Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a batch of writ petitions filed for directing the State Government to provide similar Pension benefit as granted to the other similarly situated Tripura Government Undertakings, Arindam Lodh, J. has held that the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body, thereby observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government and the court cannot direct the State or its instrumentalities to formulate such policy

The issues in the present matter were, whether the court can direct the State government to provide necessary funds to the corporation, and whether the court can determine the amount of pension an employee may be entitled to.

The Court took note of the report of the expert committee constituted by the State government, wherein it is found that provision of providing pension benefit to these organizations has been made either by adopting the Civil Services (Pension) Rules, 1972 or introducing separate pension scheme. Further, these autonomous bodies had created a separate scheme and had been able to generate their own funds from their own contribution and opened subscriber accounts with specified schemes of the organization like Life Insurance Corporation of India (LICI), banks etc. Moreover, the petitioners have already retired from service, and are drawing pension under Employees Provident Fund scheme.

The Court further noted that the service conditions including pension scheme of the employees of these corporations are governed by their respective statutes, as the corporations are government undertakings. Further, all the corporations are utilizing the funds provided by the State government even to the extent of 100%, and have been running in loss, though, these organizations are supposed to be profit making as observed by the expert committee. Thus, the court held that “the employees of these statutory organizations cannot claim, as a matter of right, the pensionary benefits, as provided to few of the corporations who have been able to generate their own funds with one-time support from the state government”

Furthermore, the Court viewed that the petitioners cannot be treated equally to the employees of those organizations whose pension schemes have been introduced under different schemes with the assistance of some other organizations like LICI, banks, etc., as the pension of the members of the petitioner’s organization is based on the pension scheme subscribed by them during his/her service tenure in the respective organization and are primarily controlled and regulated by the Employees Provident Fund Organisation. Thus, the petitioners cannot complain of discrimination having regard to the equity clause enshrined under Article 14 of the Constitution of India.

Moreover, the Court observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government, the court cannot direct the State or its instrumentalities to formulate certain policy because it would have a scaring effect having huge financial implication, thus, it should be left to the expert committee.

The Court also observed that the grant of pensionary benefit is not a one-time payment and extension of such benefit is a recurring expenditure with continuous liability involving huge government funds. The State Government and the corporation should ultimately take a policy decision as to whether such benefits should be provided to its employees or not, as it is outside the court’s jurisdiction to make an enquiry regarding the fund status of the respective corporation or to choose a scheme suitable to the employees of such corporation without the aid and advice of the expert body.

Moreover, the Court viewed that it is a settled proposition of law that the interference of the judiciary to such a policy matter having serious financial implication and/or having a cascading effect is not at all warranted and justified. Further, it held that “the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body following the well-neigh principle of self-restraint in the matter of policy decisions of the government”. Thus, the Court dismissed the writ petitions.

[All Tripura EPS Pensioners’ and Employees’ Association v. State of Tripura, 2022 SCC OnLine Tri 619, decided on 06.09.2022]


Advocates who appeared in this case:

For Appellant(s): Advocate S. Saha

Advocate S. Datta

For Respondent(s): Advocate KC Bhattacharjee

Advocate B.S. Bhowmik

Advocate S. Bhattacharjee

Advocate AK Pal

Advocate D. Sarkar

Advocate A. Chakraborty

Advocate HC Chakraborty

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJI and Krishna Murari and Hima Kohli, JJ has 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.

In Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, a Constitution bench of this Court held as follows:

“193 We are, therefore, of the view that constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, is under challenge. This would also, allow the two provisions [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on the other.”

The Court observed that this proposition of law laid down by the Constitution bench in Nebam Rebia case, stands on contradictory reasoning, which requires gap filling to uphold the constitutional morality. Hence, this question must be referred to Constitution bench for the requisite gap filling exercise to be conducted.

The Court has, hence, referred the following substantial questions of law relating to the interpretation of the Constitution to the 5-judge Constitution Bench:

  1. Whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by this Court in Nebam Rebia case?
  2. Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the High Courts or the Supreme Court, as the case may be?
  3. Can a Court hold that a member is “deemed” to be disqualified, by virtue of his/her actions, absent a decision by the Speaker?
  4. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?
  5. If the decision of a Speaker that a member has incurred disqualification under the Tenth Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition?
  6. What is the impact of the removal of Paragraph 3 of the Tenth Schedule?
  7. What is the scope of the power of the Speaker to determine the Whip and the leader of the house legislature party? What is the interplay of the same with respect to the provisions of the Tenth Schedule?
  8. Are intra-party decisions amenable to judicial review? What is the scope of the same?
  9. What is the extent of discretion and power of the Governor to invite a person to form the Government, and whether the same is amenable to judicial review?
  10. What is the scope of the powers of the Election Commission of India with respect to determination of a split within a party?

[Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2022 SCC OnLine SC 1062, order dated 23.08.2022]

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: S. M Subramaniam, J. upheld the government order that stated, the Degree of B.Sc (Biochemistry) awarded by all Universities in the State recognized by the University Grants Commission is not equivalent to the Degree of B.Sc in Chemistry for the purpose of employment in the public service. The Court refused to interfere with the opinion of the Equivalence Committee, Personnel and Administrative Reforms Department constituted by the rules in force because when the Committee has made certain recommendations and such recommendations were accepted by the Government and an order was issued, then there is no reason to exercise the powers of judicial review under Article 226 to undo the exercise done by the expert body.

The writ petition was filed to quash a Government Order No. 24 dated 04-02-2011 issued by Personnel and Administrative Reforms Department which declared that degree qualification of B.Sc (Biochemistry) will not be equivalent to B.Sc in Chemistry. This was done in accordance with a report submitted by the Equivalence Committee. This order effected the qualification required for selection to the post of B.T. Assistantcandidates with a degree of B.Sc Chemistry can only apply for the post.

The petitioner are the candidates who studied B.Sc Biochemistry and they contended that they have studied chemistry subject and they have attended classes on par with the candidates who have studied B.Sc in Chemistry.

The Court noted that the impugned order was passed on the recommendation of the Equivalence Committee which is a competent authority to evaluate the syllabus and other aspects of the degrees. The Equivalence Committee examined the syllabus and equivalence between both the degrees, this recommendation was accepted by the Government of Madras.

Thus, the Court, while dismissing the petition, stated that judicial review can be exercised only if any unconstitutionalty or violation of statutory rules are established, and it cannot be exercised to undo a work done by a competent authority.

[S.K. Sujatha v. The State of Tamil Nadu,W.P. No. 23805 of 2014 , decided on 06-07-2022]


Advocates who appeared in this case :

A.R. Suresh, Advocate, for the Petitioner;

M. Bindran for R1, R2 and R4 and C. Kathiravan for R4, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

TATA
Case BriefsHigh Courts

   

Delhi High Court: Dinesh Kumar Sharma, J. denied relief to Swastika Ghosh and Manush Shah (‘Petitioner(s)'), table tennis players who challenged the decision taken by Table Tennis Federation of India regarding the players who will represent India in Commonwealth Games 2022.

The petitioner(s) filed writ of Mandamus directing the Table Tennis Federation of India (‘Respondent 1') to include the petitioners in the list of 4 selected players for the women’s table tennis team for the Commonwealth Games, 2022 as their names have not been included in the final selection list by the Selection Committee and the Committee of Administrator despite fulfilling the selection criteria as laid down by the Federation.

Counsel for petitioner submitted that the process of the selection has not been adopted correctly and the persons who have been included in the list or being proposed to be sent to participate in the commonwealth games are much below in the ranking as compared to the petitioners before the Court.

Counsel for respondent submitted that the names have already been finalized and have been sent to the Indian Olympic Association on 07-06-2022 and now the Indian Olympic Association might have sent the names further and the courts are not an appropriate forum to make the selection of players to participate in the games and it is only for the expert bodies to decide.

The Court observed that it is a settled proposition of law that issuance of a writ is a discretionary remedy, and the court can refuse to exercise its jurisdiction even if the petitioner may have a claim in law.

Reliance was placed on Punjabi University v. UOI, 2011 SCC OnLine Del 3496 wherein it was held that if the power of judicial review were to be extended into matters such as these also, it would adversely affect the sports.

The Court noted that a mere mistake is not sufficient for this Court to exercise powers under Article 226 of Constitution of India. A writ can be issued only when there is something more than a mere error/mistake. The court in its writ jurisdiction can interfere only if its decision is illogical or suffers from procedural impropriety or shocks the conscience of the court in the sense that it is in defiance of logic or moral standards. The court cannot clothe itself with the power to make a choice and should not substitute its decision over a decision of an expert committee. It may be reiterated that the scope of judicial review is limited to the deficiency in decision making process and not the decision.

The Court further opined that the committee of administrators has minutely examined the claim of each of the sports person and passed a detailed order while finalizing the list, which is under challenge. The power of judicial review in the matters relating to sports can be exercised only if there is an allegation of bad faith. The courts do not have any expertise to get into the selection and finalization of players for participation at the international level. This court is conscious of the fact that any such findings can be interfered with only if there is any perversity or arbitrariness in the findings arrived at by the federation concerned.

The Court thus held “Committee of Administrator has weighed different factors and therefore, this court finds itself unable to interfere in exercise of its power of judicial review. This court also finds complete absence of any arbitrariness or malafide in the decision arrived at by the Committee of Administrators.

[Swastika Ghosh v Table Tennis Federation of India, WP (C) No. 9488 of 2022, decided on 20-06-2022]


Advocates who appeared in this case :

Arijit Prasad, Sr. Advocate and Keshav Ahuja, Advocate, for the Petitioner;

Moazzam Khan, Aman Gupta and Brijesh Ujjainwal, Advocates, for TTFI/R-1;

Harshit Jain, Poonam Das, Yashima Sharma and Prakhar Sharma, Advocates, for the Sports Authority of India R-2;

Vineet Dhanda with Sarvan Kumar, Advocates, for UOI;

Deepak Biswas, Shilpa Gamvani and Atmaja Tripathi, Advocates, for R-6;

Ritika Jhurani and Dinesh Sharma, Advocates, for the R-7.


*Arunima Bose, Editorial Assistant has reported this brief

Case BriefsSupreme Court

Supreme Court: In a big relief for A.G. Perarivalan, convicted for assassination of former Prime Minister Rajiv Gandhi, the 3-judge bench of L. Nageswara Rao*, BR Gavai and AS Bopanna, JJ has directed his release after being incarcerated for 32 years.

Release of Perarivalan

Perarivalan was convicted for offences under IPC, the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Wireless Telegraphy Act, 1933 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. He was sentenced to death by the designated TADA Court. The Supreme Court, however, commuted the death sentence to imprisonment for life on 18.02.2014.

Perarivalan’s petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continued to remain pending for over a year since the reference by the Governor. This was the main reason that weighed in with the Supreme Court while ordering his release.

Apart from this, the Court also noticed that Perarivalan was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on the death row and 29 years in solitary confinement. There has been no complaint relating to his conduct in jail. On the two occasions that Perarivalan had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release. Medical records, filed on behalf of Perarivalan, show that he is suffering from chronic ailments. Apart from his good behaviour in jail, Perarivalan has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses.

The Court, hence, held,

“Given that his petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriate to remand the matter for the Governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142 of the Constitution, we direct that the appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The appellant, who is on bail, is set at liberty forthwith.”

Governor’s power to refer a recommendation made by the State Cabinet to the President of India

The advice of the State Cabinet is binding on the Governor in matters relating to commutation / remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor’s power to refer a recommendation made by the State Cabinet to the President of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India. Such action is contrary to the constitutional scheme elaborated above.

In the case at hand, recommendation made by the State Cabinet was on 09.09.2018, which remained pending before the Governor for almost two and a half years without a decision being taken. It was only when the Supreme Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of Perarivalan’s sentence to the President of India.

Hence, being fully conscious of the immunity of the Governor under the Constitution with respect to the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties, the Court observed that non-exercise of the power under Article 161 is not immune from judicial review.

[AG Perarivalan v. State, 2022 SCC OnLine SC 635, decided on 18.05.2022]


*Judgment by: Justice L. Nageswara Rao


For Perarivalan: Senior Advocate Gopal Sankaranarayanan

Case BriefsSupreme Court

Supreme Court: In a significant case relating to State’s power of remission under Section 432 of CrPC, the Division Bench of Dr Dhananjaya Y Chandrachud* and Aniruddha Bose, JJ., directed the presiding officer concerned to re-assess the matter— holding that an opinion accompanied by inadequate reasoning would not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.

The instant petition was filed by a convict—who was undergoing imprisonment for life upon being convicted u/s 302 read with S. 149 of the Penal Code, 1860—to seek for issuance of a writ directing the State government to grant him pre-mature release.

Evidently, on 25-09-2021, the petitioner completed 16 years of imprisonment without remission and submitted an application for premature release under Rule 358 of the Chhattisgarh Prisons Rule 1968. Pursuant to which opinion of the Special Judge, Durg was sought by the government as mandated u/s 432 of the CrPC on whether the petitioner could be released on remission which was answered in negative. Resultantly, the petitioner’s application for remission was rejected by the government.

Judicial Review vis-à-vis Power of Remission

Though the appropriate government has the absolute discretion to decide whether the application for remission should be allowed, it had been clarified by the Supreme Court in catena of judgments that while the grant of remission is the exclusive prerogative of the executive and the court cannot supplant its view, the Court can direct the authorities to re-consider the representation of the convict. Therefore, the prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution.

Hence, the Court concluded that though the Courts cannot usurp the power of the government and grant remission itself, they can review the decision of the government to determine whether it was arbitrary and ask the government to reconsider the matter.

Duty of the Presiding Judge and Value attached to his Opinion

Sub-section (2) of Section 432 of the CrPC provides that the appropriate government may take the opinion of the presiding judge of the court before or by which the person making an application for remission has been convicted on whether the application should be allowed or rejected, together with the reasons for such opinion.

In Union of India v. Sriharan, (2016) 7 SCC 1, the Constitution Bench had held that the procedure stipulated in Section 432(2) is mandatory and the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court. Crucially, the Court observed that the opinion of the presiding judge would enable the government to take the ‘right’ decision as to whether or not the sentence should be remitted.

Hence, the Bench opined that it could not be said that the opinion of the presiding judge is only a relevant factor, which does not have any determinative effect on the application for remission. The Bench remarked,

“Section 432 (2) of the CrPC would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission. It is possible then that the procedure under Section 432 (2) would become a mere formality.”

However, the Bench clarified that the provision does not mean that the appropriate government should mechanically follow the opinion of the presiding judge and held that if the opinion of the presiding judge does not comply with the requirements of Section 432 (2) or if the judge does not consider the relevant factors for grant of remission that had been laid down in Laxman Naskar v. Union of India, (2000) 2 SCC 595, the government may request the presiding judge to consider the matter afresh.

Noticeably, in Laxman Naskar’s case (supra), the Court had laid down following factors to be considered by the presiding officer—assessing (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and (v) the socio-economic condition of the convict’s family.

Factual Analysis and Conclusion

In the instant case, the Special Judge, Durg had referred to the crime for which the petitioner was convicted and had simply stated that—“in view of the facts and circumstances of the case it would not be appropriate to grant remission.”

Hence, the Bench opined that there was nothing to indicate that the presiding judge took into account the factors laid down in Laxman Naskar’s case (supra), which had rendered the opinion to be in the teeth of the provisions of Section 432 (2) of the CrPC which require that the presiding judge’s opinion must be accompanied by reasons. The Bench stated,

“…an opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2) of the CrPC. Further, it will not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.”

In view of the above, the Bench concluded that the petitioner’s application for remission should be re-considered and directed the Special Judge, Durg to provide an opinion on the application afresh accompanied by adequate reasoning while taking into consideration all the relevant factors that govern the grant of remission as laid down in Laxman Naskar’s case (supra).

Additionally, the Bench directed that the Special Judge, Durg must provide his opinion within a month and the State of Chhattisgarh must take a final decision on the petitioner’s application for remission afresh within a month of receiving the opinion of the Special Judge, Durg.

[Ram Chander v. State of Chhattisgarh, 2022 SCC OnLine SC 500, decided on 22-04-2022]


*Judgment by: Justice Dr Dhananjaya Y Chandrachud


Appearance by:

For the Petitioner: Advocate MD Irshad Hanif

For the State of Chhattisgarh: Advocate Sumeer Sodhi


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: In a case where the Karnataka High Court had reversed the judgment of Karnataka Administrative Tribunal directing compulsory retirement of a Government Servant after being found guilty of bribery, the bench of Dr. DY Chandrachud* and Surya Kant, JJ has held that acquittal of a person in the course of the criminal trial does not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

Factual Background

  • The respondent, working as a Village Accountant at Revathagao in Indi Taluka of Bijapur District in Karnataka, was charged for demanding a bribe for deleting the name of a person from Column No. 11 of the RTC with regard to land bearing Survey No. 54, situated at Shirdona Village.
  • A criminal complaint was registered with the Lokayukta police against the respondent for the commission of an offence punishable under Sections 7 and 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act 1988.
  • After the investigation, a charge sheet was submitted against the respondent by the Lokayukta police in Special Case No. 20 of 2011 in the Court of Special Judge at Bijapur, who gave the benefit of doubt to the respondent and acquitted him of all charges.
  • A disciplinary enquiry was initiated under Section 7(2) of the Karnataka Lokayukta Act 1984 and the Lokayukta held that the charge against the respondent was proved and recommended the penalty of compulsory retirement from service.
  • The disciplinary authority held that the misconduct was proved and imposed a penalty of compulsory retirement.
  • Aggrieved by the penalty, the respondent moved the Karnataka Administrative Tribunal. The Tribunal upheld the order of compulsory retirement.
  • The Karnataka High Court set aside the judgment of the Tribunal.

Disciplinary enquiry vis-à-vis Criminal Trial

The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.

Scope of Judicial Review

In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

  • the rules of natural justice have been complied with;
  • the finding of misconduct is based on some evidence;
  • the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
  • whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct.

Ruling

The Court observed that none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority were held to be sustainable with reference to the evidence which was adduced during the enquiry. Hence, the acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding.

[State of Karnataka v. Umesh, 2022 SCC OnLine SC 345, decided on 22.03.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For appellant: Advocate V N Raghupathy

For Respondent: Advocate Ashwin V Kotemath

Case BriefsHigh Courts

Delhi High Court: The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., held that the Chairman of Central Administrative Tribunal has been conferred the power to transfer a matter from one Bench to another, on his own motion, without any application from any party.

Petitioner filed the present petition assailing the order of Central Administrative Tribunal and sought a direction that Original Application filed by the petitioner be heard and disposed of by the Tribunal, Kolkata Bench.

Factual Matrix


Petitioner had joined AS in 1987 and was allocated the West Bengal cadre, in 2021 he was superannuated and at that time was working as the Chief Secretary of the State of West Bengal.

On May 26th, a cyclone named ‘YAAS’ had hit parts of West Bengal and Odisha and on 31st May, a Show Cause Notice was issued by the Ministry of Home Affairs to the petitioner for abstaining himself from a crucial review meeting chaired by the Prime minister for assessing loss of life and property and damage to the infrastructure caused by the cyclonic storm.

In June, 2021 a major penalty charge sheet was also issued to the petitioner by the respondents for not attending the aforesaid meeting, as well as for not apprising the Prime Minister about the hardships and sufferings faced by the people of West Bengal amongst other allegations mentioned in the statement of Articles of Charges and imputation of the alleged misconduct or misbehavior.

When the hearing notice arrived, the petitioner filed an application under Section 19 of the Administrative Tribunal Act, 1985 challenging the charge sheet. During the pendency of OA respondents filed a transfer petition before the Tribunal under Section 25 of the Administrative Tribunal Act, 1985 Act seeking transfer of the OA filed by the petitioner.

Transfer petition was allowed, and the order was challenged by the petitioner before the Calcutta High Court. Principal Bench of the Tribunal issued a notice and the was accepted on behalf of the respondents, later the Calcutta High Court allowed the petition filed by the petitioner and set aside the Tribunal’s Order passed in Transfer Petition.

The above judgment of the Calcutta High Court was challenged on the ground that the said Court lacked territorial jurisdiction to entertain the challenge, later Supreme Court had allowed the Calcutta High Court’s decision.

Since the Supreme Court had given liberty to the petitioner to assail the Principal Bench order in the Transfer Petition before Jurisdictional High Court, the petitioner approached this, Court.

Analysis, Law and Decision


Firstly, the High Court expressed that under Section 25 of the 1985 Act, the Chairman can on his own motion, without any notice, transfer any case pending before one Bench for disposal to another Bench.

Further, since the cause of action arose in New Delhi, no error could be found with the impugned order.

Rule 6(2) of 1987 Rules gives an option to the applicant who has ceased to be in service, to file an application before a Bench, within whose jurisdiction such person is ordinarily residing at the time of filing of the application.

The question that arose in the present matter:

Whether the above-stated right of an applicant can control or regulate the administrative powers of a Chairman under Section 25 of the 1985 Act?

High Court answered it in negative.

The Bench agreed with the argument of My Tushar Mehta, Solicitor General that the power of a Chairman of CAT under Section 25 of the 1985 Act is purely an administrative power to transfer cases from one Bench to another, which can be exercised on an application by any party or even on his own motion in a given case and where the facts and circumstances so warrant.

High Court held that it may not be wrong to hold that the administrative powers are akin to the power of the Master of Roster, who alone has the prerogative to constitute the Benches and allocate cases.

Hence for the present matter, Court stated that, while the petitioner has the option to approach the Bench at a place where he was ordinarily residing at the time of filing the application, however, the Chairman of the Tribunal has the administrative powers to transfer the matter to another Bench, albeit for sound reasons and after notice to and hearing the parties to the lis.

The scope of judicial review of an administrative decision is extremely limited and can only be exercised to scrutinize the decision-making process.

High Court found no infirmity in the exercise of the administrative power, either on the procedural aspects or on the merits.

Being purely an administrative power of the Chairman, it is not for this Court to substitute its decision or wisdom for that of the Chairman as no illegality, arbitrariness or infirmity has been found in the decision making process.

In view of the above. The petition was dismissed. [Alapan Bandyopadhyay v. Union of India, 2022 SCC OnLine Del 683, decided on 7-3-2022]


Advocates before the Court:

For the Petitioner:

Mr Karthikey Bhatt, Advocate

For the Respondents:

Mr Tushar Mehta, Solicitor General along with Mr Vikramjeet Banerjee Additional Solicitor General with Mr Kirtiman Singh, Central Government Standing Counsel with Mr Waize Ali Noor, Mr Taha Yasin and Ms Srirupa Nag Advocates for UOI.

Case BriefsSupreme Court

Supreme Court: In a breather to the candidates challenging the RAS Pre-examination result, the bench of KM Joseph and Hrishikesh Roy, JJ has confirmed the Rajasthan High Court’s division bench directing Rajasthan Public Service Commission (RPSC) to go ahead with the RAS/RTS Combined Competitive Examination-2021 mains examination. It has, however, allowed the 243 candidates, who had approached the Courts, to sit in the Mains Examination to be conducted on March 20-21, 2022.

The Controversy

243 candidates, who had failed to secure position in the list of candidates eligible to appear in the mains examination of RAS/RTS Combined Competitive Examination-2021 had approached the Single Bench of the Rajasthan High Court. It was the case of the candidates that as per the answer key published by the RPSC, some of the answers were marked wrong in the key and hence, it had affected their result.

Single Bench’s order

Mahendar Kumar Goyal J. partly allowed the writ petitions and quashed the final answer key dated 22-11-2021 and result dated 19-11-2021. The RPSC was directed to revise the result of the preliminary examination and to prepare a fresh list of candidates eligible to appear in the mains examination accordingly. This order dated February 22, 2022, came 3 days before the Main Examination was originally scheduled to take place i.e. February 25-26, 2022, not leaving much choice with the RPSC but to reschedule the examination.

Division Bench’s order

The Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned Single Bench order and left it open for RPSC to conduct a written main examination on the rescheduled date.

Noticing that generally the scope of judicial review against expert’s opinion is extremely limited, the Court observed,

“We have strong prima facie belief that the learned Judge had exceeded the scope of writ jurisdiction in the present case. No legal or factual malafides are demonstrated nor procedural illegality established. It may be that in some cases there is a grey area. That by itself would not be sufficient for the writ court to upturn the decision of the expert’s body.”

Hence, the RPSC had made out a strong prima facie case not only for further hearing of the appeals but also for staying the judgment of the Single Judge.

Supreme Court’s order

The Court refused to interfere with the Division Bench’s order noticing in particular that the order is one granting interlocutory relief and the main matter is pending adjudication.

RPSC had submitted before the Court that the 243 persons before the learned Single Judge in the High Court including the petitioners before this Court can be permitted to participate in the main examination subject to certain safeguards.

The Court, hence, directed that the petitioners in both these cases and also the rest of the persons who approached the Single Judge shall be permitted to sit in the Mains examination to take place on 20th and 21st March, 2022.

The Court, however, made clear that it will be subject to the result of the appeals pending adjudication before the High Court.

“The result of this group shall be kept in a sealed cover and a further decision in regard to them will abide by the result of the appeals before the High Court.”

The Court, hence, directed RPSC to take necessary steps for facilitating the participation of the 243 candidates.

[Ankit Sharma v. Rajasthan Public Service Commission, Special Leave to Appeal (C) Nos. 4270-4271/2022, order dated 14.03.2022]


Counsels

For Candidates: Senior Advocate Guru Krishna Kumar

For RPSC: Senior Advocates Dr. A. M. Singhvi and V. Giri


Also Read:

Raj HC | It would be open for RPSC to conduct written main examination on the rescheduled date, Single Judge bench order stayed

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned judgment and left it open for RPSC to conduct a written main examination on the rescheduled date.

Being dissatisfied with the answer key published by the respondent-Rajasthan Public Service Commission i.e. the RPSC’, this batch of writ petitions was filed by the candidates who have failed to secure position in the list of candidates eligible to appear in the mains examination of RAS/RTS Combined Competitive Examination-2021. Mahendar Kumar Goyal J. partly allowed the writ petitions and quashed the final answer key dated 22-11-2021 and result dated 19-11-2021. The RPSC was directed to revise the result of the preliminary examination and to prepare a fresh list of candidates eligible to appear in the mains examination accordingly. The instant appeal arise out of this impugned judgment of Single Judge dated 22-02-2022.

Counsel for petitioners submitted that the Single Judge has examined all the concerned questions carefully and when it was found that the decision of RPSC was wholly incorrect, interference was made. In majority of the cases the direction is only for reconsideration by the experts committee.  originally the written main examination was scheduled on 25.02.2022 and 26.02.2022 however in view of the decision of the learned Single Judge the same has been cancelled and would be rescheduled for later.

Counsel for respondents submitted that the Single Judge has committed serious error in interfering with the decision of the experts body. RPSC had entertained all objections and examined the same carefully before coming to its final conclusions. Whenever it was found necessary experts committees were formed. In cases where the questions were found to be ambiguous or no clear cut single answer was correct the RPSC decided to delete the question to avoid any injustice. In some cases even the correct answer was changed  accepting the objections of the candidates. Once this exercise is completed, the scope of judicial review is extremely limited. Unless the decision of the experts body such as RPSC is tainted with malafides or suffers from material procedural irregularity or is totally irrational, no intereference is demanded from the Courts.

The Court relied on the judgment of Uttar Pradesh Public Service Commission v. Rahul Singh, (2018) 7 SCC 254 and observed that not only the onus is on the candidates to demonstrate that the key answer is incorrect, but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong.

The court stated that broadly the approach in such situation is that the scope of judicial review against expert’s opinion is extremely limited. There is a requirement of finality to the process of public employment. This is not to suggest that judicial review is completely shutout; it cannot be. However unless the situation presents a clear cut, black and white, open and shut choice of the decision of the expert body being palpably wrong, the Court would not interfere. An element of tolerance to the minor error or calibration is discernible since achieving certainty and finality is also important. The finality and perfection are sworn enemies.

The Court observed “we have strong prima facie belief that the learned Judge had exceeded the scope of writ jurisdiction in the present case. No legal or factual malafides are demonstrated nor procedural illegality established. It may be that in some cases there is a grey area. That by itself would not be sufficient for the writ court to upturn the decision of the expert’s body.”

The Court held “we find that the appellants have made out a strong prima facie case not only for further hearing of the appeals but also for staying the judgment of the learned Single Judge. Under the circumstances impugned judgment is stayed. Resultantly it would be open for RPSC to conduct written main examination on the rescheduled date.” [RPSC v. Ankit Sharma, D.B. Special Appeal Writ No. 429/2022, decided on 23-02-2022]


Appearances

For Appellant(s) : Mr. M.S. Singhvi, Mr. Sheetanshu Sharma, Mr. Siddhant Jain, Mr. Yash Joshi and Mr. Pranav Bhansali, Mr. M.F. Baig and Mr. Amit Lubhaya

For Respondent(s): Mr. R.N. Mathur, Mr. Shovit Jhajharia, Mr. Raghunandan Sharma with Mr. Abhinav Srivastava, Mr. Ram Pratap Saini

Case BriefsHigh Courts

Delhi High Court: The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., dismisses Dr Subramanian Swamy’s plea stating that any delay in the process of disinvestment of Air India would cause loss to public exchequer, besides creating uncertainty amongst the existing employees.

Factual Matrix

The process of disinvestment of Air India and its subsidiaries commenced in June, 2017 with the in-principle approval of the Cabinet Committee on Economic Affairs. A policy decision to disinvest was taken after following the transparent procedure through multi-layered decision making, involving Inter-Ministerial Group, Core Group of Secretaries on Disinvestment and the empowered Air India Specific Alternative Mechanism at the apex Ministerial level, with support for the entire process from reputed Transaction Adviser, Legal Adviser and Asset Valuer.

Advertisements inviting bids mentioned that the Government would cease to be responsible for loss after the date of disinvestment.

Submissions of Dr Subramanian Swamy (Petitioner)

He submitted that the Air India Disinvestment process was arbitrary, unconstitutional, unfair, discriminatory and unreasonable and the same could not be sustained in law. The said process also violated Article 14 of the Constitution of India as well as against the interest of national integrity and security due to an ongoing investigation against Air Asia (India) Private Limited.

Further, it was urged that since there were only two financial bids, out of which one bidder was the Consortium led by Mr Ajay Singh, effectively the bidding process was a mere sham only to fulfil the technical requirement of there being more than one bidder. It was obvious that the whole process was collusive and tailor-made to facilitate Respondent 6 acquiring Air India.

Adding to the above submissions, the petitioner repeatedly stated that he was aggrieved by the methodology of valuation, which according to him was arbitrary, corrupt, illegal and against the public interest.

Hence, the petitioner sought a direction for quashing the Air India disinvestment process as also directing CBI to investigate the role and functioning of the official respondents, involved in the disinvestment process.

Mr Harish Salve, Senior Counsel on behalf of respondent 6 urged that the present petition was a challenge to a policy decision taken almost five years ago and was highly belated.

Decision

High Court found no reason to entertain the present Public Interest litigation for the following facts and reasons:

  • Neither Tata Sons Private Limited nor Respondent 6 are facing any criminal proceedings in relation to the subject matter of WP (C) 5909 of 2013 or in any other matter. Both Respondent 6, as well as Tata Sons Limited, are Indian entities and therefore, no question arises of violation of Foreign Direct Investment Policy, in any event. Moreover, AirAsia (India) Private Limited has no interest in M/s Talace Private Limited, who is the highest bidder.
  • No charge sheet had been filed in any criminal proceedings against Air Asia (India) Private Limited or Talace Private Limited or Tata Sons Limited, as on date, in the matter pertaining to Air Asia and accordingly, no ground for disqualification of respondent 6 was made out.
  • Since SpiceJet Limited was not a member of the Consortium, thus any proceedings pending against SpiceJet Limited will be of no consequence and would not result in disqualification of the Consortium, having Mr Ajay Singh, as the lead member. There was no material on record which would support the allegations of the petitioner that respondent 6 colluded with Mr Ajay Singh’s Consortium or was aware of the Consortium’s bidding strategy.
  • Methodology of Valuation: In the light of the excessive debt and other liabilities of Air India, arising out of huge accumulated losses, the bidding construct was revised in October, 2020, to allow the prospective bidders an opportunity to resize the balance sheet and increase chances of receiving bids and competition.

The apprehension of the Petitioner was based upon a news report in one of the newspapers that the Government sought Parliament’s nod to infuse over Rs 62,000 crores to its Company that holds Air India’s debt, liabilities and some non-core assets, whereas in October, 2021, Department of Investment and Public Asset Management (“DIPAM”) Secretary had stated that net liability on Government after Air India’s privatization amounted to Rs 28,844 crores.

Mr Harish Salve, Senior Counsel had clearly brought out the exact import of the said article. The article was self-explanatory and indicated the balance amounts due, including interest liabilities towards working capital and aircraft loans, lease rentals, owing to the oil companies and to the Airports Authority of India and did not read in the manner sought to be read by the Petitioner. Thus, there was no substance in these allegations.

  • Lastly, the submission that Air India was a profitable enterprise until 2004 should not have been privatized, the same did not appeal to this Court and was not even germane to the issue in question.

The process of disinvestment of Air India was a policy decision by the Central Government, taken after due deliberations, at various levels and was not open to interference in judicial review by this Court, exercising jurisdiction under Article 226 of the Constitution of India.

High Court found merit in the submission of respondents 1 to 4 that each day, approximately Rs 20 crores are being invested to run the Airline by the Government. The successful bidder needs to invest huge capital to infuse new life into the concerned Airline.

Respondents 1 to 4 have been working towards closing of the disinvestment process, at the earliest and any further delay shall cause loss to the public exchequer, besides creating uncertainty amongst the existing employees, with regard to their future prospects and it needs no gainsaying that public interest shall be adversely affected.

Therefore, in view of the above discussion, the petition was dismissed. [Dr Subramanian Swamy v. Union of India, 2022 SCC OnLine Del 34, decided on 6-1-2022]


Advocates before the Court:

For the Petitioner:

Dr Subramanian Swamy, Petitioner-in- Person with Ms Ramni Taneja, Mr Satya Sabharwal and Mr Vishesh Kanodia, Advocates

For the Respondents:

Mr Tushar Mehta, Solicitor General with Mr Chetan Sharma, Additional Solicitor General, Mr Amit Mahajan, Central Government Standing Counsel, Mr Dhruv Pande, Ms Amita Gupta Katragadda, Ms Preksha Malik, Mr Kaustubh Rai and Ms Isha Chaudhary, for Respondents 1 to 4.

Mr Nikhil Goel, Special Public Prosecutor for Respondent 5.

Mr Harish Salve, Senior Advocate with Ms Anuradha Dutt, Mr Lynn Pereira, Ms Feresthe Sethna, Mr Haaris Fazili and Mr Kunal Dutt, Advocates for Respondent 6.

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In spite of going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court. The Constitution Bench comprising of A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1. Among the issues which arose for decision, the Court had to answer two critical questions:

  • Whether the decision of the Speaker of the House of People under Article 110(3) of the Constitution, to certify a bill as a ‘Money Bill’ under Article 110(1) is final and binding, or can be subject to judicial review; and
  • If the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 had been correctly certified as a ‘Money Bill’ under Article 110(1) of the Constitution?

The circumstances giving rise to the instant review petition were that the issue whether judicial review can be exercised over a decision of the Speaker of the House of People under Article 110(3), arose subsequently before another Constitution Bench in Rojer Mathew v South Indian Bank Ltd., (2020) 6 SCC 1, wherein the majority opinion noted that the first question was not adequately answered in the Puttaswamy (Aadhaar-5J.) case and It also noted its doubts on the determination of the second question, consequently, the majority referred the matter to the larger Bench for consideration.

Majority Verdict

On the first question, the majority stated that judicial review of whether a Bill is a ‘Money Bill’ would be admissible under certain circumstances having regard to the law laid down by this Court. While answering the second question, the majority held that Section 7 of the Aadhaar Act had elements of a ‘Money Bill’, and the other provisions were incidental to the ‘core’ of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a ‘Money Bill’ under Article 110(1).

Therefore, opining that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review of a final judgment; the majority held that there was no case for review of Aadhar verdict.

Dissenting View

Maintaining his dissent from the majority like the final verdict on the issue, D.Y. Chandrachud, J., once again expressed his dissent from the majority by observing that the analysis of the majority opinion in Puttaswamy (Aadhaar-5J.) in relation to the second question, i.e., whether the Aadhaar Act was a ‘Money Bill’ under Article 110 had been doubted by a coordinate bench in Rojer Mathew, when the first question was referred to a larger bench. Since the larger bench has not been constituted, and is yet to make a determination, Justice Chandrachud stated,

“Dismissing the present batch of review petitions at this stage – a course of action adopted by the majority – would place a seal of finality on the issues in the present case, without the Court having the benefit of the larger bench’s consideration of the very issues which arise before us.”

In Rojer Mathew’s case, another Constitution Bench had expressed,

“116. Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum…did not substantially discuss the effect of the word “only” in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Articles 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court’s satisfaction of the said provisions being incidental to Articles 110(1)(a) to (f), it has been argued, is not convincingly reasoned, as might not be in accord with the bicameral parliamentary system envisaged under our constitutional scheme.”

Calling it a constitutional error to hold at this stage that no ground exists to review the judgment, Justice Chandrachud opined that the larger bench’s determination would have an undeniable impact on the validity of the reasons expressed in Puttaswamy (Aadhaar-5J.), on the constitutional issues pertaining to and arising out of the certification by the Speaker of the House of People.

Further on the issue that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review against a final judgment, Justice Chandrachud differentiated between a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently as the instant review petitions had all been filed before the judgment in Rojer Mathew was delivered and opined that there is a strong reason for not to dismiss them pending the decision of the larger bench, especially in light of the adverse consequences highlighted above.

Conclusion

In view of the above, the review petitions were dismissed.

[Beghar Foundation v. K.S. Puttaswamy, (2021) 3 SCC 1, decided on 11-01-2021]


Kamini Sharma, Editorial Assistant has put together this report


Appearance by:

For the Petitioners: M. T. George, Advocate

Case BriefsHigh Courts

Delhi High Court: Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Earlier the petition was moved before this Court, when a notice was issued to the respondents and the principal prayers was directed against the decision of the Central Administrative Tribunal.

It was noted that CAT had allowed the Original Application and set aside the order passed by the State of West Bengal, whereby the petitioner’s request for inter-cadre transfer on the ground of marriage to another officer who also belonged to All India Services was declined; the petitioner was dissatisfied with the outcome.

Petitioner’s dissatisfaction stemmed from the fact that the Tribunal, after setting aside the order had remanded the matter, whereas the relief that she was looking or was, the issuance of a direction to the State of West Bengal to communicate it’s no objection to the Government of India, DoPT concerning her request for inter-cadre transfer.

The above stated impelled the petitioner to approach the Court, against the order of the Tribunal.

In the instant matter, petitioner sought a change in her cadre from West Bengal to Tamil Nadu.

Analysis, Law and Decision

High Court noted that the State of West Bengal declined the petitioner’s request for issuance of no objection consistently on the ground of shortage of officers, both before and after the coronavirus pandemic afflicted the residents of the country, even though, in many cases, no objection was granted.

Court did not accept the above-stated reason of the State of West Bengal as the inter-cadre transfers did take place qua officers belonging to AIS during the referred time.

Elaborating further, Bench stated that apart from trotting out a vague reason that there was a shortage of officers, nothing was placed on record which would persuade the Court to accept the State of West Bengal’s stand regarding shortage of officers.

Analyzing the issue further, Court added that it was evident upon a plain reading of Rule 5 (2) of the 1954 Cadre Rules that, the inter-cadre transfer cannot take place without the concurrence of the State Government concerned to whom the officer was attached.

Given the federal structure of governance, one cannot gainsay that the view of the transferor State Government, with whom the officer is encadred, is to be given its due weight.

“…refusal of the request made for inter-cadre transfer by an officer on the ground of marriage can only be sustained if it is backed by cogent reasons—as such a decision is subject to judicial review.”

Bench found much weight in the petitioner’s contention that her request for facilitating inter-cadre transfer was declined without a cogent reason.

Another contention of the petitioner, which the Bench found to have a lot of weight was that the denial of her inter-cadre transfer resulted in an infraction of her right to family life.

High Court further expressed that, 

Article 8(1) of the Convention discloses that every individual has the right to insist that the State respects her/his private and family life, home and correspondence. 

Referring to the decision of House of Lords in the matter of Huang (FC) v. Secretary of State for the Home Department [(2007) UKHL 11], Bench observed that the observations in the said case explain the scope of the expression “family life”.

Court opined that, when the State unreasonably denies a request of an employee seeking inter-cadre transfer, it impinges upon such person’s right to demand respect for her/his family life.

In view of the above discussion, Court directed the State of West Bengal to issue a no-objection directive qua the petitioner to enable effectuation of her request for inter-cadre transfer. Further, Respondent 1 to act on the said no objection, and accordingly, effect the inter-cadre transfer of the petitioner from the State of West Bengal to the State of Tamil Nadu. [Lakshmi Bhavya Tanneeru v. Union of India, 2021 SCC OnLine Del 4994, decided on 16-11-2021]


Advocates before the Court:

For the Petitioner:

Mr Anwesh Madhukar, Ms Prachi Nirwan and Ms Tanima Gaur, Advs.

For the Respondents:

Ms Bharathi Raju, CGSC for R-1.

Ms Madhumita Bhattacharjee, Adv. for R-2.

Op EdsOP. ED.

A. Introduction: Treatment of personal law by the Colonial Courts

This article analyses the primacy of the Constitution of India vis-à-vis personal laws. To analyse this subject, the article has studied the treatment of personal laws by the courts of law over the years.

In order to develop some context, it would be pertinent to discuss the jurisprudence in relation to judicial review of personal law during the colonial era. It is relevant to note that with respect to personal law, the policy of the colonial courts was to govern the aspects of personal law according to local institutions/law of Hindus.[1] The said policy traces back to Warren Hastings’s Judicial Plan of 1772, which established that either community (Hindus or Muslims) was to be governed by its personal law in matters of inheritance, marriage, religious usage and institutions.[2]

Moving on, two cases from colonial era have been discussed to understand the application of personal law by colonial courts.

In one such case dealt by the Calcutta High Court in 1913, the issue revolved around the inheritance rights of a Shudra[3] ascetic.[4] The plaintiff in this case, who had filed a suit for possession, pleaded that he had purchased the property from a person A, who in turn had purchased it from another person B (who had had renounced all connection with worldly affairs and had become an ascetic).[5] The learned trial court held that since B had renounced the world, he was excluded from inheritance and had no title to the property which he sold. The learned trial court further held that since B had no lawful title to the property, he could not have sold the same to A (who sold it to the plaintiff) and hence dismissed the plaintiff’s suit for possession.[6]

The plaintiff decided to prefer a second appeal and the matter reached the Division Bench of the High Court of Calcutta. The High Court of Calcutta held that the trial court erred in its reasoning, as the principle, under Hindu personal law, of excluding a person from inheritance once he becomes an ascetic does not apply to a Shudra:

[A]ll authorities necessarily and clearly imply that a Sudra cannot enter the order of jati or sanyasi and that, therefore, a Sudra who becomes an ascetic is not excluded from inheritance to his family estate unless some usage is proved to the contrary….We are of opinion that the Hindu texts applicable to the disinheritance of ascetics do not apply to Sudras and, therefore, have no application in this case.[7]

Therefore, the Calcutta High Court held that, as per Hindu texts, a Shudra cannot enter the order of sanyasis, and hence consequently, it cannot be held B had renounced the world. This decision was based on the text of Hindu scriptures (personal law).

Moving on, in the second case[8], the plaintiff filed a suit for recovery of possession of certain properties (one of them being the Pandharinath Temple, situated at Chandansar in  Thane District of Bombay) by virtue of his title as Guru Bandhu (spiritual heir) of one Onkardas.[9] The chain of title had devolved in the following manner: (1) Pandharinath temple was gifted by one Tulsidas in his will to Onkardas (a Shudra);[10] (2) since Onkardas had no son, the property came to the management of his widow after his death, who allegedly disposed of a considerable portion of it;[11] and (3) the plaintiff set up an independent title to those properties on the basis that he was the Guru Bandhu (spiritual heir) of Onkardas, and, therefore, was entitled to succeed to the property.[12]

As per the law of inheritance governing ascetics in the Hindu scriptures, the property belonging to an ascetic devolved upon his spiritual heir. Therefore, if it were proved that Onkardas had become an ascetic prior to his death, the plaintiff would have succeeded in his claim as he was the spiritual heir to Onkardas.

However, noting that Onkardas was a Shudra, the Bombay High Court agreed with the position of law that as per Hindu scriptures, a Shudra could not enter the order of Yathi or Sanyasi; and hence, the devolution of property left by a deceased Shudra ascetic would be regulated by the ordinary law of inheritance, and not by the law of inheritance governing ascetics (unless a custom is proved to the contrary).[13]

Therefore, as far as the colonial courts were concerned, Shudras could not join the order of ascetics since it was an established position of law that citizens would be governed by their respective personal laws. In both the cases discussed above, the ascetics concerned were Shudras by birth and their rights were decided based on their status acquired by birth. By way of background, it is pertinent to note that the Hindu personal law largely prescribed different rules for members of different castes.

The rule of law was different for the three “twice-born varnas”[14] as compared to Shudras.[15] However, since the British had adopted the policy of non-interference in social and religious matters, no efforts were made by them to reform such discriminatory practices. The 1827 Bombay Regulations framed by the British clearly provided that the internal economy of a caste is not to be interfered with by the courts and the jurisdiction of civil courts over such questions was barred.[16] This policy was, with passage of time, extended throughout British India by the Civil Procedure Code in 1859.[17]

B. Constitution of Independent India – Do courts have the authority to judicially review religious scriptures

Did the aforesaid position taken by the colonial courts change after independence? Does the Constitution of independent India give courts the power to review personal law? The answer to this question has a huge bearing on the civil rights of different classes of citizens who may be discriminated under the tenets of personal law.

The issue whether personal law can be reviewed by a court of law cropped up in independent India in 1951 when a suit was filed by a Shudra sanyasi to recover the possession of a math[18] property in the capacity of being a mahant[19] of the said math property.[20]

As per the pleadings in the plaint, a certain Swami Sarupanand had set up a math in Banaras. Accordingly, the building in which the Swami stayed and other buildings and land adjacent thereto became part of the math property. On Swami Sarupanand’s death, Swami Atmavivekanand, the chief disciple of Swami Sarupanand became the mahant and, on the demise of the latter, the plaintiff, who was his chief disciple, became the mahant having been nominated to be the successor by Swami Atmavivekanand himself.[21]

The said position was vehemently opposed by Swami Atmavivekanand’s son as he claimed that the property in question was the private property of Swami Atmavivekanand, and not math property. In addition to the said defence, it was contended by the defendants that the plaintiff was a Shudra and hence, not entitled to become a sanyasi (which is a prerequisite to become mahant of a math).[22]

The matter reached the Allahabad High Court on appeal. It was held by the Allahabad High Court that the strict rule enjoined under the Hindu scriptures, as a result of which Shudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid after independence because of the fundamental rights guaranteed under Part III of the Constitution[23] (for example right to equality and right to not be discriminated based on birth).[24]

It was a revolutionary finding that marked a clear departure from the theory of non-interference followed during the colonial times with respect to matters governed by personal law. It was specifically held by the Allahabad High Court that any discrimination by virtue of birth in a particular caste stood abolished in light of enactment of the chapter on fundamental rights under Part III of the Indian Constitution.[25]

However, the aforesaid finding was overruled by a two-Judge Bench of the Supreme Court by stating that Part III of the Constitution does not govern aspects of personal law and the Allahabad High Court ought to have “enforced the law as derived from recognised and authoritative sources of Hindu law i.e. Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or abrogated by statute”.[26] However, in the peculiar facts of the case, the Supreme Court held that the plaintiff was entitled to become an ascetic/sanyasi according to the usage or custom of the particular sect or fraternity.[27]

A more detailed reasoning on this legal proposition whether personal law needs to adhere with the chapter on fundamental rights (Part III) was given by the Bombay High Court in State of Bombay v. Narasu Appa Mali[28].

Before the reasoning given in Narasu Appa Mali[29] is analysed, it must be noted that under the Constitution of independent India, only those laws can be struck down as being violative of the chapter on fundamental rights, which are covered within the definition of “laws” given in Article 13 of the Indian Constitution. Therefore, it would be helpful to first go through the bare text of Article 13:

13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b)“laws in force” includes laws passed or made by legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.[30]

(emphasis added)

Moving on, in Narasu Appa Mali[31], the Division Bench of the Bombay High Court held that personal laws are not susceptible to the Chapter on Fundamental Rights (Part III) for the following reasons:

I. Narasu Appa case – Chagla, J.’s reasoning

  1. Personal laws do not fall within the definition of “law” as defined in Article 13(3)(a)[32]. The contention that a personal law falls within the scope of a“custom or usage” is erroneous as a “custom or usage” is a deviation from personal law and not personal law itself. Hindu scriptures form the personal law and customs are deviations recognised from such scriptures.[33]
  2. In the definition of law in Article 13 – the expression “custom or usage” has been used while the term “personal law has been deliberately omitted.[34]
  3. If Hindu personal law became void by reason of Article 13, then it was unnecessary specifically to provide in Articles 17[35] and 25(2)(b)[36] for certain aspects of Hindu personal law which contravened Articles 14[37] and 15[38]. This clearly shows that only in certain respects has the Constitution dealt with personal law.[39] (Chagla, J. defined untouchability as an aspect of personal law whereas Gajendragadkar, J. defined untouchability as an aspect of custom.)
  4. Constitution drafters recognised and were aware about existence of separate personal laws but still chose to leave it unaffected and left the job to legislature to modify the personal law with time and to ultimately achieve the ideal of a common uniform civil code.[40]

II. Narasu Appa case – Gajendragadkar, J.’s reasoning

  1. Personal laws are not “laws in force” under Articles 13 of the Constitution as only statutory laws are covered within the scope of “laws in force”. Though personal laws are in force in a general sense; the expression ‘laws in force’ is not used in general sense and is intended to apply to statutory law only.[41]
  2. Secondly, the definition of “laws” [given in Article 13(3)(a)] does not apply to “laws in force”[given in Article 13(3)(b)]. The definition of “laws” will apply to prospective laws whereas the definition of “laws in force” will apply to existing laws. Personal laws, being existing laws, will be covered by the definition of “laws in force” only which does not include “customs” or “usages” within its scope.[42] (Chagla, J. gave a contrary opinion on this point and accepted that the definition of “laws” will apply to “laws in force” as well.)
  3. If “laws in force” included customs and usages, then it was unnecessary specifically to provide in Article 17 that untouchability is abolished, since untouchability is a social custom which would have stood automatically abrogated if “laws in force” includes customs.[43]
  4. Irrespective of the aforesaid reasoning, personal laws cannot be categorised as “customs” or “usages” as customs are only permitted departures from the general rules of Hindu law, and not personal law themselves. Therefore, both the Hindu and the Mohammadan Laws are not “laws in force” within the meaning of Article 13.[44]

The next section discusses the aforesaid reasoning based on debates in the Constituent Assembly and Drafting Committee during the drafting of the Constitution of India. It is a settled position of law that parliamentary material or Constituent Assembly Debates can be looked at for the purpose of ascertaining what was the object which the Constitution-makers had in view and what was the purpose which they intended to achieve.[45]

III. Drafting history of Article 13: Scope of “laws in force” and “laws”

It must be noted that the Constituent Assembly had begun its task of framing the Constitution of India in December 1946. After the first session of the Constituent Assembly, several committees were formed to prepare reports on various aspects of the Constitution. One of the said committees was the Advisory Committee on Fundamental Rights and Minority Rights. The said Committee was further divided into the Sub-Committee on Fundamental Rights and the Sub-Committee on Minority Rights.

The first step in the genesis of the chapter on fundamental rights was the draft produced by the Sub-Committee on Fundamental Rights. Three members of the said sub-committee, Dr B.R. Ambedkar, Mr K.M. Munshi, and Mr Harnam Singh, had provided their respective drafts of bill of rights for consideration by the sub-committee.[46]The sub-committee decided to use Mr K.M. Munshi’s draft as the base draft and examine it in conjunction with other drafts.[47]It will be worthwhile to first reproduce the original Clause 4 of Article 1 (which finally took the form of present-day Article 13) from the draft prepared by Mr K.M. Munshi:

  1. All the existing law or usage in force within the territories of the Union inconsistent with the fundamental rights and duties shall stand abrogated to the extent of such inconsistency, nor shall any such right or duty be taken away, abridged or modified save as provided in this chapter by legislative action of the Union or a State or otherwise.[48]

In a subsequent discussion, the phrase “modified save as provided in this chapter by legislative action of the Union or a State or otherwise” was deleted. On 29-3-1947, the clause was further revised, and the term “law” was used twice i.e. once for the existing laws and once for prospective laws:

  1. All existing laws or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.[49]

(emphasis added)

It is imperative to note that the term “law” was used in the same sense, without any distinction as to their respective scopes, both for prospective law as well as existing law. This version was accepted as Clause 2 in the final draft which was submitted to the Advisory Committee by the Sub-Committee on Fundamental Rights.[50]

As is evident, the term “custom” was not yet part of this clause. It is necessary to analyse how this term came to be incorporated in Clause 2. In his draft on fundamental rights, Dr Ambedkar had a similar clause on abrogation of existing law in conflict with fundamental laws:

3. All citizens are equal before the law and possess equal civic rights. Any existing enactment, regulation, judgment, order, custom or interpretation of the law by which any penalty, disadvantage or disability is imposed upon or any discrimination is made against any citizen shall, as from the day on which this Constitution comes into operation, cease to have any effect.[51]

(emphasis added)

The said clause was considered by the Sub-Committee on Fundamental Rights and was added to the base draft of Mr K.M. Munshi in the draft report of the Sub-Committee on Fundamental Rights (as submitted to the Advisory Committee).[52] This clause was renumbered as Clause 6 and adopted with minor modifications in the final draft which was submitted to the Advisory Committee.[53]

When the Advisory Committee deliberated on the draft submitted by the Sub-Committee on Fundamental Rights, many objections were raised with respect to the language of Clauses 4, 5 and 6. In light of the said objections, a sub-committee was formed with the objective of redrafting these clauses and submitting them to the main committee.[54] Unfortunately, the deliberations of the said sub-committee are not available in public domain.

The said sub-committee redrafted these clauses and presented them to the Advisory Committee. In the said redrafting process, the original language of Clause 6 was lost. Eventually, it was decided by the Advisory Committee to delete Clause 6.[55]?? However, while doing so, it was decided to add the terms “regulations” and “customs” in Clause 2 (presumably from original clause 6).[56] The revised Clause 2 was adopted in the following manner by the Advisory Committee in its interim report:

  1. All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.[57]

                                                                                                                  (emphasis added)

The addition of these terms in the first sentence seems to be have been done from the original Clause 6 (which was subsequently deleted). The said clause, drafted by Dr Ambedkar, was drafted in a broad manner indicating that all kinds of laws in force in India are intended to be abrogated if they conflict with fundamental rights. When it was decided to delete the said clause, the broad nature of the said clause was decided to be retained by importing the terms ‘regulations’ and ‘customs’ into Clause 2.

However, at the same time, the addition of the aforesaid terms in the first sentence cannot be construed to mean that the scope of the term “law”, as used in the last sentence with respect to prospective law, changed. This becomes evident from the next amendment in the aforesaid clause which was done when the draft prepared by the Advisory Committee reached the Constituent Assembly. An amendment was moved by Mr K. Santhanam in the Constituent Assembly to the following effect:

I move that in Clause 2 for the words “nor shall the Union or any unit make any law taking away or abridging any such right”, the following be substituted:

“Nor shall any such right be taken away or abridged except by an amendment of the Constitution.”

The only reason is that if the clause stands as it is then even by an amendment of the Constitution, we shall not be able to change any of these rights if found unsatisfactory or inconvenient.[58]

The aforesaid amendment was accepted by the Constituent Assembly.[59] As a result of the said amendment, the phrase “nor shall the Union or any unit make any law taking away any such right” became “nor shall any such right be taken away” and the term “law” was deleted from the last sentence of the clause. Thus, the definition of “law” as defined in the first sentence was left to govern both existing as well as prospective law. This is another indication of the fact that scope of existing and prospective law was always intended to be identical in Article 13.

The draft adopted by the Advisory Committee was then forwarded to the Constitutional Adviser, Mr B.N. Rau, who was given the task of drafting the constitutional text based on the principles accepted by the Advisory Committee. It is imperative to note one interesting point about the draft prepared by Mr B.N. Rau. In the said draft, a note was put by him specifying that the provisions that had not yet been adopted by the Constituent Assembly were italicised, whereas mere drafting changes to make the clauses more definite or to supplement them were not italicised.[60]

Now, it must be noted that the draft of Article 9 (which eventually became the current day Article 13) was not italicised.[61] This makes it evident that he had stuck to the principles already accepted by the Advisory Committee and had only done some drafting changes to make the provision more definite. Article 9, as drafted by Mr B.N. Rau, is reproduced below:

  1. (1) All laws in force immediately before the commencement of this Constitution in the territories included within the Federation, in so far as they are inconsistent with any of the provisions of Chapter II of this Part, shall, to the extent of such inconsistency, be void.

(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.

(3) In this section, the expression “law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territories of the Federation.[62]                                                                                                                                                                                                                                                     (emphasis added)

It has already been established that in all the earlier drafts, the term “law” was used in the same sense and without any distinction for both prospective law as well as existing law. Therefore, in the draft prepared by Mr B.N. Rau also, the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2) clearly had the same meaning and scope as his draft was a mere redrafting without introduction of any new principle or concept in this clause (since this clause was not italicised in his draft signifying that he had merely redrafted the clause without changing any broad principles agreed upon by the Advisory Committee).

The aforesaid clause drafted by Mr B.N. Rau in the Draft Constitution became the current day Article 13 with some minor modifications.

Lastly, if at all any doubt remained with respect to the definition of “law” applying to both prospective as well as existing law, the said doubt was cleared by Dr Ambedkar during the Constituent Assembly Debates. Dr Ambedkar, as the Chairman of Drafting Committee, specifically clarified that the definition of law applied to the whole of Article 8 (which eventually became present day Article 13). This should lay to rest any doubt with respect to whether the term “custom” is included within the definition of “laws in force”:

… [s]ub-clause (3) of Article 8 applies to the whole of Article 8, and does not merely apply to sub-clause (2) of Article 8. That being so, the only proper construction that one can put or its possible to put would be to read the word “law” distributively, so that so far as Article 8, sub-clause (1) was concerned, law would include custom, while so far as sub-clause (2) was concerned, “law” would not include custom. That would be, in my judgment, the proper reading….[63]

The aforesaid clarification with respect to custom not applying to sub-clause (2) was given by him in the context that State cannot possibly make custom and hence the term “custom” should not be read in the definition of “laws” which are enacted by State. However, he clarified it in no uncertain terms that the definition of “law” would otherwise apply equally to both existing and prospective laws.

In conclusion, the following points emerge from the aforesaid analysis:

  • The terms “notifications, regulations, and customs” were added to the term “existing laws” in the first sentence to clarify that the term “law” is used in a broad sense.
  • The aforesaid broad definition of “law” was intended to apply equally to both existing as well as prospective law.
  • Therefore, the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2) of Article 13 clearly have the same meaning and scope.
  • Most importantly, the term “customs” was added to the term “existing laws” making it evident that existing customs were also intended to be abrogated if they conflict with existing law.

In light of the aforesaid analysis, the next section discusses the judgment of Narasu Appa[64].

IV. Analysis of the reasoning given by Gajendragadkar, J.

 a. Reasoning 1: The definition of “laws” [given in Article 13(3)(a)] does not apply to “laws in force” [given in Article 13(3)(b)].

In the aforesaid analysis of the drafting history of Article 13, it has been established that the definition of “law” was always intended to apply equally to both existing as well as prospective law. Therefore, the term “laws in force” used in “sub-clause (1)” and “law” used in “sub-clause (2)” clearly have the same meaning and scope. Accordingly, the definition of “laws” which includes customs and usages will apply with equal force to the definition of “laws in force”.[65]

b. Reasoning 2: Since the definition of “laws” does not apply to “laws in force”, the term “customs” is not covered in the definition of “laws in force”

To further substantiate this point, Gajendragadkar, J.  gave the example of the inclusion of Article 17 (abolishing untouchability) as a separate article in the Constitution.

Firstly, he observed that untouchability owed its origin to custom and usage.[66] Secondly, it was observed that since untouchability was a discrimination “based on birth”, it clearly offended the provisions of Article 15(1).[67] Based on the aforesaid two assertions, Gajendragadkar, J. opined that if customs were included within the scope of “laws in force” in Article 13, the practice of untouchability would have been deemed to be a “law in force” and it would have become void under Article 13(1) for being in conflict with a fundamental right (i.e. Article 15 which prohibited any discrimination based on birth).[68] It was observed that the fact that Article 17 was enacted separately to illegalise untouchability is a clear indication that customs were not included with the definition of “laws in force”.[69]

The aforesaid reasoning has been analysed below.

To begin with, as discussed above, the term “customs” was specifically added after the term “existing law” in the interim draft report of the Advisory Committee.[70] The specific addition of the term “customs” after “existing laws” by the Advisory Committee leaves no scope for any other interpretation apart from the fact that “customs” were supposed to be covered within the scope of existing laws. The aforesaid addition was not objected in principle in any subsequent discussions and only drafting changes were made to this clause as far as the definition of “law” is concerned (without any intention to change the broad nature of the scope of existing laws).

Secondly, based on the drafting history of Article 13, it has been established that the definition of “law” was always intended to apply equally to both existing as well as prospective law.[71] Therefore, even if the clause adopted by the Advisory Committee is disregarded and only the final adopted clause is considered, it is evident that the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2), were intended to have the same meaning and scope. Consequently, since the term “customs” is covered in the definition of “law”, it must also be deemed to be covered in the definition of “laws in force” (existing laws).

Thirdly, it is essential to discuss the example of untouchability given by Gajendragadkar, J. to establish that customs are not covered within the scope of “laws in force”. The original clause on “abolition of untouchability” did not contain any definition of untouchability.[72] Subsequently, in the draft accepted by the Sub-Committee on Fundamental Rights as well as Advisory Committee, a small modification was done to this clause and untouchability was used in inverted commas[73] in the accepted draft.[74]

Thereafter, this clause was debated in the Constituent Assembly and an amendment was moved by Srijut Rohini Kumar Chaudhury to provide for the following definition of untouchability: “Untouchability means any act committed in exercise of discrimination on grounds of religion, caste or lawful vocation of life mentioned in Clause 4.”[75] It will be useful to note that Clause 4, which was mentioned in the aforesaid proposed amendment, was the “no discrimination” clause which provided that no person shall be discriminated on the grounds of religion, race, caste, language or sex. This Clause 4 eventually took the shape of present-day Article 15 in the Constitution of India. The response given to the proposed amendment is extremely crucial. The following response was given by Mr K.M. Munshi to the aforesaid proposed amendment:

Mr K. Munshi: [C]lause 4 does not deal with untouchability at all. It deals with discrimination regarding services and various other things. It may mean discrimination even between touchables and untouchables, between people of one province and another. The word “untouchability” is mentioned in Clause 6. The word “untouchability” is put purposely within inverted commas in order to indicate that the Union legislature when it defines ‘untouchability’ will be able to deal with it in the sense in which it is normally understood.[76]

Before the impact of the aforesaid statement is discussed, it is important to remember that Mr K.M. Munshi is the same person who had introduced the clause on “abolition of untouchability” as a separate clause in his draft of fundamental rights (the same draft which was used as the base draft by the Sub-Committee on Fundamental Rights)[77]. Now, it is a settled position of law that speeches made by the mover of the Bill or Minister may be referred to for the purpose of finding out the object and purpose for which the legislation is enacted.[78] Therefore, the response/clarification given by Mr Munshi assumes a greater significance since he was the one who moved/introduced the clause on untouchability in the draft chapter on fundamental rights.

Based on the statement made by Mr Munshi, as captured above, it is evident that he introduced a separate clause on untouchability because he was of the opinion that Clause 4 did not cover within its scope the practice of untouchability since Clause 4 was only concerned with specific kinds of discrimination regarding services and a few other things. Thus, the following points emerge from the aforesaid response given by Mr K.M. Munshi:

  • The idea behind introducing a separate clause on abolition of untouchability was based on the understanding that the “no discrimination” clause (present day Article 15) did not deal with the practice of untouchability as it dealt with a separate subject-matter altogether.
  • The aforesaid reasoning goes against the reasoning given by Gajendragadkar, J. as the original inclusion of untouchability as a separate clause was not based on the premise that there is a need to introduce a separate clause on untouchability since “customs” are not included within the scope of existing laws/laws in force. In fact, the said clause was inserted because the draftsman viewed the scope of clause on untouchability (Article 17) as different from the scope of clause on “no discrimination” (Article 15).
  • Though it seems to be an erroneous understanding that untouchability is not covered within the scope of Article 15 (as untouchability is nothing but a discrimination based on birth or caste), nevertheless it leads to a clear conclusion that while introducing a separate clause on untouchability, there was no such understanding that ‘customs” are not included with the term “existing laws/laws in force”. There was a completely different consideration for introducing a separate clause on untouchability and hence, the presence of Article 17 in the Constitution of India cannot be used as an indication for the proposition that the term “customs” is not included within the scope of “laws in force” in Article 13.

Lastly, it must not be lost sight of that certain provisions were inserted in the Constitution as a matter of abundant caution.[79]The inclusion of untouchability as a separate clause must also be understood to be an insertion based on abundant caution considering the social importance of this issue. This aspect was also noted during the Constituent Assembly Debates that a clear message needs to be sent to the society against this vile practice.[80]

c. Reasoning 3: Even if “customs” is covered within the scope of “laws in force”, there is a clear distinction between “customs” and “personal law”, and “personal law” is not covered within the scope of “customs”

The aforesaid reasoning has been analysed below.

Till now, it has been established that “customs” are included within the definition of “laws in force” in Article 13. Next, it is necessary to compare ‘customs” with “personal law’.

Firstly, it needs to be noted that customs are not merely departures from personal law but are one of the sources of personal law. The following verse from Manusmriti, one of the Holy scriptures of Hinduism, leaves no scope for any other interpretation:

“The whole Veda is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction.[81]

(emphasis added)

According to this division, custom holds third place in the category of sources of law, after Vedas and Smritis. Therefore, excluding personal law from the purview of fundamental rights (but retaining customs at the same time) would mean excluding two sources of personal law from the purview of Part III but retaining the third source of personal law within the purview of Part III. It does not appear to be a logical conclusion.

Secondly, what could be the possible reason for leaving out personal law from the purview of Chapter III? The answer can only be the need to not hurt religious sentiments of the people. There has always been a strong social resistance to any proposed change in relation to religious practices. However, if the intention was to exclude personal laws, then the drafters would have also excluded customs from the purview of Part III for the simple reason that religious customs have an equivalent religious force. Abolition of a religious custom is likely to face the same resistance from the religious community as abolition of any personal law. Historically, Hindus have been governed by Hindu scriptures and customs in an equal measure.

The case of temple entry restrictions, one of the most sensitive issues with respect to Hindu religious practices, may be discussed to highlight the aforesaid point. In Anandrav Bhikaji Phadke v. Shankar Daji Charya[82], an exclusive right of worship in the temple was set up by the Chitpavan Brahmins against other communities on the basis of an established custom (though the said claim had no basis in the Hindu scriptures). The following observation of the Bombay High Court clearly establishes that the exclusive right of worship was based on an established custom:

  1. … Now the rights connected with the religious foundation, in the absence of any code of rules laid down by the founder or the sovereign power, have to be sought in the practice of the institution. What has long been done is presumed to have been rightly done. The evidence on that subject has led the Assistant Judge to the conclusion that the right of exclusive worship set up, as against the defendants, by the plaintiffs has been proved, and that the contradictory right set up by the defendants has not.[83]

                                                                                                                  (emphasis added)

Now, if Chitpavan Brahmins would have been informed that they could not enforce their customary right of exclusive worship in the temple concerned because it violates fundamental rights of other citizens, it would have surely created an uproar because religious customs are considered equally sacred by religious communities as any other source of personal law. Further, it should be kept in mind that under colonial rule, customs were given due weightage vis-à-vis written scriptures. While as per Manusmriti, customs rank below Vedas and Smritis as a source of law and in a situation of conflict between them, the Vedas and Smritis are supposed to prevail; in colonial courts, a different principle was followed. Marc Galanter points out in his article “Law and Caste in Modern India” that in colonial courts, clear proof of usage outweighed the written text of the law.[84] However, this doctrine must not be understood to mean that customs were a departure from personal law. Customs were only a departure from written texts – not personal law itself.

Though it was extremely difficult to establish clear proof of usage, it cannot be disputed that customs applied with equal (if not greater) force as written texts in India. Therefore, there cannot be any dispute that religious customs had deep binding value on Hindus.

In light of the aforesaid discussion, it can be safely concluded that if personal law was not intended to be covered within the purview of Part III in order to not hurt religious sentiments, the constitution drafters would have surely kept customs also outside the purview of Part III.

d. Reasoning 4: In the definition of “law” in Article 13 – the expression “custom or usage” has been used while “personal law” has been deliberately omitted

The Government of India Act, 1915, in which a clear distinction was recognised between personal law and customs, was referred to in order to substantiate this point.[85]It was observed that the same Government of India Act was used as a model by the Constituent Assembly. However, the drafters chose to use the term “customs” but did not include “personal law” in the draft, which according to Gajendragadkar, J. (as well as  Chagla, J.), is a clear pointer to the intention of the Constitution-making body to exclude personal law from the purview of Article 13.[86]

The aforesaid reasoning has been analysed below.

Firstly, as noted by Chagla, J. as well, the definition of “law” in Article 13 is an inclusive definition. It is a settled principle of statutory interpretation that where a definition starts with the word “includes”, the definition is prima facie extensive.[87] Therefore, the broad nature of the definition of “laws” is evident from usage of the word “includes”. The broad nature of “laws”, evident from the drafting history of Article 13, has already been discussed above in the previous section of this article. The prima facie import of the definition of “law”, therefore, seems to be to include every legal principle which has force/is considered binding by the society. The same proposition is accepted by Gajendragadkar, J. as well when he states that there can be no doubt that the personal laws are in force in a general sense.

However, both  the Judges refused to accept that personal law falls within the definition of “law” on the basis of their conclusion that the term personal law has been deliberately omitted from the definition of law after comparing this definition with Section 112 of the Government of India Act, 1915[88] (which included both “custom” and “personal law”). It appears that the Bombay High Court applied the principle of interpretation of expressio unius est exclusio alterius (what is expressly provided for by the Constitution must necessarily exclude what is not so provided for).

This principle has been held by courts to have an extremely limited application. As far back as in the 19th century itself, this principle was described as a “useful servant but a dangerous master to follow in the construction of statutes” by Lopes L.J. in Colquhoun v. Brooks[89]. It was further held in the same case that the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.[90] This case has been cited with approval by Supreme Court in many cases.[91]

This article has earlier discussed how excluding personal law from the purview of Part III (but retaining customs at the same time) would mean excluding two sources of personal law from the purview of Part III but retaining the third source of personal law within the purview of Part III, which does not seem to be a logical conclusion and will create absurd inconsistencies. Therefore, the aforesaid principle of interpretation must not be applied to exclude personal law from the purview of Article 13.

 V. Analysis of the reasoning given by Chagla, J.

Just like Gajendragadkar, J.  Chagla, J. also stated that a custom or usage is a deviation from personal law and not personal law itself.[92] Accordingly, he held that only customs are covered within the scope of Part III, and not personal law.[93] This reasoning has already been discussed above and hence, there is no need to discuss it again.

The main difference in the reasoning of Chagla, J. and  Gajendragadkar, J. is that  Chagla, J. as opposed to Gajendragadkar, J. had held that the term “customs” is included within the scope of “laws in force” in Article 13.[94] Accordingly, he accepts the position of law that if there is any custom or usage in force in India, which is inconsistent with the fundamental rights, that custom or usage is void. To that extent, this article has also reached the same conclusion.

The next section discusses the reasoning of Chagla, J. which is different from that of Gajendragadkar, J.

a. Reasoning: The Constitution has dealt with personal law only in certain respects and except for those specific provisions, personal law is not covered within the purview of Part III

 Chagla, J. also gave the example of untouchability to buttress his view that personal law is not covered within the definition of “law in Article 13. However, there is a difference in the way  Chagla, J. dealt with the example of untouchability, as compared to  Gajendragadkar, J.

As discussed already,  Gajendragadkar, J. had recognised and classified untouchability as a custom in order to support his view that the term “customs” is not covered within the definition of “laws in force” in Article 13. He had done that because he was of the view that neither customs nor personal law is covered within the definition of “laws in force” in Article 13.

J Chagla, J. on the other hand, had held that the term “customs” is included within the scope of “laws in force” in Article 13.[95] However, he did not accept the proposition that personal law is covered within the scope of Article 13. To support his view, he classified untouchability as part of Hindu personal law (and not as a custom) to opine that only in certain respects, the Constitution has dealt with personal law and except for those specific provisions, personal law is not covered within the purview of Part III:

  1. … Article 17 abolishes untouchability and forbids its practice in any form…. Now, if Hindu personal law became void by reason of Art. 13 and by reason of any of its provisions contravening any fundamental right, then it was unnecessary specifically to provide in Article 17 …. for certain aspects of Hindu personal law which contravened Articles 14 and 15. This clearly shows that only in certain respects has the Constitution dealt with personal law.[96]

Even if the definition of personal law is accepted to be distinct from custom, as understood by Chagla, J. it is evident from the drafting history of the Constitution that untouchability was not intended to be abolished as a part of Hindu personal law and it was, in fact, abolished as a custom or a social practice which was not confined to/emanating from Hindu personal law. Therefore, the clause on untouchability cannot be used as an example for the proposition that the Constitution drafters have selectively dealt with personal law, wherever considered necessary.

To substantiate the aforesaid point, the broad phraseology used in this clause may be looked at. In the report submitted to the Advisory Committee, the phrase used by the Sub-Committee on Fundamental Rights was “untouchability in any form”.[97] In the deliberation meetings of the Advisory Committee, questions were raised with respect to the vagueness of this phrase and it was even suggested that this clause should clarify that untouchability is abolished with respect to Hindus as the said practice was confined to Hindus.[98] However, such suggestions were met with huge criticism and it was reminded to the House that untouchability is not confined to Hindus only and there are many depressed classes who have to deal with the disability of untouchability despite having converted to Christianity.[99] It was opined by Dr Sardar Patel, Chairman of the Sub-Committee on Fundamental Rights, that the intention is to abolish untouchability in all forms as per his understanding.[100] In light of the aforesaid discussions, no restriction was placed on the broad nature of this clause.[101]

This clearly shows that untouchability was not intended to be abolished as a part of Hindu personal law (as understood by Chagla, J.) since, for example, the stigma of untouchability faced by depressed classes which converted to Christianity was not prescribed by Hindu scriptures and was a clear result of customary practices in the society.

Therefore, there cannot be any doubt that untouchability was abolished as a customary practice, and not as a part of personal law. Accordingly, the presence of Article 17 in the Constitution of India cannot be used to support the proposition that personal law is not included within the scope of “laws in force” in Article 13 on the premise that the Constitution has dealt with personal law only in certain respects and except for those specific provisions, personal law is not covered within the purview of Part III.

 VI. Recent trends with respect to inclusion of personal law within the scope of Article 13

 The correctness of the view taken in Narasu Appa Mali[102] has been doubted by the Supreme Court twice in recent times. Firstly, Nariman, J. doubted the correctness of Narasu Appa Mali[103] by way of the following observation in the triple talaq judgment[104]:

  1. … However, in a suitable case, it may be necessary to have a re-look at this judgment in that the definition of “law and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law.[105]

Similarly, Chandrachud, J. has also strongly criticised the view taken in Narasu Appa Mali[106] by way of the following observation in the Sabarimala Temple entry judgment[107]:

  1. The decision in Narasu[108], in restricting the definition of the term “laws in force” detracts from the transformative vision of the Constitution. Carving out “custom or usage” from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu[109], is based on flawed premises. Custom or usage cannot be excluded from “laws in force”. The decision in Narasu[110] also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed to the term “laws in force” having regard to its inclusive definition and constitutional history.[111]

However, in both the aforesaid cases, the legality of a personal law was not strictly in question and hence, this issue could not be decided in these cases.

Conclusion

In conclusion, based on the aforesaid discussion, it is submitted that personal law is indeed covered within the scope of Part III of Constitution and accordingly, any discriminatory practices under the personal laws ought to be reviewed under Part III.

The scrutiny of personal law on the anvil of rights guaranteed under Part III will also help fulfil the lifelong dream of Dr Ambedkar who wished for a society based on “liberty, equality and fraternity”.[112] In order to attain the said goal and destroy caste-based discrimination, Dr Ambedkar was of the strong opinion that the belief in the sanctity of scriptures was needed to be destroyed.[113] Therefore, scrutiny of personal law under Part III will help in delegitimising those parts of scriptures which are inherently discriminatory and hence will help in fulfilling the vision of Dr Ambedkar.

We must not forget that the nation owes a great debt to the Constituent Assembly for giving us the notion of equality and dignity. We have seen in this article that colonial courts were not concerned with these notions and were merely focused on maintaining status quo. The colonial courts were completely oblivious to the human rights of an individual. However, in independent India, the courts are duty-bound to ensure human rights of the individual. Therefore, any set of principles which have authoritative force over the citizens must be subject to judicial review. Citizens must not be denied important rights in independent India, for example the right to practice a profession of their choice (for instance, the right to become a priest), just because the personal laws prohibit such a choice.

It must not be forgotten that the individual is at the centre of Indian Constitution and individual dignity is considered paramount under the principles of Indian Constitution. Therefore, individual dignity, snatched away by a personal law, cannot be argued to be outside the subject of judicial review on the ground of religious sentiments of the society. The Preamble to our Constitution mentions “dignity” in the following manner:

“Fraternity assuring the dignity of the individual and the unity and integrity of the nation.”[114]

It is imperative to note that the Preamble assures the dignity of a person before ensuring the unity of the nation, thereby establishing a romantic ideal that dignity must trump over every other goal of the society. This is a beautiful idea because for any nation or a democratic society, nothing should trump the ideal of ensuring the inherent worth/dignity of its people. The same thought was echoed by Dr Ambedkar as well in his speech in the Constituent Assembly in November 1948:

“I am glad that the draft Constitution has…adopted the individual as its unit.”[115]


*Metropolitan Magistrate/Civil Judge, Delhi Judicial Services. BA LLB (Hons.), National Law University, Delhi.  Author can be reached at devanshu.sajlan26@gmail.com

[1] Ludo Rocher, Studies in Hindu Law and Dharmaśāstra (Anthem Press 2012) 633; Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 173.

[2]Ludo Rocher, Studies in Hindu Law and Dharmaśāstra (Anthem Press 2012) 633; Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 173. See also, Sarla Mudgal v. Union of India, (1995) 3 SCC 635, 650.

[3]In the ancient Hindu society, Shudras belonged to the lowest rung of the social order (varna system) and were meant to serve the rest of the upper class population. For a discussion on the ancient varna system, see Brian K. Smith, Classifying the Universe: The Ancient Indian Varna System and The Origins of Caste (Oxford University Press 1994) 46-47. For an understanding of social order created by Hindu scriptures, see e.g. George Bühler, The Laws of Manu (Vol. 25 of The Sacred Books of the East) (Oxford: Clarendon Press 1886) 192 [“(The pursuit of sacred) knowledge is the austerity of a Brahmana, protecting (the people) is the austerity of a Kshatriya, (the pursuit of) his daily business is the austerity of a Vaisya, and service the austerity of a Sudra.”]

[4]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[5]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[6]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[7]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[8]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi,1922 SCC OnLine Bom 114.

[9]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 1.

[10]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 7.

[11]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 7.

[12]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 8.

[13]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, paras 9-10.

[14] For the meaning of twice-born varnas, see Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 9. The first three varnas are called dvija or twice-born as only they are entitled to don the sacred thread at the ceremony of upanayana (janeu ceremony) which is interpreted as a second birth. This ceremony marks a Hindu male child’s entrance into the life of a student and his acceptance as a full member of his religious community.

[15]Marc Galanter, Law and Caste in Modern India, (1963) 3 (11) Asian Survey 544, 545.

[16]Marc Galanter, Law and Caste in Modern India, (1963) 3 (11) Asian Survey 544, 545. See also Anandrav Bhikaji v. Shankar Daji, (1883) ILR 7 Bom 323, 328-329.

[17]Marc Galanter, Law and Caste in Modern India (1963) 3 (11) Asian Survey 546.

[18]“Math” is a Sanskrit word which signifies a Hindu monastery set up by ascetics to study and teach religion.

[19]“Mahant” is the religious head/chief priest of a particular temple.

[20]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231.

[21]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, para 2.

[22]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, para 7.

[23]http://www.scconline.com/DocumentLink/Uei3bEDC.

[24]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, 166-167.

[25]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, 166-167.

[26]Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689, 699.

[27]Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689, 717.

[28]1951 SCC OnLine Bom 72.

[29]1951 SCC OnLine Bom 72.

[30] Constitution of India, Art. 13.

[31]1951 SCC OnLine Bom 72.

[32] It is important to note that only those laws can be struck down as being violative of Part III which are covered within the definition of “laws” given in Art.13 of the Indian Constitution.

[33]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[34]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[35]http://www.scconline.com/DocumentLink/GMP63muX.

[36]http://www.scconline.com/DocumentLink/k4viekQA.

[37]http://www.scconline.com/DocumentLink/h7G5KbD4.

[38]http://www.scconline.com/DocumentLink/9etOajU7.

[39]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[40]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[41]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 23.

[42]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[43]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[44]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[45] See e.g. State of Mysore v. R.V. Bidap, (1974) 3 SCC 337; Fagu Shaw v. State of W.B., (1974) 4 SCC 152; S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126.

[46]For a complete version of all the three drafts, see B.S. Rao et al., The Framing of India’s Constitution: A Study Select Documents, Vol. 2 (1st Edn., Indian Institute of Public Administration 1967) 69-114.

[47]B.S. Rao, Vol. 2, 116.

[48] B.S. Rao, Vol. 2, 73.

[49] B.S. Rao, Vol. 2, 33.

[50]B.S. Rao, Vol. 2, 171.

[51] B.S. Rao, Vol. 2, 86.

[52]B.S. Rao, Vol. 2, 132, 138.

[53] B.S. Rao, Vol. 2, 172.

[54] B.S. Rao, Vol. 2, 223, 226.

[55] B.S. Rao, Vol. 2, 290.

[56] B.S. Rao, Vol. 2, 290.

[57] B.S. Rao, Vol. 2, 296.

[58]Constituent Assembly of India Debates, Vol. III http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html (https://perma.cc/CJ7H-ZV49)(CAD).

[59]Constituent Assembly of India Debates, Vol. III http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html (https://perma.cc/CJ7H-ZV49)(CAD).

[60]B.S. Rao, The Framing of India’s Constitution: Select Documents, Vol. 3 (The Indian Institute of Public Administration, 1967), (n 39) Vol. 3, 4.

[61] B.S. Rao (n 39) Vol. 3, 7.

[62] B.S. Rao (n 39) Vol. 3, 7.

[63] CAD, Vol. VII <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29111948.html>(https://perma.cc/FT6N-P7BU).

[64]1951 SCC OnLine Bom 72.

[65] On the discussion of the scope of “laws” and “laws in force”, see the section with the heading “Drafting history of Article 13: Scope of “Laws in Force” and “Laws”.

[66]State of Bombay v.Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[67]State of Bombay v.Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[68]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[69]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[70]B.S. Rao (n 39) 290.

[71] On the discussion of the scope of “laws”, see the section with the heading “Drafting History of Article 13: Scope of “Laws in Force” and “Laws”.

[72]B.S. Rao (n 39) 74.

[73] The reason for using “untouchability” in inverted commas was to indicate that “untouchability” is used in this clause in the sense in which it is normally understood by the society. See CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[74]B.S. Rao (n 39) 297.

[75]CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[76]CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[77]B. S. Rao (n 39) 116.

[78] See e.g. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130; P.V. Narasimha Rao v. State, (1998) 4 SCC 626.

[79] See A.K. Gopalan v. State of Madras, 1950 SCR 88, where it was held that the inclusion of Articles 13(1) and (2) in the Constitution appears to be a matter of abundant caution.

[80]See CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49) (“Dr S.C. Banerjee:  … It is incumbent on us that we should be very clear as to make it explicit that in the future independent India, there should be no distinction between man and man in the social field. In other words, caste distinction must be abolished.”)

[81]George Bühler, The Laws of Manu (Vol. 25 of The Sacred Books of the East) (Oxford: Clarendon Press 1886) 192 , 11.

[82](1883) ILR 7 Bom 323.

[83](1883) ILR 7 Bom 323, 329.

[84]Marc Galanter, Law and Caste in Modern India (1963) 3 (11) Asian Survey 544, 545.

[85]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 29.

[86]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 7292, 7293.

[87] See e.g. Feroze N. Dotivala v. P.M. Wadhwani, (2003) 1 SCC 433, 442.

[88]http://www.scconline.com/DocumentLink/Nra5hpH9.

[89](1888) 21 QBD 52, 65 (CA).

[90](1888) 21 QBD 52, 65 (CA).

[91] See e.g. State of Karnataka v. Union of India, (1977) 4 SCC 608; CCE v. National Tobacco Co. of India Ltd. (1972) 2 SCC 560; Union of India v. Pfizer Ltd., (2018) 2 SCC 39.

[92]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[93]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 7288, 7289.

[94]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[95]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[96]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72.

[97]B. S. Rao (n 39) 172.

[98]B.S. Rao (n 39)  226.

[99]B.S. Rao (n 39) 226 .

[100] B.S. Rao (n 39)  226.

[101]See Constitution of India, Art 17.

[102]1951 SCC OnLine Bom 72.

[103]1951 SCC OnLine Bom 72.

[104]Shayara Bano v. Union of India, (2017) 9 SCC 1.

[105]ShayaraBano v. Union of India, (2017) 9 SCC 1, 66-67.

[106]1951 SCC OnLine Bom 72.

[107]Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.

[108]1951 SCC OnLine Bom 72.

[109]1951 SCC OnLine Bom 72.

[110]1951 SCC OnLine Bom 72.

[111]Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1, 233.

[112]Bhimrao Ramji Ambedkar and Vasant Moon, Dr Babasaheb Ambedkar, Writings and Speeches, Vol. 1 (1st Edn., Education Department, Government of Maharashtra 1979) 57.

[113]Bhimrao Ramji Ambedkar and Vasant Moon, Dr Babasaheb Ambedkar, Writings and Speeches, Vol. 1 (1st Edn., Education Department, Government of Maharashtra 1979)  68.

[114]Constitution of India, Preamble.

[115]CAD, Vol. VII http://164.100.47.194/Loksabha/Debates/cadebatefiles/C04111948.html (https://perma.cc/EL42-VKUW).

Case BriefsSupreme Court

Supreme Court of India: 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?

“NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks its door.”

“…adopt an interpretation which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective.”


Backdrop


NGT took suo motu cognizance of the article titled “Garbage Gangs of Deonar: The Kingpins and Their Multi-Crore Trade” in the online news portal, The Quint.

After the registration of the above-stated case, steps were taken for inspection of the Deonar Dumping Site by the representative of the Central Pollution Control Board, Maharashtra Pollution Control Board, the District Collector of the area and also the representative of the Municipal Corporation of Greater Mumbai.

In the above matter, NGT noted that ‘damage to the environment and public health is self-evident’ and ordered MCGM to pay compensation of Rs 5 crores.

This Court while entertaining the Civil Appeal of MCGM, ordered stay on the operation of NGT’s order and thereafter arranged for analogous consideration of cases where common threshold jurisdictional issue arose on NGT’s power to exercise suo motu jurisdiction.

NGT cannot act on its own motion or exercise power of judicial review or act suo motu?

Mukul Rohatgi, Dushyant Dave, Jaideep Gupta, Dhruv Mehta, Atmaram Nadkarni, Krishnan Venugopal, V. Giri, Sajan Poovayya and Sidhartha Dav, Senior Counsel together with E.M.S Anam, Amrita Sharma, S. Thananjayan took the common stand and argued that, NGT being a creature of the statute, the forum cannot assume inherent powers as under Articles 32 and 226 and its domain is circumscribed by the limitations so imposed.

Further, they argued that NGT has an adjudicatory role to decide disputes which necessarily mean the involvement of two or more contesting parties.

Therefore, the NGT by acting suo motu cannot transpose itself to the shoes of one such party.

Stand taken by Amicus Curiae

Senior Counsel Anand Grover, who was appointed as Amicus Curiae acknowledged the role and position under the Act and its wide jurisdiction over environmental matters but he opined that the NGT was incapable of triggering action on its own.

“The NGT cannot act suo motu without someone moving the Forum as otherwise the forum then would be perceived to be judging its own cause.”

— Senior Counsel, Anand Grover

Stand taken by Additional Solicitor General of India

On behalf of Aishwarya Bhati, Additional Solicitor General of India, it was submitted that Suo Motu power is not exercisable by the NGT since the same has not been conferred on the forum under the NGT Act.

ASG added that the tribunal was not vested with suo motu power to take action on its vested with suo motu power to take actions on its own unlike the High Courts and the Supreme Court.

Specific Grounds of Challenge

  • NGT is a creature of the statute and just like other such statutory tribunals, the NGT is also bound within statutory confines.
  • Act is applicable to ‘disputes’ as, necessarily referring to a lis between two parties. The function of Section 14 of the NGT Act is available only to adjudicate upon disputes, as in an adversarial system but not for any other ameliorative, restorative or preventative functions.
  • Lack of general power of Judicial Review. NGT, as a Tribunal with prescribed authority under. Statute does not have any general power of judicial review. Hence, it is not within the category of writ courts as under Articles 226 and 32 of the Constitution of India.

Crux of the Court’s Discussion

Superior Courts exercising discretionary powers under Article 32 and Article 226, to safeguard fundamental rights, can venture into judicial review. But such power not being expressly conferred on the NGT would suggest the limited nature of the Forum’s powers, which would exclude any suo motu exercise.

Power of Moulding relief

“Unlike Civil Courts which cannot travel beyond the relief sought by the parties, the NGT is conferred with power of moulding any relief.”

Provisions show that the NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.

Non-Adjudicatory Roles of NGT

Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution.

NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration.

Even in the absence of harm inflicted by human agency, in a situation of a natural calamity, the Tribunal will be required to devise a plan for alleviating damage.

In the Supreme Court decision of Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326, Court mandated transfer of all cases concerning the statutes mentioned in Schedule I of the NGT Act to the specialized forum as otherwise there can be conflicts with the High Courts. Notably, some of those cases were originally registered suo motu by the Courts.

Detailed Analysis | Exercise of Suo Motu Power by NGT


Supreme Court expressed that the Supreme Court and High Courts can foray into any issues under their constitutional mandate but the NGT cannot naturally travel beyond its environmental domain in reference to the scheduled enactments.

As long as the sphere of action is not breached, the NGT’s powers must be understood to be of the widest amplitude.

 The purpose of constituting the special court to deal with environmental issues was explained in the Supreme Court decision of Mantri Techzone (P) Ltd. v. Forward Foundation, (2019) 18 SCC 494, Court expressed that the Tribunal had special jurisdiction for enforcement of environmental rights.

Exposition in Rajeev Suri v. DDA, 2021 SCC OnLine SC 7, was not to constrict the suo motu powers of the NGT. In this matter, Justice A.M. Khanwilkar observed that,

“NGT is not a plenary body with inherent powers to address concerns of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise for its consideration. In a cause before it, NGT cannot directly go on to adjudicate on concerns of violation of fundamental rights and once the contours of a subject matter traverse the scope of appeal from a grant of EC, the merits review by tribunal cannot traverse beyond the scope of jurisdiction vested in it by the statute.”

 Thus, in Court’s opinion, the ratio in the above matter will not clash with the view propounded here as the exposition was not to allow any inherent power of residuary character for the NGT.

In Andhra Pradesh Pollution Control Board v. Prof. M. V. Nayudu (Retd.), (1999) 2 SCC 718, the need for an expert body with extensive functions and the sources of inspiration behind it was articulated.  

Uniqueness of NGT vis-à-vis other Tribunals

Court observed that the forum has a duty to do justice while exercising “wide range of jurisdiction: and the “wide range of powers”, given to it by the statute.

Sui Generis Role of NGT

Bench observed that NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment-related cases from the High Courts and the Supreme Court. Many of those cases transferred to the NGT, emanated in the superior courts and it would be appropriate thus to assume that similar power to initiate suo motu proceedings should also be available with the NGT.

Authority with Self-Activating Capability

Given the multifarious role envisaged for the NGT and the purposive interpretation which ought to be given to the statutory provisions, it would be fitting to regard the NGT as having the mechanism to set in motion all necessary functions within its domain and this, as would follow from the discussion below, should necessarily clothe it with the authority to take suo motu cognizance of matters, for effective discharge of its mandate.

NGT is not required to be triggered into action by an aggrieved or interested party alone.

Court stated that the exercise of power by the NGT is not circumscribed by receipt of application.

When substantial questions relating to the environment arise and the issue is civil in nature and those relate to the enactments in Schedule I of the Act, the NGT even in the absence of an application, can self-ignite action either towards amelioration or towards prevention of harm.

Bench found merit in the arguments that Section 14(1) exists as a standalone feature, not constricted by an operational mechanism of the subsequent subsections.

To be effective in its domain, we need to ascribe to the NGT a public responsibility to initiate action when required, to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application.

Precautionary Principle

  • Tribunal is itself required to carry out preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests.

“A narrow interpretation for NGT’s powers should be eschewed to adopt one which allows for full flow of the forum’s power within the environmental domain.”

Conclusion


NGT must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court.

Long term and very often irreparable environmental damage which are expected to be arrested by the NGT, urge this Court to advert to what is termed as the ‘Seventh Generation’ sustainability principle, or the ‘Great Law of the Iroquois’ which requires all decision making to withstand for the benefit of seven generations down the line.

It is vital for the wellbeing of the nation and its people, to have a flexible mechanism to address all issues pertaining to environmental damage and resultant climate change so that we can leave behind a better environmental legacy, for our children, and the generations thereafter.

Reasoning out the Primary Question:

Supreme Court also observed that,

In circumstances where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord.

Bench while making the above observations added that,

The hands-off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.

Expressing further, the Court stated that, it would be procedural hairsplitting to argue (as it has been) that the NGT could act upon a letter being written to it, but learning about an environmental exigency through any other means cannot trigger the NGT into action.

The exercise of suo motu jurisdiction does not mean eschewing with the principles of natural justice and fair play. The party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders.

Emphasising further, the Court enunciated that,

Institutions which are often addressing urgent concerns gain little from procedural nitpicking, which are unwarranted in the face of both the statutory spirit and the evolving nature of environmental degradation.

Final Words


NGT is vested with suo motu power in discharge of its functions under the NGT Act. [Municipal Corpn. Of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897, decided on 7-10-2021]

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dhananjaya Y Chandrachud* and B. V. Nagarathna, JJ., had set aside the impugned interim order of Madras High Court holding it to be an attempt to re-write Rule 29(4) of the Copyright Rules 2013. The Bench remarked,

“The interim order converts the second proviso into a “routine procedure” instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out.”

A few broadcasters had approached the Madras High Court to challenge the validity of Rule 29(4) of the Copyright Rules 2013 on the ground that it (i) violates Article 19(1)(a) of the Constitution; and (ii) is ultra vires Section 31D of the Act. The High Court, by its interim order had held that the duty which is cast on broadcasters in the notice to broadcast under Rule 29(1) is “apparently onerous”. Consequently, it directed that the petitioners before it may be permitted to resort to the second proviso to Rule 29(4) as a “routine procedure”, instead of an exception, subject to the duration of the ex post facto reporting being enlarged to fifteen days.

It was in the above backdrop that the instant appeal was initiated in the Supreme Court on the ground that the impugned interim order had the effect of re-writing Rule 29(4) of the Rules framed in pursuance of the provisions of Section 31D and Section 78(2)(cD) of the Copyright Act 1957.

Statutory Mandate

By the Copyright Amendment Act 2012, Parliament incorporated the provisions of Section 31D. Under sub-section (1) of Section 31D, a broadcasting organization which is desirous of communicating to the public by way of a broadcast or performance of a literary or musical work and sound recording which has already been published, may do so subject to compliance with the provisions of Section 31D. Section 31D(2) incorporates five requirements, namely:

  • a prior notice;
  • in the manner prescribed;
  • of the intention to broadcast the work;
  • stating the duration and territorial coverage of the broadcast; and
  • payment to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board.

Rule 29. Notice to owner for communication to the public of literary and musical works and sound recordings.—“(1) Any broadcasting organisation desirous of communicating to the public by way of broadcast or by way of performance of a published literary or musical work and sound recording under sub-section (1) of Section 31-D shall give a notice of its intention to the owner of the copyright and to the Registrar of Copyrights before a period of five days in advance of such communication to the public and shall pay to the owner of the copyright, in the literary or musical work or sound recording or any combination thereof, the amount of royalties due at the rate fixed by the Board in this regard:

Provided further that in case of communication to the public by way of broadcast or by way of performance of any published literary or musical work and sound recording or any combination thereof, in unforeseen circumstances, the notice shall, be given within twenty-four hours of such communication to the public:”

Contentions Raised

The appellants had challenged the interim order on the following grounds:

  1. By the interim order, the High Court re-wrote Rule 29(4), which is impermissible, in any event at the interim stage;
  2. The validity of Rule 29(4) was yet to be adjudicated upon and a presumption would attach to the constitutionality of both – the Rules and the Statute;
  3. There was no challenge to the validity of Section 31D in terms of which Rule 29 had been framed;
  4. The High Court had, in the course of its interim order, extended it only to the petitioners before it and to the broadcasters who had been impleaded as parties, as a result of which the pan-India operation of the Rule was left in the realm of uncertainty.

Observation and Analysis

Observing that the High Court had substituted the provisions of Rule 29(4) with a regime of its own, which was made applicable to the broadcasters and the petitioners before it, the Bench referred to the decision of the Constitution Bench in In Re: Expeditious Trial of Cases Under Section 13 138 of NI Act 188, wherein the Court had emphasized that, “the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe.”

Reiterating that the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language, the Bench expressed,

“Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft.”

Therefore, the Bench held that the High Court had entered the forbidden domain of legislative draft as it had held the broadcasters down to the requirement of prior notice, it had even modified the operation of Rule 29 by stipulating that the particulars which were to be furnished in the notice may be furnished within a period of fifteen days after the broadcast.

Hence, the Bench was of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Holding such exercise impermissible, the Bench expressed caution that it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable.

Accordingly, the appeals were allowed and the impugned interim order was set aside.

[Saregama India Ltd. v. Next Radio Ltd., 2021 SCC OnLine SC 817, decided on 27-09-2021]

____________________________________________________________________________________________

Report by: Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

____________________________________________________________________________________________

Counsels:

For the Appellants: Sr. Advocate Mukul Rohatgi and Sr. Advocate Akhil Sibal,

For the Respondents: Sr. Advocate Navroz Seervai and Sr. Advocate Neeraj Kishan Kaul


*Judgment by: Justice Dr. Dhananjaya Y Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: While elaborating the scope of judicial review, Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ., held that,

“It is not for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair.”

Crux of the Matter

Question relating to interpretation of Section 11 of the Coal Mines (Special Provisions) Act, 2015 which was an outcome of the judgment of this Court’s decision in Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, and ancillary question pertaining to the scope of judicial review of administrative action of the State authority arose for consideration in the instant appeals.

What are the present appeals challenging?

Present appeal challenged the decision of Punjab and Haryana High Court thereby allowing petitions filed by respondent – EMTA Coal Limited and holding that respondent herein will have the first right of refusal in the matter of lending of Mining Lease.

Factual Matrix

Punjab State Electricity Board (PSEB) now known as Punjab State Power Corporation Limited was proposed to be allotted Captive Coal Mines by the Union of India.

Bids were invited for the purpose of development of Captive Coal Mines and in the said bid, the respondent emerged successful. This resulted in an agreement, thereby creating a Joint Venture Company called Panem Coal Mines Limited.

Further, the said agreement provided the rights for mining of coal from the Coal Mines, transporting and delivery of it, wholly and exclusively to PSEB. Since EMTA being a partnership firm could not have been a shareholder of the Joint Venture Company, a follow up Joint Venture Agreement was entered between PSEB, EMTA and three partners of EMTA, incorporating the same terms and conditions as were found in the earlier agreement.

Later, Union of India allotted a Pachhwara Coal Block in the State of Jharkhand to PSEB.

In August, 2006 a coal purchase agreement was executed between Panem and PSEB, for the purpose of supply and delivery of the coal to power station of PSEB from Pachhwara Coal Block.

In 2007, Mining Lease was issued by the Jharkhand Government in favour of Panem, for mining coal even from the forest areas of the Coal Block.

When did the problem occur?

Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, Supreme Court held that the entire allocation of Coal Blocks made between 1993 and 2011, except those which were made through competitive bidding, were invalid, unfair arbitrary and violative of Article 14 of the Constitution of India.

Further orders passed in the case of Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 614, this Court quashed all Coal Block allocations made by the Central Government between 1993 and 2011.

Court also accepted the submission of the Attorney General that the allottees of the Coal Blocks other than those covered by the judgment and the four Coal Blocks covered by the subsequent order, must pay an amount of Rs 295/­ per metric ton of coal extracted as an additional levy.

Further, Centre vide allotment order again allocated Pachhwara Captive Coal Block in favour of PSPCL.

On facing acute shortage of coal for paddy season, PSPCL entered into a transitory agreement and with EMTA later published Notice inviting Global Tender, inviting bids for the appointment of Mine Developer-cum-Operator, for supply of coal.

EMTA in view of the above facts, filed a petition before the Punjab and Haryana High Court challenging the said NIT.

Analysis, Law and Decision

Firstly, the Court referred to Section 11 of the Coal Mines (Special Provisions) Act, 2015.

“11. Discharge or adoption of third party contracts with prior allottees.—

  • Notwithstanding anything contained in any other law for the time being in force, a successful bidder or allottee, as the case may be, in respect of Schedule I coal mines, may elect, to adopt and continue such contracts which may be existing with any of the prior allottees in relation to coal mining operations and the same shall constitute a novation for the residual term or residual performance of such contract: 

Provided that in such an event, the successful bidder or allottee or the prior allottee shall notify the nominated authority to include the vesting of any contracts adopted by the successful bidder. 

  • In the event that a successful bidder or allottee elects not to adopt or continue with existing contracts which had been entered into by the prior allottees with third parties, in that case all such contracts which have not been adopted or continued shall cease to be enforceable against the successful bidder or allottee in relation to the Schedule I coal mine and the remedy of such contracting parties shall be against the prior allottees.”

Bench stated that, it is a settled principle of law that when, upon a plain and literal interpretation of the words used in a Statute, the legislative intent could be gathered, it is not permissible to add words to the Statute.

Equally, such an interpretation which would make some terms used in a Statute otiose or meaningless has to be avoided.

In view of the above stated, Bench added that considering Section 62 of the Contract Act, 1872 read with Section 11 of the said Act, it has observed that the parties to a contract may willingly agree to substitute a new contract or to rescind it or alter it.

Observing the above, Court added that the High Court erred in observing that EMTA had a legitimate expectation.

Hence, the High Court’s reasoning was totally wrong.

Bench further opined that High Court’s reasoning that PSCPCL was within its right to reject the arrangement if the performance of EMTA was unsatisfactory or if there was any other factor which the Corporation found relevant enough to discard the arrangement altogether was totally erroneous/ 

Supreme Court’s observation:

Merely because the Coal Mine Block was allotted to PSPCL, the same could not give any vested right in favour of EMTA, particularly in view of Section 11 of the Act.

 High Court erred in forcing PSPCL to continue with the contract with EMTA, though it was not willing to do so. 

Whether Section 11 of the said Act mandates the successful allottee to continue with the existing contract?

To the above question, Bench answered saying no.

Judicial Review

The contention that order passed by PSPCL in 2018 was in a totally arbitrary and irrational manner was answered by the Court stating that the said order was passed by an authority of the State in exercise of its executive function.

Elaborating the above, Court stated that the scope of judicial review of administrative action has been well crystallised by this Court in Tata Cellular v. Union of India, (1994) 6 SCC 651.

Supreme Court expressed that while exercising powers of judicial review, the Court is not concerned with the ultimate decision but the decision-making process.

What all the Court can enquire in?

Whether a decision­ making authority has exceeded its powers, committed an error of law or committed breach of principle of natural justice.

Court can also examine whether an authority has reached decision that no reasonable Tribunal would have reached or has abused its powers.

Wednesbury principle

Court will examine whether the decision of an authority is vitiated by illegality, irrationality or procedural impropriety. While examining the question of irrationality, the court will be guided by the principle of Wednesbury.

While applying the Wednesbury principle, the court will examine as to whether the decision of an authority is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.

 Conclusion

Hence, in view of the above discussion, PSPCL’s decision cannot be questioned on the ground of illegality or procedural impropriety.

It was noted that, PSPCL had decided to go in for competitive bidding process for the purpose of eliciting the best operator.

Therefore,

A policy decision to get the best operator at the best price, cannot be said to be a decision which no reasonable person would take in his affairs.

 While concluding the Court held the Punjab and Haryana High Court’s decision unsustainable in law and the appeals were allowed. [Punjab and State Power Corporation Ltd. v. EMTA Coal Ltd., 2021 SCC OnLine SC 766, decided on 21-09-2021]


Advocates before the Court:

For the appellant-PSPCL: K.V. Viswanathan, Senior Counsel

A.M. Singhvi, Senior Counsel appearing on behalf of appellant­-DBL­VPR Consortium

Mukul Rohatgi, Senior Counsel appearing on behalf of respondent-EMTC

Case BriefsSupreme Court

Supreme Court: The division bench of Dr. DY Chandrachud and MR Shah, JJ has upheld the validity of Section 54(3) of the Central Goods and Services Tax Act, 2017 (CGST Act) which provides for refund of unutilised input tax credit (ITC) in certain cases.

Provisions in question

Section 54[1] of the CGST Act provides for a refund of tax. Under sub-Section (1) of Section 54, a person claiming a refund of “tax and interest, if any, paid on such tax or any other amount paid” has to make an application within two years of the relevant date.

Parliament envisaged a specific situation where the credit has accumulated due to an inverted duty structure, that is where the accumulation of ITC is because the rate of tax on inputs is higher than the rate of tax on output supplies. Taking legislative note of this situation, a provision for refund was provided for in Section 54(3) which embodies for refund of unutilised input tax credit (ITC) in cases involving:

(i) zero rated supplies made without payment of tax; and

(ii) credit accumulation “on account of rate of tax on inputs being higher than rate of tax on output supplies”.

Further, the Central Goods and Service Tax Rules 2017 were formulated in pursuance of the rule making power conferred by Section 164 of the CGST Act. Rule 89(5) provides a formula for the refund of ITC, in “a case of refund on account of inverted duty structure”. The said formula uses the term “Net ITC”. In defining the expression “Net ITC”, Rule 89(5)[2] speaks of “input tax credit availed on inputs”.

Case Trajectory

The petitioners approached the Gujarat High Court and the Madras High Court and made the following submissions:

(i) Section 54(3) allows for a refund of ITC where the accumulation is due to an inverted duty structure;

(ii) ITC includes the credit of input tax charged on the supply of goods as well as services;

(iii) Section 54(3) does not restrict the entitlement of refund only to unutilised ITC which is accumulated due to the rate of tax on inputs being higher than the rate of tax on output supplies. It also allows for refund of unutilised ITC when the rate of tax on input services is higher than the rate of tax on output supplies;

(iv) While Section 54(3) allows for a refund of ITC originating in inputs as well as input services, Rule 89(5) is ultra vires in so far as it excludes tax on input services from the purview of the formula; and

(v) In the event that Section 54(3) is interpreted as a restriction against a claim for refund of accumulated ITC by confining it only to tax on inputs, it would be unconstitutional as it would lead to discrimination between inputs and input services.

Gujarat High Court’s judgment

By its judgment dated 24 July 2020, the Division Bench of the Gujarat High Court, held that:

“Explanation (a) to Rule 89(5) which denies the refund of “unutilised input tax” paid on “input services” as part of “input tax credit” accumulated on account of inverted duty structure is ultra vires the provision of Section 54(3) of the CGST Act, 2017.”

The High Court therefore directed the Union Government to allow the claim for refund made by the petitioners before it, considering unutilised ITC on input services as part of “Net ITC” for the purpose of calculating refund in terms of Rule 89(5), in furtherance of Section 54(3).

Madras High Court’s judgment

The Division Bench of the Madras High Court came to a contrary conclusion, after having noticed the view of the Gujarat High Court, and held;

 “63…

(1) Section 54(3)(ii) does not infringe Article 14.

(2) Refund is a statutory right and the extension of the benefit of refund only to the unutilised credit that accumulates on account of the rate of tax on input goods being higher than the rate of tax on output supplies by excluding unutilised input tax credit that accumulated on account of input services is a valid classification and a valid exercise of legislative power.”

The divergent views by both the High Courts led to the case before the Supreme Court.

Supreme Court’s verdict

Upholding the constitutional validity of Section 54(3), the Court held that

“A claim to refund is governed by statute. There is no constitutional entitlement to seek a refund.”

The Court explained that Parliament while enacting the provisions of Section 54(3), legislated within the fold of the GST regime to prescribe a refund. While doing so, it has confined the grant of refund in terms of the first proviso to Section 54(3) to the two categories which are governed by clauses (i) and (ii) i.e.

(i) zero rated supplies made without payment of tax; and

(ii) credit accumulation “on account of rate of tax on inputs being higher than rate of tax on output supplies.

Parliament has in clause (i) of the first proviso allowed a refund of the unutilized ITC in the case of zero-rated supplies made without payment of tax. Under clause (ii) of the first proviso, Parliament has envisaged a refund of unutilized ITC, where the credit has accumulated on account of the rate of tax on inputs being higher than the rate of tax on output supplies.

“When there is neither a constitutional guarantee nor a statutory entitlement to refund, the submission that goods and services must necessarily be treated at par on a matter of a refund of unutilized ITC cannot be accepted. Such an interpretation, if carried to its logical conclusion would involve unforeseen consequences, circumscribing the legislative discretion of Parliament to fashion the rate of tax, concessions and exemptions. If the judiciary were to do so, it would run the risk of encroaching upon legislative choices, and on policy decisions which are the prerogative of the executive.”

Stating that courts are averse to entering the area of policy matters on fiscal issues, the Court said,

“Many of the considerations which underlie these choices are based on complex balances drawn between political, economic and social needs and aspirations and are a result of careful analysis of the data and information regarding the levy of taxes and their collection.”

The Court also found it impossible to accept the premise that the guiding principles which impart a measure of flexibility to the legislature in designing appropriate classifications for the purpose of a fiscal regime should be confined only to the revenue harvesting measures of a statute.

“The precedents of this Court provide abundant justification for the fundamental principle that a discriminatory provision under tax legislation is not per se invalid. A cause of invalidity arises where equals are treated as unequally and unequals are treated as equals.”

Noticing that both under the Constitution and the CGST Act, goods and services and input goods and input services are not treated as one and the same and they are distinct species, the Court said,

“Parliament engrafted a provision for refund Section 54(3). In enacting such a provision, Parliament is entitled to make policy choices and adopt appropriate classifications, given the latitude which our constitutional jurisprudence allows it in matters involving tax legislation and to provide for exemptions, concessions and benefits on terms, as it considers appropriate.”

[Union of India v. VKC Footsteps, 2021 SCC OnLine SC 706, decided on 13.09.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For UOI: N Venkataraman and Balbir Singh, ASG

For Assessee: Senior Advocates V Sridharan and Arvind Datar; Advocates Sujit Ghosh and Uchit Sheth

For Respondents: Advocate Arvind Poddar


[1] “Section 54. Refund of tax

(1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed:

Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of Section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed.

[…] (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period:

Provided that no refund of unutilized input tax credit shall be allowed in cases other than-

(i) zero rated supplies made without payment of tax;

(ii) where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods and services or both as may be notified by the Government on the recommendations of the Council:

Provided further that no refund of unutilized input tax credit shall be allowed in cases where the goods exported out of India are subjected to export duty:

Provided also that no refund of input tax credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies.”

*********************************************

[2] “(4) […]

(B) “Net ITC” means input tax credit availed on inputs and input services during the relevant period;

[…]

(E) “Adjusted Total turnover” means the turnover in a State or a Union territory, as defined under sub-section (112) of section 2, excluding the value of exempt supplies other than zero-rated supplies, during the relevant period;

(5) In the case of refund on account of inverted duty structure, refund of input tax credit shall be granted as per the following formula: – Maximum Refund Amount= {(Turnover of inverted rated supply of goods) x Net ITC ÷ Adjusted Total Turnover} − tax payable on such inverted rated supply of goods

Explanation:- For the purposes of this sub rule, the expressions “Net ITC” and “Adjusted Total turnover” shall have the same meanings as assigned to them in sub-rule (4).”

Case BriefsSupreme Court

Supreme Court: The Bench of K.M. Joseph and S. Ravindra Bhat, JJ. while addressing the matter, observed that,

Public service – like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service.

Appellant (Commissioner of Police, Delhi) on being aggrieved by the Delhi High Court decision by which the respondents were directed to be considered for appointed to the post of Constable of Delhi Police, filed the present appeal.

Factual Background

In the year 2009, an advertisement was issued wherein applications were invited for the cadre of constable in the Delhi Police.

Applicant Deepa Tomar in her application did not disclose the fact that she was facing criminal trial and the criminal cases were ended in compromise. Standing Committee while assessing the suitability of the candidates deferred Deepa Tomar’s consideration as she was facing trial in criminal proceedings and was charged with committing the offence of kidnapping under Section 364 of Penal Code, 1860.

Division Bench of High Court allowed the petitions of the candidate and quashed their rejection.

Analysis, Law and Decision

Bench noted on perusal of the Standing Order along with Annexure-A that in relation to certain offences, acquittal or exoneration of an accused candidate, per se would not entitle her or him to consideration.

Upon an overall analysis of the Standing Order, this Court is of the opinion that an acquittal or discharge in a criminal proceeding would not per se enable the candidate to argue that the authorities can be compelled to select and appoint her or him.

Decisions for Individual case:

Civil Appeal arising from SLP(C) 13285/2014 (Raj Kumar)

The Screening Committee went through the case records and noted that a compromise was recorded with the approval of the Court with respect to two offences whereas, in the graver offences, the candidate stood trial but was acquitted on account as there was not sufficient evidence and that “material witnesses” did not support the prosecution story.

In Court’s opinion, the compromise recorded in respect of the offences, that were compounded (and the acquittal for lack of evidence) is apparently so on account of material witnesses not appearing or turning hostile, was a relevant factor that the Screening Committee could and did consider.

Shiv Singh

Shiv Singh, respondent, in another case was accused of committing offences punishable under Sections 323, 341, 325, 34 IPC.

The Screening committee considered the charge sheet and the order of the trial court, and having regard to the nature of offences involved, was of the view that the candidate was not suitable, because of his propensity to indulge in such behavior without fear of law. The High Court faulted the Screening Committee’s order, as a mechanical exercise of power, and reasoned that no charge of assaulting the modesty of a woman was made against the candidate and that the charge of theft was unsubstantiated.

Prem Singh Choudhary, SLP (C) No. 4304 of 2013

It was alleged that, he committed offences punishable under Sections 143/323/341 IPC.

It was held that in the light of the materials before the police, the informant had given an exaggerated account, of the incident, which the Screening Committee rejected, mechanically.

In Court’s opinion, scrutiny of the materials, by the High Court, was as if it was sitting in appeal over the decision of the Screening Committee. That body had the benefit of the overall record of the candidate, in the context of considering his or her suitability. Its conclusions should not have been brushed aside, on the ground that it showed the mechanical application of mind, or that the materials did not show involvement in a grave or serious offence.

Deepa Tomar

Screening committee was of the view that the acquittal was by granting benefit of doubt, and that the candidate was unfit for appointment as a Constable (Female) in the Delhi Police because she was accused of having committed a heinous crime i.e. of abduction and that the victim, her husband (Jitender) was still untraceable.

Court expressed its view that,

Courts exercising judicial review cannot second guess the suitability of a candidate for any public office or post. Absent evidence of malice or mindlessness (to the materials), or illegality by the public employer, an intense scrutiny on why a candidate is excluded as unsuitable renders the courts’ decision suspect to the charge of trespass into executive power of determining suitability of an individual for appointment.

 Lastly, expressing its view with norms and its interrelation with judicial review, Bench held that,

Judicial review, under the Constitution, is permissible to ensure that those norms are fair and reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is entirely different; the autonomy or choice of the public employer, is greatest, as long as the process of decision making is neither illegal, unfair, or lacking in bona fides.

Holding that, certain types of offences, like molestation of women, or trespass and beating up, assault, causing hurt or grievous hurt, (with or without use of weapons), of victims, in rural settings, can also be indicative of caste or hierarchy-based behaviour. Each case is to be scrutinized by the concerned public employer, through its designated officials- more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society’s security, appeals were allowed. [Commissioner of Police v. Raj Kumar, 2021 SCC OnLine SC 637, decided on 25-8-021] 

Case BriefsHigh Courts

Madras High Court: V. Parthiban, J., expressed that plea of public interest in a private loan transaction is only a mask to conceal for petitioners’ interest with a view to obstruct the enforcement of contractual obligation.

Instant petition was filed against the letter of respondent calling upon the petitioner company to forthwith pay Rs 1995,05,17,808 within 7 days failing which, further action would be taken including revocation of Restructuring Agreement entered into between the parties.

Analysis, Law and Decision

What is challenged in the instant petition?

The dispute is between private entities. A communication dated 30-04-2021 issued by the fourth respondent, a private company (an Asset Reconstruction Company), against the petitioner invoking certain clauses in terms of restructuring agreement of loan between the contesting parties, was challenged.

With respect to the issue of maintainability of writ against a private person or private legal entity, the legal position was no more res integra, as various decisions of the Supreme Court and High Court held that the issuance of the writ could not be denied merely because it sought to be issued against a private person or private entity.  Hence, the Court observed that,

“…this Court does not wish to open up any fresh vista on the rudimentary understanding of the progressive expansion of public law jurisdiction in matters where the Court finds interplay of private interest and public duty.”

 The judicial endeavour is appreciation of the relationship of the parties, their mutual rights and obligations within the private and commercial framework and in that relationship collaterally or concomitantly any public duty is imposed, or public interest is involved to bring the dispute arising from such relationship within the mischief of writ jurisdiction of the Court or not?

Petitioner’s primary contention was that, the 4th respondent which stepped into the shoes of consortium of initial lenders namely 9 nationalised banks failed to implement and comply with the Reserve bank of India circulars before issuing the impugned communication. In view of such a contention, it was stated that when there was a duty cast upon the banks and the financial institutions which admittedly included the 4th respondent, failure to follow the circulars amounted to abdicating its public duty enjoined upon them and in that view of the matter, a command ought to be issued by the Court by way of a Writ for their compliance.

Judicial Scrutiny

In a contractual relationship purely governed by commercial consideration, enforcing the terms of contract/agreement by one party as against the other could be subjected to judicial scrutiny under writ jurisdiction of the Court, is a knotty question and the answers are not be found on any definite legal principles or defined contours of factual circumstances.

Elaborating the above, it was stated that as a consequence of the march of law the judicial review is directed against the action, decision making process and not concerned with identity of the body as such.

High Court observed that the circular dated 27-03-2020 which appeared to be the fulcrum of the petitioner’s submission for maintaining the writ petition began with the preamble that certain regulatory measures had been initiated and announced by the Reserve Bank of India for schedule of payment due to Covid-19 crisis.

The said circular envisaged granting of moratorium that all payments due between March 2020 and May, 2020 would be shifted by 3 months extending the period of the payment to August 2020. The circular, while delineating the policy, permitted the financial institutions to consider grant of the benefit of moratorium. The circular also envisages exemption from the benefit in regard to the loan accounts being declared as NPA.

Further, in the said circumstances, admittedly individual financial institutions were given latitude and discretion to take a call in regard to the extension of the moratorium benefit to its borrowers.

Entitlement of the petitioner as to the benefit fell squarely within the framework as between the 4th respondent and petitioner.

When the relationship is founded on the Commercial and the contractual terms and understanding, the extension of the benefit of the moratorium by one party in favour of the other party, is dependent on various facts to be taken into consideration within the private and contractual precincts of such relationship.

Bench expressed that,

If this Court were to investigate into the disputed areas of understanding between the private parties, it would certainly amount to pitch forking a public law jurisdiction into a private dispute arising under a valid contractual relationship between the parties.

High Court stated that merely because RBI Circulars were issued during the pandemic crisis, it cannot change or transform the core character of the relationship of the parties and assume the coloration of public interest.

Bench expressed that it does not find any public character attached to the relationship of the parties. Transaction between them was plainly commercial without a tinge or shade of public function involved.

Further, the Court did not see any public duty imposed on 4th respondent that is referable in the context of complying with certain provisions contained in the enactments like Industrial Disputes Act, Minimum Wages Act, the Factories Act or the Statutes relating to Pollution etc., or even certain duties which have been imposed by common law, custom, or even contract stretching the requirement in terms of the observation of the Supreme Court of India in Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331.

Public duty becomes enforceable only when there is legal compulsion for its adherence.

Court opined the following:

  • There was no compulsion imposed on 4th respondent to extend the benefit of moratorium, regardless of the nature of the default and nature of agreement between the parties.
  • In absence of any compulsion/obligation or legal mandate to follow a particular course of action, the right exercised by the 4th respondent within the 4 corners of the commercial agreements and the disputes arising thereof would certainly not come within the broad context of public law recourse.

Activities of Port: Public Interest?

It was submitted by 1st respondent Port that the activities with respect to 1st respondent Port substantially touch upon the public interest. Any disruption of its activities by the adverse action of 4th respondent would only lead to a short supply of essential goods and ultimately, would only undermine the public interest.

Employment was also provided by the 1st respondent to thousands of employees and the continuance of payments of salaries and other related obligations would also get affected as a consequence of respondent 4’s action.

Bench stated that no doubt Port activities are essential services to keep the public interest afloat, but the 1st respondent was again a private company. Its activities may touch upon the public interest, nevertheless, the petitioner cannot be allowed to craftily project the port activities for the purpose of hitching on the public interest bandwagon.

In High Court’s view, the petitioner attempted to stealthily subserve their private interest behind the facade of public interest citing port activities.

On a wafer-thin legal basis, contending RBI circulars being not followed, the writ petition was sought to be maintained. Court stated that such slender premise is not good enough to maintain the writ petition in the circumstances of the case. 

In view of the Supreme Court decision in Central Bank of India v. Ravindra, (2002) 1 SCC 367, it was observed that where transactions concerned are not squarely governed by the RBI Circulars, in that case, such circulars are to be treated as standards to judge whether the action taken by the private Banks is opposed to any public policy. Hence, the petitioner cannot compel the Court to issue a command, namely Mandamus and more so, Writ of Certiorari.

Facts in the case of Bombay High Court’s decision in TransconIconica (P) Ltd. v. ICICI Bank, 2020 SCC Online Bom 626, are identical to the present matter. In the said matter directions were passed.

In Karnataka High Court’s decision of Velankani Information Systems Ltd. v. Ministry of Home Affairs, 2020 SCC Online Kar 835, the challenge was to the action initiated by a private bank and the challenge principally was on the ground that Bank did not follow RBI Circular.

The Court found that the Bench in the above decision delved pervasively into the factual disputes and held that petitioner was entitled to the moratorium protection and in that context, RBI was directed to enforce the recovery package as contained in the RBI Circular and consequently the action initiated by the private lending institution came to be set aside.

Further, the Court remarked that it is unable to follow the above judgment.

In the present matter, the very entitlement of the benefit of a moratorium was being questioned seriously and the Court was also of prima facie view that there appears to be a substantial force in the submissions of 4th respondent. Therefore, the applicability of the RBI circular itself being an unsure case of the petitioner, question of maintaining the petition would necessarily fail on that plank.

“… already stretched boundaries of writ jurisdiction for advancing the bonafide constitutional goals cannot be further stretched to bring all private disputes within the fold of judicial review.”

 Concluding the decision, Bench held that in exercise of writ jurisdiction, the Court would certainly not get involved in the commercial disputes entirely arising from the private relationship driven by commercial consideration and issue any command as that would amount to injudicious intrusion and invasive transgression into the defined areas of conflict governed by mutual rights, liabilities and obligations.

In view of the above discussion, petition was dismissed. [Marg Limited v. Karaikal Port (P) Ltd., 2021 SCC OnLine Mad 2585, decided on 2-07-2021]