard to the setting up of National Court of Appeal as suggested by the Constitution Bench of the Supreme Court in Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767 , the Division Bench of S.K. Kaul, C.J. and M.M. Sundresh, J., stated that setting up of a National Court of Appeal is a matter of legislation and constitutional amendment, therefore, repeated agitations by the petitioner for reconsideration on the same by filing petitions is needless and thus not maintainable.

Read More…

 C. Udayachandrika v. Secy., T.N. Legislative Assembly, 2015 SCC OnLine Mad 194

In the instant case where the petitioner appearing in person praying to the Court to declare the notification issued by the Tamil Nadu Gazette, Extraordinary No.223 dated 8.11.2014 stating that former Chief Minister of Tamil Nadu, Selvi J. The Court observed that  such frivolous petitions are to be penalized by imposing exemplary costs but, since the petitioner committed this misadventure for the first time therefore she was let off only with a caution so as to dissuade her to pursue any such frivolous petitions under the garb of a Public Interest Litigation.

Read More…

Solaimalai v. Tamil Nadu Forest Plantation Corp. Ltd., 2019 SCC OnLine Mad 3883

“Man is the most insane species. He worships an invisible God and destroys a visible Nature, unaware that this Nature he’s destroying is this God he’s worshiping.”

– Hubert Reeves

A Division Bench of Justices M.M. Sundresh* and N. Sathish Kumar had ordered a Central Bureau of Investigation probe into a series of elephant poaching incidents reported in the State. They also observed the network involved was cutting across boundaries.

“Wisdom requires that it should be left in the hands of man of knowledge in that field with the coordination of all the stake holders and this Court as well. Therefore, we are inclined to appoint a Committee consisting of Experts in various fields to address the larger issues such as banning the plastic in the forest zone, prohibiting the polluted vehicles to ply, employing the local population, increasing the strength of the staff, creating a strong seed bank, evolving measures to be adopted in removal and rehabilitation, priority of the area which requires immediate attention, areas requiring specific action, mapping of the entire area, possibility of using any other fund towards achievement of the task, utilising the removed plants and trees towards the object, creating a specific cell to be decided by the Government, disposal of the removed species and strengthening the indigenous species.”

†Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

[1] https://www.scobserver.in/judges/m-m-sundresh/

Know thy Judge

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

-Justice Krishna Murari[1]

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

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

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

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

Notable Supreme Court Judgments 

S.P. Velumani v. Arappor Iyakkam, 2022 SCC OnLine SC 663

In the case where the Madras High Court had ordered an enquiry and obtained a report without   furnishing a copy thereof to Tamil Nadu Minister SP Velumani in a corruption case and unceremoniously closed the writ petition, the 3-judge bench of NV Ramana, CJ* and Krishna Murari and Hima Kohli, JJ has held that when the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

Read more

Deepak Yadav v. State of U.P., 2022 SCC OnLine SC 672

In a murder case where the Allahabad High Court had granted bail to the main accused only on the basis of parity, the 3-judge bench of  NV Ramana, Krishna Murari* and Hima Kohli, JJ has cancelled the bail after observing that the High Court should have taken into consideration factors like the criminal history of the accused, nature of crime, material evidences available, involvement of accused in the said crime, recovery of weapon from his possession, etc.

Read more

K.C. Laxmana v. K.C. Chandrappa Gowda, 2022 SCC OnLine SC 471

In a case where a portion of a joint Hindu Family was alienated ‘out of love and affection’ by way of a gift deed, the bench of SA Nazeer* and Krishna Murari, JJ has explained the scope of powers of members of Joint Hindu Family and has held that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’.

Read more

Vijay Kumar Ghai v. State of W.B., 2022 SCC OnLine SC 344

The Division Bench S. Abdul Nazeer and Krishna Murari*, JJ., reversed the impugned order of the Calcutta High Court for being affected with the vice of forum shopping. The Bench expressed,

“The timeline of filing complaints clearly indicates the malafide intention of Respondent 2 which was to simply harass the petitioners so as to pressurise them into shelling out the investment made by Respondent 2.”

Read more

Babu Venkatesh v. State of Karnataka, (2022) 5 SCC 639

In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of BR Gavai* and Krishna Murari, JJ that many a times the applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons and hence, such applications are to be supported by affidavits.

The Court held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. Filing of an affidavit is necessary so that the persons making the application would be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. If the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

Read more

Kahkashan Kausar v. State of Bihar, 2022 SCC OnLine SC 162

In a dowry demand and harassment case, where a woman had lodged criminal complaint against her husband and in-laws but  no specific role was attributed to the in-laws, the bench of SA Nazeer and Krishna Murari*, JJ has held that it would be unjust if the in-laws are forced to go through the tribulations of a trial and that general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. The Court observed that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.

Read more

Arunachala Gounder v. Ponnusamy, 2022 SCC OnLine SC 72

The bench of SA Nazeer and Krishna Murari*, JJ has held that if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Read more

K. Jayaram v. BDA, 2021 SCC OnLine SC 1194

In a case where the party, in a subsequent petition seeking same relief, had not disclosed the filing of the suit, its dismissal by the Civil Court and the confirmation of the said judgment by the High Court in the writ petition, the bench of SA Nazeeer* and Krishna Murari, JJ has held that the appellants did not come to the court with clean hands and stressed that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge.

Read more

Rasmita Biswal v. National Insurance Co. Ltd., (2022) 2 SCC 767

With an aim to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident, the bench of SA Nazeer* and Krishna Murari, JJ has asked the Department of Justice, Ministry of Law and Justice to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted.

Read more

Hasmat Ali v. Amina Bibi, 2021 SCC OnLine SC 1142

In a case where the Orissa High Court had not assigned any reasons for the dismissal of an appeal, the bench of SA Nazeer* and Krishna Murari, JJ has set aside the said order and has held that the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.

Read more

N. Jayasree v. Cholamandalam MS General Insurance Company Ltd., 2021 SCC OnLine SC 967

The Division Bench of S. Abdul Nazeer* and Krishna Murari, JJ., held that neither the percentage of deduction for personal expenses be governed by a rigid rule or formula of universal application nor does it depends upon the basis of relationship of the claimant with the deceased.

Passing a landmark decision, the Bench granted compensation to mother-in-law of the deceased considering her to be of the dependents of the deceased. The Bench remarked,

“It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance.”

Read more

Geo Varghese v. State of Rajasthan, 2021 SCC OnLine SC 873

In a case where a 14-year-old had committed suicide after his PTI Teacher had allegedly “harassed and insulted him in the presence of everyone”, the bench of SA Nazeer and Krishna Murari*, JJ has held that the suicide note suggested that it was a rhetoric document, penned down by an immature mind and that it was the hypersensitive temperament of the deceased which led him to take such an extraordinary step. The Court said that the action of the teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.

The Court explained that,

“A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student.”

Read more

Garg Builders v. BHEL, 2021 SCC OnLine SC 855

The bench of SA Nazeer* and Krishna Murari, JJ has held that if the contract contains a specific clause which expressly bars payment of interest, then it is not open for the arbitrator to grant pendente lite interest.

Read more

Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660

A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

Read more

Abdul Ahad v. Union of India, 2021 SCC OnLine SC 627

The 3-judge bench of L. Nageswara Rao, BR Gavai* and Krishna Murari, JJ had refused to grant any relief to the students who were admitted to the 1st  year Professional MBBS course for the Academic Session 2016-2017 in Glocal Medical College, in contravention of the Notification that provided that the admissions were to be done only through the centralized admission process and not by way of private counselling.

Read more

Neelima Srivastava v. State of U.P., 2021 SCC OnLine SC 610

A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. held that there is a distinction between overruling a principle and reversal of the judgment. The Supreme Court reaffirmed the settled position of law by explaining that:

“Mere overruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. “

Read more

Hemraj Ratnakar Salian v. HDFC Bank Ltd., 2021 SCC OnLine SC 611

The Division Bench of S. Abdul Nazeer and Krishna Murari, JJ., addressed a pertinent issue of whether the rent act would come to the aid of a “tenant in sufferance”.

Read more

Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 724

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ., observed that the Court would wait for the order of the Gujarat High Court before passing any orders in the issue relating to withdrawal of senior Designation of advocate Narendra Oza. Oza, who is also the President of the Gujarat High Court Advocates’ Association, was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court.

Read more

Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733

A 3-judge bench comprising of Sanjay Kishan Kaul, Krishna Murari and Hrishikesh Roy,* JJ., while deciding a criminal appeal challenging the judgement of Chhattisgarh High Court upheld the conviction of the appellant under Sections 302 and 34 of the Indian Penal Code, 1860 and acquittal of the co-accused.

The Court held that the recovery of the alleged weapons of assault on the statement of the accused can be a key evidence to support the prosecution but the recovered articles were not linked to the crime. Moreover, when relevant forensic evidence was withheld by the prosecution, an adverse inference will have to be drawn against the prosecution.

Dumka Medical College v. Board of Governors in Supersession of Medical Council of India, 2021 SCC OnLine SC 122

The Division Bench comprising of L. Nageswara Rao and Krishna Murari, JJ., dismissed the instant petition for grant of permission for Medical Colleges after observing infrastructural and faculty deficiencies. The Bench remarked,

“It is clear that gross deficiencies still exist in spite of the affidavits and undertakings filed on behalf of the State of Jharkhand. No action has been taken to improve the situation.”

Read more

Harshit Agarwal v. Union of India, (2021) 2 SCC 710

The Division Bench comprising of L. Nageswara Rao* and Krishna Murari, JJ., addressed the plight of NEET students. The Bench stated,

“Decision of government not to reduce minimum marks for admission was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters.”

Read more

Samir Agrawal v. CCI (Cab Aggregators Case), (2021) 3 SCC 136

In a plea seeking inquiry into the alleged anti-competitive practices of Ola and Uber of entering into price-fixing agreement, the 3-judge bench of RF Nariman*, KM Joseph, Krishna Murari, JJ has refused to interfere with the concurrent finding of CCI and NCLAT that Ola and Uber do not facilitate cartelization or anti-competitive practices between drivers, who are independent individuals, who act independently of each other, so as to attract the application of section 3 of the Competition Act, 2002.

Read more

Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572

Dealing with the question whether the Parliament was competent to enact the National Highways Act, 1956 and the National Highway Authority of India Act, 1988 for construction of new roads traversing through the open green-fields, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that

“… there is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard.”

Read more

Renuka Dey v. Naresh Chandra Gope, 2020 SCC OnLine SC 895

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has held that under the West Bengal Restoration of Alienated Land Act, 1973, homestead land, when included within the meaning of the term ‘land’ means homestead of the agriculturist and not any or every structure of non­-agricultural land.

Read more

SBI v. Metenere Ltd., (2021) 1 SCC 191

The 3-Judge Bench of Arun Mishra, B.R. Gavai and Krishna Murari, JJ., set aside the NCLAT’s Order with regard to the appointment of Resolution Professional where the question for consideration was whether an ex-employee of the ‘Financial Creditor’ having rendered services in the past, should not be permitted to act as ‘Interim Resolution Professional’ at the instance of such ‘Financial Creditor’, regard being had to the nature of duties to be performed by the ‘Interim Resolution Professional’ and the ‘Resolution Professional’.

Read more

Raghunath v. Radha Mohan, 2020 SCC OnLine SC 828

On the question as to whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time, the 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has held that

“… it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property.”

Read more

Sahir Sohail v. Dr A.P.J. Abdul Kalam Technical University, (2020) 9 SCC 696

The 3-judge bench of SA Kaul, Aniruddha Bose and Krishna Murari, JJ ‘reluctantly’ dismissed an SLP arising out of a Allahabad High Court order which held that the students with certificates from ‘bogus and fictitious’ organisations cannot be allowed to continue pursuing their courses at Dr APJ Abdul Kalam Technical University (APJAKTU).

The Court said,

“We do have sympathy but this is not a case where we can really translate our sympathy to a relief in the present case, more so, in view of the fact that since this exam system is found to be fraudulent, the petitioners before us will never have a recognized plus two status and to give such students the opportunity to get a degree from the University will create a great anomaly.”

Read more

Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415

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

Read more

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

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

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

Read more

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

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

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

Read more

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

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

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

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

Read more

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

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

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

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

Read more

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

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

Read more

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

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

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

Read more

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

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

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

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

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

Read more

In Re Prashant Bhushan, (2021) 1 SCC 745

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

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

Read more

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

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

Read more

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

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

Read more

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

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

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

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

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

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

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

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

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

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

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

†Suchita Shukla, Editorial Assistant, EBC Publishing Pvt. Ltd. 

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

Know thy Judge

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

– Justice V. Ramasubramanian

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

 

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

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

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

From an Advocate to a Supreme Court Judge

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

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

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

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

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

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

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

Notable Judgments at Supreme Court

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

Asset Reconstruction Co. (India) Ltd v. Chief Controlling Revenue Authority, 2022 SCC OnLine SC 515

While dealing with a case under the Gujarat Stamp Act, 1958, the bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a).

Read More…

Dinesh Chandra Shukla v. State of U.P., 2022 SCC OnLine SC 353

The Division Bench of Hemant Gupta and V. Ramasubramanian*, JJ., reversed the impugned order of the Allahabad High Court holding that where no particular qualification, particularly Master’s Degree in ‘Karm Kand’ was prescribed for the post of Lecturer in ‘Karm Kand’ either by the University Statute or in the advertisement, candidature of the appellant could not be rejected for not holding a Master’s degree in ‘Karm Kand’.

Opining that the appellant’s rejection was a result of stale relationship of the Chancellor and the Vice-Chancellor, the Bench commented,

“…perhaps the entire selection process undertaken in 2006 by the University, became victims of the crossfire between the Chancellor and the Vice-Chancellor.”

Read More…

Sanjay Gupta v. State of U.P., 2022 SCC OnLine SC 443

In the 2006 Meerut fire case, the bench of Hemant Gupta and V. Ramasubramanian, JJ has held the Organizers responsible for the incident and not the Contractor as the Contractor was only responsible for executing work as assigned to him by the Organizers. It observed,

“The contractor has worked for the Organizers and not for the victims. Hence, the Organizers alone are responsible to protect the life and liberty of the victims.”

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

Read More…

Fertilizer Corpn. of India Ltd. v. Rajesh Chandra Srivastava, 2022 SCC OnLine SC 417

The bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that an ad hoc payment made to the workers pursuant to the interim orders passed by this Court in a previous round of litigation does not form part of “wages” within the meaning of the expression under Section 2(s) of the Payment of Gratuity Act, 1972, for the purpose of calculating gratuity.

Read More…

Shripati Lakhu Mane v. Maharashtra Water Supply and Sewerage Board, 2022 SCC OnLine SC 383

Explaining the law on abandonment on contractual obligation, the bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that the refusal of a contractor to continue to execute the work, unless the reciprocal promises are performed by the other party, cannot be termed as abandonment of contract. A refusal by one party to a contract, may entitle the other party either to sue for breach or to rescind the contract and sue on a quantum meruit for the work already done.

Read More…

DEVAS Multimedia (P) Ltd.v. Antrix Corporation Ltd., 2022 SCC OnLine SC 46

In the case where the bench of Hemant Gupta and V. Ramasubramanian*, JJ upheld NCLAT’s order of winding up of Devas Multimedia Private Limited, the requirement of advertising the winding up petition was looked into and the Court observed that the failure to publish an advertisement would not lead to the automatic dismissal of the petition for winding up.

Read More…

Brigade Enterprises Ltd. v. Anil Kumar Virmani, 2021 SCC OnLine SC 1283

In a case where it was alleged that more than one consumer cannot institute a complaint unless they come within the definition of the word “complainant” of Section 2(5) of the Consumer Protection Act, 2019 and also satisfy the requirements of Section 38(11) read with Order I Rule 8 CPC, the bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that it is wrong to contend that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter.

Read More…

Secretary to Govt. Department of Education (Primary) v. Bheemesh, 2021 SCC OnLine SC 1264

Clearing the air over the applicability of a new or modified Compassionate Appointment Scheme that comes into force after the death of the employee, the bench of Hemant Gupta and V. Ramasubramanian*, JJ the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor such as the date of consideration of the application of the dependant.

Read More…

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

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

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

Read more…

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

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

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

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

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

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

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

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

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

Read more…

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

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

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

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

Read more…

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

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

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

The Court observed that

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

Read more…

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

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

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

Read more…

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

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

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

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

Read more…

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

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

Read more…

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

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

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

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

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

Read more…

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

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

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

Read more…

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

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

Read more…

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

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

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

Read more…

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

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

Read more…

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

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

Read More…

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

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

Read more…

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

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

Read more…

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

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

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

Read More…

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

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

Read more…

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

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

Read more…

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

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

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

Read more…

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

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

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

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

Read more…

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

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

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

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

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

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

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

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

Read more…

Somasundaram v. State, (2020) 7 SCC 722

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

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

Read more…

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

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

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

Read more…

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

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

Read more…

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

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

Read more…

Notable Judgments at High Court

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

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

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

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

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

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

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

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

Read more…

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

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

Read more…

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

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

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

Read more…

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

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

Read more…

State v. Rasu, 2016 SCC OnLine Mad 1807

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

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

Read more…

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

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

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

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

Read more…

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

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

Read more…

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

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

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

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

Read more…

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

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

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

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

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

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

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

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

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

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

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

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

– Warren Buffett

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

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

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

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

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

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

†Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

** Judge who has penned the concurring judgment.

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

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

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

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

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

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

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

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

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

Patna High Court
Appointments & TransfersNews

President appoints S/Shri (i) Khatim Reza and (ii) Dr Anshuman, 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. 3-6-2022]

Appointments & TransfersNews

Centre Notifies the Transfer Orders of the following High Court Judges:

S. No.

Name of the Judge Present High Court

High Court to which Transferred
1. Shri Justice Lanusungkum Jamir Manipur HC Gauhati HC
2. Shri Justice Ahsanuddin Amanullah Andhra Pradesh HC Patna HC
3. Shri Justice Purushaindra Kumar Kaurav Madhya Pradesh HC Delhi HC
4. Shri Justice Chitta Ranjan Dash Orissa HC Calcutta HC
5. Shri Justice Subhasis Talapatra Tripura HC Orissa HC
6. Shri Justice Dhiraj Singh Thakur Jammu and Kashmir and Ladakh HC Bombay HC

 

Ministry of Law and Justice

[Notification dt. 1-6-2022]

Kerala High Court
Appointments & TransfersNews

President appoints S/Shri Justices (1) Murali Purushothaman, (2) Ziyad Rahman Alevakkatt Abdul Rahiman, (3) Karunakaran Babu and (4) Dr Kauser Edappagath, Additional Judges of the Kerala High Court to be Judges of the Kerala High Court with effect from the date they assume charge of their respective offices.

Ministry of Law and justice

[Notification dt. 1-6-2022]

Appointments & TransfersNews

President is pleased to appoint Amit Sharma, to be an Additional Judge of the Delhi High Court, for a period of two years with effect from the date he assumes charge of his office.

President appoints Anish Dayal, to be a Judge of the Delhi High Court.

Ministry of Law and Justice

[Notification dt. 31-5-2022]

 

Appointments & TransfersNews

Supreme Court Collegium has recommended transfer/repatriation of Judges of High Courts, as mentioned below:

S. No.

 Name of the Judge

 

S/Shri Justice

 Present HC

HC where transferred or repatriated
1. Ahsanuddin Amanullah Andhra Pradesh

 

 Patna
2. Chitta Ranjan Dash Orissa Calcutta
3. Subhasis Talapatra Tripura Orissa
4. Lanusungkum Jamir

 

 Manipur Gauhati
5. Dhiraj Singh Thakur

 

 Jammu and Kashmir and Ladakh Bombay
6. Purushaindra Kumar Kaurav

 

 Madhya Pradesh Delhi

Supreme Court Collegium

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. Amazon.com 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 Sahu, 2020 SCC OnLine SC 1039,

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

Read more…

 Pre-litigation Mediation

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

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

Read more…

Segmented Offers by Airtel and Vodafone

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

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

Read more…

Nirbhaya Death Row Convicts 

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

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

Read more…

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

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

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

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

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

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

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

Know thy Judge

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

– Justice Dinesh Maheshwari

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

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

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

As an Advocate

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

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

As a Judge

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

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

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

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

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

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

Notable Judgments – Supreme Court

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.

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

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

Kerala High Court
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

Counsels

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]

Patna High Court
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]