Case BriefsSupreme Court

“The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens.”

Supreme Court: When the bench of Ashok Bhushan and Navin Sinha, JJ was called upon to decide whether the High Court in exercise of its Constitutional jurisdiction conferred under Article 226 of Constitution of India can pass an order interdicting a legal fiction engrafted in a State enactment, it held,

“The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.”

It, further, noticed that the power of judicial review vested in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution.

The precise question before the Court was whether Section 5B of the Mumbai Municipal Corporation Act, 1888 oust the jurisdiction of the High Court.

  • Section 5B of Mumbai Municipal Corporation Act requires the candidate to submit caste validity certificate on the date of filing Nomination paper.
  • A candidate who has applied to Scrutiny Committee for the verification of his caste certificate before date of filing Nomination but who had not received the validity certificate on the date of filing Nomination has to submit an undertaking that he shall submit within a period of six months from the date of election, the validity certificate issued by the Scrutiny Committee.
  • If a person fails to produce the validity certificate within a period of six months from the date of election, that election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Counsellor. The period of six months was amended to be twelve months by Amendment Act, 2018.

Holding that Section 5B of the Mumbai Municipal Corporation Act, 1888 does not oust the jurisdiction of High Court under Article 226 of the Constitution, the Court said that the High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting the legal fiction as contemplated under second proviso to Section 5B, provided the legal fiction had not come into operation.

“When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous.”

It is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is mandatory requirement but in the facts of the case before the Court, before the expiry of the period of six month, the Caste Scrutiny Committee had illegally rejected the claim necessitating filing of writ petition by aggrieved persons in which writ petition the interim relief was granted by the High Court. It, hence, noticed that in the facts of the present case, the deeming fiction under Section 5B of retrospective termination of the election could not come in operation due to the interim order passed by the High Court.

“The power of the High Court to grant an interim relief in appropriate case cannot be held to be limited only for a period of one year, which was period envisaged in Section 5B for submission of the Caste Validity Certificate. No such fetter on the power of the High Court can be read by virtue of provision of Section 5B.”

[Benedict Denis Kinni v. Tulip Brian Miranda, CIVIL APPEAL NOS.1429-1430/2020, decided on 19.03.2020]

Case BriefsHigh Courts

Jharkhand High Court: Dr S.N. Pathak, J. dismissed the instant writ petition being devoid of merit.

The brief facts of the case are that the petitioner was appointed as an Assistant Teacher by the State Government in 1994 on qualifying BPSC exam for the same post. After a long service, he was given the charge of Headmaster in Upgraded Middle School, Khudgadda in Bokaro where he was performing his duties honestly and diligently. However, on 07.06.2010 an inspection was held in the petitioner’s school by the Block Development Officer, Gomiya on the basis of complain made by Gomiya Block President of Jharkhand Vikas Morcha on grounds of irregularity in civil work, irregularity in Mid-Day-Meal Scheme, and non-providing of the equipments of sports and instruments of music to the students under ‘Sarv Shiksha Abhiyan’, consequent to which DSE, Bokaro passed an order of suspension. However, the DSE, Bokaro, revoked suspension order and passed punishment order. Aggrieved by the same, the petitioner filed a Service Appeal before the Divisional Commissioner, North Chhotanagpur Division, Hazaribag , but the same was dismissed. Hence, the instant writ petition.

The counsel for the petitioner, Bhawesh Kumar placed reliance on Supreme Court’s decision in, M.V. Bijlani v. Union of India, (2006) 5 SCC 88 and submitted that the act of the respondents was beyond their jurisdiction and politically motivated as no opportunity of hearing was given to the petitioner, neither any explanation nor any show cause notice was issued to him, which amounts to violation of principles of natural justice. He further submitted that construction of building is under taken by the school committee constituted for this purpose under supervision of an engineer and there is no misappropriation by the petitioner.

The counsel for the respondents, Brij Bihari Sinha opposed and submitted that in response to charges, petitioner filed a show cause, which was not found satisfactory and a detailed enquiry was held and the petitioner was found guilty of the charges. Considering the enquiry report and other relevant facts, the DEO passed the order of minor punishment and as such, there is no illegality in the impugned order.

The Court relying on the judgment State of Bihar v. Phulpari Kumari held that the petitioner has been found guilty due to lack of evidence proving otherwise as there was no procedural laches in the proceedings rather a full-fledged enquiry was conducted following the provisions of natural justice and an ample opportunity was given to the petitioner. It was further observed that interference with orders passed pursuant to departmental enquiry can only be in case of ‘no evidence’; sufficiency of evidence not being within realm of judicial review.[Vinod Kumar Prasad v. State of Jharkhand,  2020 SCC OnLine Jhar 278, decided on 06-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Alok Kumar Verma, J., dismissed a petition filed seeking laying of a road connecting the petitioner’s village with the district headquarters.

It was stated that though construction of the road had commenced, the said work was stopped and an alternate road was being laid. The petitioner claimed that the absence of the road had made the lives of the villagers extremely difficult.

The Court while dismissing the petition explained that it cannot undertake the task of determining whether and where a road should be laid, for these were all matters in the executive realm though the villagers facing difficulty has merit and these claims could only be addressed by the state government and they do not fall under the judicial review proceedings under Article 226 of the Constitution of India. The Court, however, directed the respondents to examine the matter and take a considered decision regarding the laying of the road. [Pushkar Singh v. State of Uttarakhand, 2020 SCC OnLine Utt 74, decided on 17-02-2020]

Case BriefsForeign Courts

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ. allowed the present appeal of Canada Post Corporation, superseding the rulings of Occupational Health and Safety Tribunal and Federal Court of Appeals.

In the present case, the appellant was Canada Post Corporation, a federally regulated corporation, which provides mail services throughout Canada and the respondent was the Canadian Union of Postal Workers that represents employees of the appellant, including letter carriers. Since the federal government is responsible for the mail services in the country, Canada Post is expected to follow Canada Labour Code. A part of this code deals with workplace health and safety of the employees during the course of their employment. Section 125(1) (z.12) of the Labour Code mandates every employer to ensure that every part of the workplace is inspected once every year for the health and safety of the employees.

The issue in the present case was whether Canada Post Corporation is obligated to inspect every letter carrier routes and points of call as a part of the workplace, according to the code.

While the Health and Safety Officer agreed with the union’s claim, the Appeals Officer at the Occupational Health and Safety Tribunal agreed with the Post. The matter went to the Federal Court of Appeal which let the Appeals Officer’s decision stand and dismissed union’s request for Judicial review (Judicial review is where a court looks at a decision by someone acting on behalf of the government.) But the Federal Court of Appeal said the Appeals Officer made mistakes and decided that the Health and Safety Officer’s decision should stand. This meant Canada Post had to inspect all the routes and places mail was delivered.

The matter finally went to the Supreme Court of Canada for reviewing the decision of the Appeals Officer on the grounds of reasonableness according to the Vavilov framework, which lays down the applicable standard of review. Justice Rowe used the brand new Vavilov framework as laid down in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to analyze the officer’s decision, finding that the Officer’s decision was reasonable  As provided for in Vavilov, when conducting reasonableness review, a reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with respectful attention, seeking to understand the reasoning process followed by the decision-maker to arrive at a conclusion. What is required of statutory delegates to justify their decision will depend on the context in which the decision is made. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker.

The majority held that it was open to the Appeals Officer to make the decision, and concluded that his decision was based on an internally coherent and rational line of reasoning.

It was held that some parts of the Code are applied in general, to all places where workers had to be during their course of employment but some parts are applied only to places that the employer controlled. The section about inspections was one of these. The purpose of the inspections is to ensure the safety of the workers. Canada Post didn’t control the mail routes or most of the places where the mail was delivered as many of them were on private property. If there were a danger, Canada Post did not have the power to fix it.

Hence, the Supreme Court after exercising its power of judicial review, allowed the decision of the Appeals Officer to stand. [Canada Post Corpn. v. Canadian Union of Postal Workers, 2019 SCC OnLine Can SC 60, decided on 20-12-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Narendra Singh Dhaddha and Mohammad Rafiq, JJ. dismissed the appeal filed by Rajasthan State Road Transport Corporation (RSRTC) challenging a judgment passed by the single judge of the present court.

In the instant case, the respondent-writ petitioner was appointed in the service of the appellants as Conductor on 09-03-1984. He was dismissed from his service and the appellant-RSRTC was directed to substitute the penalty by compulsory retirement of the respondent with continuity of service and all the benefits, with payment of only 50% actual wages. After a lot of litigation, the respondent finally joined his duties but upon rejoining he was served with a charge sheet on 10-01-2000 alleging that he was absent from his duty. Earlier also a charge sheet was issued on the allegation that he too leave for somedays and cancelled the travel of the vehicle which caused loss of Rs 22,010 to the RSRTC. Another charge sheet was issued on 25-06-2003, alleging that when he was transferred to Hanumangarh from Kota, he did not report for the duty. A notice was served to him but he avoided it by giving the reason that he was undergoing treatment for back and spinal pain. An enquiry was conducted on the respondent for three different cases. After the enquiry was completed, the Chief Manager of the RSRTC passed a common order of penalty for removal of the respondent from service on 10-05-2006. This order was challenged by the respondent, but it was dismissed later with direction to the respondent to avail alternative remedy before the Labour Court under the Industrial Disputes Act, 1947. Then the respondent preferred to a division bench, which set aside the order and remanded the matter back to the Single Bench to decide the writ petition afresh.

Vinayak Joshi, learned counsel appearing on behalf of the appellants argued that the Single Judge had done a mistake of law by setting aside the order of removal of the respondent from the service. Illegality was observed by the Single Judge because a common order of penalty cannot be passed in three different charge sheets issued. The learned Single Judge did not analysis the order dated 10-05-2006 well.

H.V. Nandwana, learned Amicus Curiae appearing on behalf of the respondent opposed the appeal and contended that the appellant-RSRTC had adopted Rajasthan Civil Services Rules, 1958 for the purpose of holding disciplinary proceedings against its employees. Relying on the judgment of the Supreme Court in Mohd. Yunus Khan v. State of Uttar Pradesh, (2010) 10 SCC 539 the counsel submitted that the order passed by the disciplinary committee was vague and non-speaking one.

The court upon perusal of the facts of the case stated that the court can exercise its power of judicial review under Article 226 of the Constitution of India and interfere if the quantum of penalty is disproportionately given. Furthermore, it was held that the order of the Single Judge of this court is just, reasonable, and equitable. [Rajasthan State Road Corporation v. Suresh Agarwal, 2019 SCC OnLine Raj 3960, decided on 04-11-2019]

OP. ED.

Interpretation of Public Policy

A three-Judge Bench of the Supreme Court in Shri Lal Mahal Ltd. v. Progetto Grano SpA,[1] passed a landmark judgment, wherein the Court established a difference between the scope of Section 48 of the Arbitration and Conciliation Act, 1996 (the Act) concerning the enforceability of a foreign award in international commercial arbitration under the New York Convention Awards on the one hand and challenges to set aside an award under Section 34 of the Arbitration and Conciliation Act, 1996 on the other hand when the “seat” of arbitration is in India. The Supreme Court held that the expression “public policy” under Section 48(2)(b) would not include the ground of “patent illegality” and the judicial dictum of Renusagar Power Co. Ltd. v. General Electric Co.,[2] must apply to the expression “public policy” of Section 48(2)(b). In Renusagar,[3] the court narrowed “public policy” doctrine to a fundamental policy of Indian law, justice and morality, interests of India and thereby limiting the scope of judicial intervention in the foreign arbitral award. The Supreme Court added that the applicability of “public policy” of India doctrine for the purposes of Section 48(2)(b) is limited and narrow in cases involving conflict of laws and matters involving a foreign seated arbitration. Again, the Supreme Court in ONGC Ltd. v. Saw Pipes Ltd.,[4] held that “public policy” of India under Section 34 was required to be interpreted in the context of the jurisdiction of the court where the validity of the award is challenged before it becomes final and executable in contrast to the enforcement of an award after it becomes final. Therefore, public policy in Section 34 of the Act requires a wider meaning and so “patent illegality” was added as a new category for setting aside the arbitral award. Hence, the law laid down in Saw Pipes[5] would govern the scope of Section 34(2)(b)(ii) for setting aside an award under Section 34 of the Arbitration and Conciliation Act, 1996.

Precedents on “Public Policy”

The precedent laid down in Shri Lal Mahal case[6] was an important step forward in the right direction towards minimum judicial interference in arbitration process and thereby granting higher sanctity to foreign arbitral awards by laying down limited grounds under “public policy” based on which courts can refuse enforcement of foreign arbitral awards under Section 48 of the Act. Such was the necessity because the Supreme Court in Bhatia International v. Bulk Trading SA,[7] laid down that Indian courts would have jurisdiction in international commercial arbitrations irrespective of the seat of the arbitration. It led to a situation where foreign arbitral awards were challenged on the grounds of “patent illegality” in Indian courts. The scope of the expression “public policy” under Section 48 of the Act was further expanded in Phulchand Exports Ltd. v. O.O.O. Patriot,[8] wherein the Supreme Court held that expression “public policy” under Sections 34 and 48 of the Act are the same and added that a party could resist enforcement of a foreign award on grounds of “patent illegality”. Thus, it widened the scope of “public policy” under Section 48 of the Act and increased the chances of judicial intervention in international commercial arbitration but the decision of Phulchand[9] was ultimately overruled in Shri Lal Mahal[10] by Hon’ble Supreme Court.

Critical Analysis of Public Policy of India Under Section 48(2)(b)

In 2014, the Supreme Court of India clarified that expression “public policy of India” under Section 48(2)(b) is narrow and limited to the extent of[11]:

(i) Fundamental policy of Indian law.

(ii) Interests of India.

(iii) Justice and morality.

However, the Arbitration and Conciliation (Amendment) Act, 2015 with regard to enforcement of foreign awards added Explanation to Section 48(2)(b) and thereby clarifying when an award shall be considered to be in conflict with “public policy of India”. The Explanation states:

(i) That the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81.

(ii) In contravention with the fundamental policy of Indian law.

(iii) In conflict with basic notions of morality or justice.

The above explanation of “public policy of India” in Section 48(2)(b) is not in consonance with the judicial pronouncement laid down in Shri Lal Mahal case[12]. The Supreme Court has categorically limited the context of “public policy” to fundamental policy of Indian law, justice and morality, and in the interests of India. The Court also refused to give a wide import to the meaning of “public policy” under Section 48 of the Act and rejected “patent illegality” as a ground under public policy for non-enforcement of a foreign arbitral award. The Arbitration and Conciliation (Amendment) Act, 2015 by adding the words “fraud or corruption or in violation of Section 75 or Section 81” instead of “interest of India” as a ground under “public policy” has blatantly violated the judicial principles laid down in Shri Lal Mahal Ltd. case[13].

 Furthermore, in Associate Builders v. DDA,[14] the Supreme Court while interpreting the term “patently illegal” has held that under the Explanation to Section 34(2)(b), an award is said to be in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption. Therefore, the Arbitration and Conciliation (Amendment) Act, 2015 by including the words “the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” in Explanation 1 of Section 48(2)(b) has widened the scope of judicial review by impliedly inferring “patent illegality” within the expression “public policy of India” in complete disregard to the law laid down in Shri Lal Mahal case[15].

 Moreover, similar explanation of “public policy” in both Sections 34(2)(b)(ii) and 48(2)(b) is in violation of the precedent laid down in ONGC Ltd. v. Saw Pipes Ltd.[16] The Supreme Court in Saw Pipes[17] agreed to the subtle distinction in the concept of “enforcement of foreign award” as per Section 48 of the Act and “jurisdiction of the court in setting aside the award” as per Section 34 of the Act and held that the expression “public policy” in Section 34 requires a wider meaning and so the court added “patent illegality” as a category for setting aside the award. An arbitral award induced by fraud or corruption can be declared as patently illegal as it is so unfair and unreasonable that it shocks the conscience of the court. Therefore, Arbitration and Conciliation (Amendment) Act, 2015 by adding exactly similar explanation to the expression “public policy” in Section 48 of the Act which deals with enforcement of foreign awards and Section 34 which deals with setting aside of arbitral awards when the “seat” of arbitration is in India either domestic or international commercial arbitration, the Arbitration and Conciliation (Amendment) Act, 2015 left no scope for distinction between the two sections and had completely ignored the judicial pronouncements laid down on public policy.

It is pertinent to note that for arbitration regime to succeed in India it is important that limited grounds are laid down for judicial review in the enforcement of foreign arbitral awards in international commercial arbitration. Hence, explanation 1 of Section 48(2)(b) of the Act which states that “the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” should be replaced by the words in the “interest of India” under explanation of  “public policy”.

Conclusion

The decision of Shri Lal Mahal[18] and other cases on “public policy” has limited the scope of judicial interference of Indian courts regarding enforcement of foreign awards under Section 48 of the Arbitration and Conciliation Act, 1996 and has provided a ray of hope to help India establish as an international commercial arbitration destination. However, the Arbitration and Conciliation (Amendment) Act, 2015 which included “fraud or corruption” instead of “interest of India” has expanded the scope of “public policy” under Section 48 of the Act in violation of the judicial decision laid down in Shri Lal Mahal case[19]. Moreover, precedents show that courts have interpreted “fraud or corruption” as “patent illegality” which was rejected as a ground under “public policy” in Section 48 of the Act. Hence, Parliament should bring a further amendment in Section 48 of the Act by substituting the words “interest of India” in place of “the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” which would limit the scope of judicial review in enforcement of foreign arbitral awards.


2nd-year law student, National University of Study and Research in Law, Ranchi (NUSRL), e-mail: soumyajitsaha02@gmail.com.

[1]  (2014) 2 SCC 433.

[2]  1994 Supp (1) SCC 644.

[3]  Ibid.

[4]  (2003) 5 SCC 705, para 22.

[5]  Ibid.

[6]  (2014) 2 SCC 433.

[7]  (2002) 4 SCC 105.

[8]  (2011) 10 SCC 300.

[9]  Ibid.

[10]  (2014) 2 SCC 433.

[11]  Shri Lal Mahal Ltd. v. Progetto Grano Spa, (2014) 2 SCC 433, para 29.

[12]  (2014) 2 SCC 433.

[13]  Ibid.

[14]  (2015) 3 SCC 49, para 40.

[15]  (2014) 2 SCC 433.

[16]  (2003) 5 SCC 705.

[17]  Ibid.

[18]  (2014) 2 SCC 433.

[19]  Ibid.

Case BriefsHigh Courts

Punjab and Haryana High Court: A 2-Judge Bench comprising of Mahesh Grover and Rajbir Sehrawat, JJ., addressed a petition filed against an order passed by Central Administrative Tribunal, Chandigarh where an Original Application filed by petitioner was dismissed and his prayer for re-consideration of his suitability for the Select List for promotion to the post of IAS was rejected.

Facts of the case were such that the petitioner had joined State Civil Service in 1994. According to the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, a select list for promotion of IAS had to be prepared every year but for 2011 the select list was not created. When in 2015 the select list was created, petitioner’s name was 10th in the list but he was not considered for promotion. It is to be noted that a candidate who had expired was also considered for promotion and for the same petitioner had filed a representation before the respondents which was rejected.

Petitioner while contending brought before the Court the fact that his grade was ‘outstanding’ but the same was downgraded to be ‘very good’ and this downgrading of petitioner was arbitrary. Whereas respondent negated the jurisdiction of this Court by stating the decisions of Select Committee as sacrosanct which the court or tribunal has no authority to question and would not come under judicial review. It is upon the Select Committee as to how to make a selection and they can give their own grades not necessarily the grades given by ACRs.

The High Court after perusing provisions of the rules, regulations and the guidelines governing the appointment and the assessment for appointment was of the view that guidelines stated that reasons are mandatory to be recorded when the candidate is considered in a subsequent year with the difference in assessment from the previous year. Court had rejected the contentions of respondents and observed the assessment was devoid of rationality and was arbitrary. Therefore, this petition was allowed and the Tribunal’s order was set aside. [Satya Pal Arora v. CAT,2018 SCC OnLine P&H 1731, decided on 15-02-2018]

Case BriefsForeign Courts

Supreme Court of Canada: A Nine-Judge Bench comprising of Wagner C.J., and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ. dismissed the appeal filed by an aboriginal group challenging the introduction of a legislation without their consultation, ruling that while the State had to act honourably towards its indigenous people, but it did not mean that the Parliament had to consult them in the legislative process.

The Mikisew Cree First Nation, a territory in north-eastern Alberta, was a member of Treaty No. 8 – the eighth agreement signed by Queen Victoria and First Nations in Western Canada. Under the said treaty, in exchange for giving up their ownership of a large amount of land, Mikisew kept the right to hunt, trap, and fish on it. In the present day, these aboriginal treaty rights are protected by the Constitution of Canada.

When in April 2012, an environmental protection legislation was introduced in the Parliament without Mikisew’s consultation, it brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8 and the constitutional law concept of ‘honour of the Crown’.

The Federal Court allowed Mikisew’s application but the said decision was overturned by the Court of Appeal stating that Federal Court did not have jurisdiction to hear Mikisew’s application because courts can only adjudicate on challenges to laws that have been passed, not laws that are being developed and debated. Aggrieved thereby, the instant appeal was preferred.

The Supreme Court unanimously dismissed the appeal holding that judicial review under the Federal Courts Act, 1985 was not available for actions of federal ministers in the parliamentary process. It was held that the Parliament did not have duty to consult Mikisew during the law-making process. But ‘duty to consult’ was not the only means to give effect to honour of the Crown. The court noted that while an Aboriginal group would not be able to challenge a legislation for non-compliance of duty to consult, other protections such as declaratory relief may be obtained by them.[Chief Steve Courtoreille v. Governor-General in Council, 2018 SCC OnLine Can SC 38, decided on 11-10-2018]

Case BriefsForeign Courts

High Court of The Hong Kong Special Administrative Region: A Bench comprising of Hon Yeung Ag CJHC, Hon Poon and Pang JJA., dismissed the appeal of the applicant as he was unable to discharge the burden upon him to prove the said inflicted harm upon him.

The applicant was an Indian national who sought entry to Hong Kong from Delhi on strength of his passport at the airport. While pending his removal to Delhi, he filed a non-refoulement claim on account of being harmed or likely to be killed by a said majority party in India as he refused to be a supporter of the same.

Further, his claim was rejected by the Director of Immigration on assessing the risk involved to be low as he reasoned it with the party person having ample opportunity to do so but what was claimed to may happen didn’t really had the weightage to allow the applicant his desired claim. Also, it was considered that the availability of state protection and the possibility of relocation would further lower or negate the perceived risk. The applicant had also failed to establish his non-refoulement claim under all applicable grounds.

Accordingly, after considering the facts, the Court was satisfied that the decisions of the Director and the Board were justified. Hence on account of no legal error and fairness in the process, the leave to apply for judicial review had been refused. The appeal was dismissed.[Maninder Singh, In re, [2018] HKCA 733, order dated 31-10-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Rohit B. Deo, J. quashed the order of the trial court whereby plaintiff’s application under Order XVIII Rule 3-A CPC seeking permission to examine his power of attorney (his son) he himself steps into the box.

The petitioners were the defendants in the special civil suit instituted by the respondent-plaintiff seeking a decree of damages for defamation. The application was predicated on the assertion that the power of attorney holder was personally acquainted with the facts. The averment in the application was that the plaintiff was aged 80 years and suffering from various ailments. It was also averred that no prejudice would be caused to the defendants if the son of the plaintiff is examined before the plaintiff. The defendants opposed the application, inter alia, denying that the plaintiff was suffering from various ailments. However, by the order impugned, the trial court allowed the plaintiff’s application under Order XVIII Rule 3-A. Aggrieved thereby, the instant petition was filed by the defendant.

The High Court, after considering the facts and circumstances of the case, observed that the legislative mandate is that ordinarily where a litigant himself wishes to appear as a witness, he shall so appear before any other witness in his behalf has been examined. Rule 3-A confers a discretion on the Court to permit, for reasons to be recorded, the plaintiff to appear as his own witness at a later stage. However, implicit in the statutory scheme is the rider that the normal rule may be deviated from only in exceptional circumstances and for reasons recorded which must sustain judicial review. “The legislative object of bringing on statute Rule 3-A was to ensure that a litigant should not be permitted to bide his time and to fill in the lacuna or cover the loopholes after the other witnesses are examined.” In the matter at hand, the Court found it difficult to believe that the plaintiff was suffering from various ailments to such an extent that he was not in a position to step into the witness box. Therefore, the Court held that the order impugned militate against the object and intendment of Order XVIII Rule 3-A, which was accordingly quashed. [Sanj Dainik Lokopchar v. Gokulchand Govindlal Sananda,2018 SCC OnLine Bom 3336, decided on 11-10-2018]

Case BriefsHigh Courts

Tripura High Court: A writ petition for the claim of compensation in a medical negligence case was filed before a Single Judge Bench comprising of Ajay Rastogi, CJ.

Facts of the case are that the petitioner is the father of the deceased child who incurred a head injury. The child was shifted immediately to a hospital but after three days after the accident, he was moved to AGMC & G.B.P. Hospital, where he succumbed to his injuries. Petitioner alleged medical negligence in criminal complaint after which FIR was registered. For purpose of examining the same, a committee was constituted by the order of Director of Health Services. The report of committee examined the matter and concluded that treatment given to the patient was in accordance with the existing protocol and no negligence was found on part of the doctors involved in the treatment of deceased.

 The High Court was of the view that under limited scope of judicial review under Article 226 of the Constitution of India it is not possible to examine the allegation of medical negligence as the parties have not yet provided evidence in respect of their respective claims. Therefore, Court observed the quantification of compensation to be out of their scope due to the above reasons and the writ petition was dismissed. [Krishna Sarkar v. Government of Tripura,2018 SCC OnLine Tri 209, Order dated 13-09-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Shampa Sarkar, J. dismissed a writ petition filed by a student of BA English (Honors), holding that it could not pass orders in violation of policies of educational bodies.

The petitioner was a student of BA English (Honors) Part I in the University of Calcutta. She appeared in Part I examination in which she failed. She applied for re-evaluation but the marks remained unchanged. Thereafter, she applied for production of her answer script to the Authority concerned; however, the same was not supplied to her. The petitioner sought an order from the High Court to be allowed to appear in Part II examination as a special case.

The High Court perused the record and found that the result of Part I exam was published in 2017. A copy of petitioner’s answer script was sought to be produced in January 2018. Thereafter, till May 2018, the petitioner did not take any step regarding inaction of the respondent. The High Court categorically observed that it cannot permit any candidate to sit in any examination if they are ineligible under the rules. Further, ‘the writ court sitting in judicial review, cannot pass any order in violation of the rules and policies of the educational bodies’. The examination rules stated that any candidate who had failed in Part I examination, will have to repeat the same exam. The petitioner did not have any vested right to appear in Part II examination. Moreover, the petitioner was sleeping over her right since January 2018. In such circumstances, the petition was dismissed. [Sangita Ganguly v. University of Calcutta, 2018 SCC OnLine Cal 2953, dated 23-5-2018]

Hot Off The PressNews

Supreme Court: In yet another high-profile election drama, when the Congress-JDS approached the Supreme Court at late hours of Wednesday to stall the swearing in ceremony of BJP candidate BS Yeddyurappa as the Karnataka Chief Minister after the Karnataka Governor Vajubhai Vala asked him to seek trust votes in the floor test within 15 days of his swearing in, the 3-judge bench of Dr AK Sikri, SA Bobde and Ashok Bhushan, JJ directed:

“As far as swearing-in is concerned, we are not restraining it, but we are making it subject to the outcome of the case.”

In the hearing that began at 01:45 AM, Congress-JDS contended that despite presenting the list of 116 MLAs, governor Vajubhai Vala has invited the BJP which has 104 MLAs to form the government and has given relatively longer time of 15 days to prove the majority on the floor of the House.

Below are the highlights of the midnight drama that transpired post Karnataka Election:

  • Senior Advocate Abhishek Manu Singhvi (For Congress-JDS):
    • There are innumerable instances where combination of post-poll group was called despite there was a different single largest party, one such instance being the Goa Elections Goa where BJP outnumbering single largest party was called to form the Government and the Supreme Court had upheld this.
    • We are challenging the act of Governor not calling us. Should a person be given 15 days for proving majority? Governor can’t negate democracy and after the swearing in happens I can’t come to Supreme Court.
    • 104 ahead of 116 is adding insult to the injury. Giving 15 days is encouraging unconstitutional sin of poaching.
  • Bench: it is to be considered whether the Court can restrain a Governor,
  • Singhvi: Governor action is subject to judicial review. The argument is court should not issue injunction and judicial review is not the question.
  • Bench: We don’t even have the letter other party has written to governor.  How can we decide?
  • Singhvi: In Meghalaya, Manipur and Goa, Congress was the single-largest party but BJP and other parties were invited to form Government. Governor’s exercise of Government duty is under judicial review. Court can question Governor. Supreme Court can defer the swearing-in.
  • Bench: You want us to scrutinise discretion of governor but you don’t have letter given to governor which found basis for inviting BJP.
  • Singhvi: Governor doesn’t give any reason in calling BJP. Claim of BS Yeddyurappa is leader of BJP whereas Kumaraswamy is claiming Congress support. Unless Supreme Court sees Mr Yeddyurappa’s letter to the Governor, the court can defer the swearing-in. On what basis the governor invited BS Yeddyurappa.

_____________________________________________________________________________

  • Attorney General KK Venugopal (For BJP): Defection is one member crosses to other party. Defection law won’t apply before he is swearing in as MLA.
  • Bench: You mean before swearing in MLAs can switch sides? In a case like this how you will have more numbers when the other side has already given 116 to Governor. JDS and Congress outweigh BJP. In a situation like this on what basis Mr Yeddyurappa has staked claimed. The arithmetic defies in what way he was invited to form Government.
  • AG: Even if swearing-in takes place it is reversible. Once the floor test takes place real picture will be known.
  • Bench: Why 15 days were given by the governor?
  • AG: It is governor’s decision. Waiting for 15 days heavens will not fall. What’s the purpose of stopping the swearing-in? Let the floor test take place.
  • Bench: Your argument is floor test will fail.
  • AG: We don’t know.
  • Bench: What’s bothering us is the fluid situation.
  • AG: The the time given to BJP for proving majority can be reduced to seven days

_____________________________________________________________________________

  • Former Attorney General and Senior Advocate Mukul Rohatgi (For BJP): This case should have never been taken up at midnight.
  • Bench: On what basis you are claiming?
  • Rohatgi: 
    • Heavens won’t fall if someone is sworn in. Last time Supreme Court heard in night, the case related to hanging of Yakub Memon.
    • Congress wants injunction and wants governor not to discharge his function. Action of swearing can always be reversed by Supreme Court.
    • Question is can court stop governor from discharging his constitutional duty? Can Supreme Court stop President from signing warrant of appointing judges? Job of governor is to give oath – whether right or wrong.
    • Supreme Court can’t ask governor to file affidavit and can’t issue notice.
  • Bench: Is this your interpretation that governor action amenable but the governor as individual not answerable to court?
  • Rohatgi: 
    • Yes. Governor can’t be stopped to do his job. It is unheard of.
    • Supreme Court can reduce time period from 15 to 10 or 7 days for BJP to prove majority.

_____________________________________________________________________________

  • Bench: Swearing in will go on.
  • Singhvi: Don’t stay the swearing-in but defer it for two days. Defer swearing-in for at least till 4.30 and ask Mr Yeddyurappa to produce the letter he gave to the governor.
  • Bench: This petition is a subject of hearing later on.

Supreme Court issued notice to BS Yeddyurappa and other respondent’s and listed the matter for further hearing on 18.05.2018. The Court, in it’s order, said:

“it is necessary to peruse the letters dated 15th May, 2018 and 16th May, 2018 submitted by the respondent No.3 to the Governor which find a mention in the communication dated16th May, 2018 of the Hon’ble Governor.”

Without passing any order staying the oath ceremony of the new Karanataka Chief Minsiter, the Court said:

“In case, he is given oath in the meantime, that shall be subject to further orders of this Court and final outcome of the writ petition.”

[Dr. G. Parmeshwara v. Union of India, WRIT PETITION (CIVIL) Diary No.19482/2018, order dated 17.05.2018]

(With inputs from NDTV)

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Tarlok Singh Chauhan, J., decided a petition filed under Article 227 of the Constitution, wherein petitioner’s challenge to the order of the learned Civil Judge whereby she refused his application to lead additional evidence, was dismissed.

The petitioner submitted that one Shri S.R. Chaudhary, advocate who had drafted the Will in concern, was a necessary witness and due to inadvertence of the counsel, the petitioner was not able to examine the said witness. Therefore, the petitioner filed an application before the Civil Judge to be allowed to lead additional evidence, which was refused. The said order was challenged by the petitioner in the instant petition.

The High Court referred to various decisions of the Supreme Court to observe that power of judicial review under Article 227 is to be exercised only in extreme cases, where there is perversity or irrationality on the face of it. Further, concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. On the issue that the party could not be allowed to suffer for inactions of the counsel, the Court held that each case has to be looked into on its own facts. The Court found favour with the submissions made by learned counsel for the respondent, that the said application is an afterthought and an attempt to fill the lacuna in the petitioner’s case. The application was filed after nearly four and a half years of closing of evidence and also, admittedly, as many as four counsels were changed by the petitioner during this interregnum. The Court held that this was not a case where the petitioner could be said to have suffered due to inadvertence of the counsel.

The Court held that it was not a case where the Court was required to interfere with the order passed by the court below and hence the petition was dismissed. [Kishan Chand v. Soma Devi,  2018 SCC OnLine HP 378, decided on 3.4.2018]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr DY Chandrachud, JJ stayed the Delhi High Court judgement dated 17.02.2016 in Indian Radiological and Imaging Association (IRIA) v Union of India, Writ Petition (C) No. 6968 of 2011 for negating the directions given by the Supreme Court in Voluntary Health Association of Punjab v Union of India, (2016) 10 SCC 265.

In Voluntary Health Association of Punjab case, the Supreme Court had issued comprehensive directions for the purpose of effective implementation of the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act). In the said judgment, the Court had directed the states and the Union territories to implement the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 forthwith considering that the provision for training required under the above subordinate legislation, is imperative to realise the objects and purposes of the Act.

When the validity of the said Training Rules was challenged before the Delhi High Court, it held that it was unable to find any provision in the PCPNDT Act empowering any of the bodies constituted under the law or even the Central government to prescribe qualifications for practicing medicine with the aid of an ultrasound imaging equipment or to prescribe the nature and content of the curriculum or duration of the qualification.

After going through the various provisions of the Training Rules and the PCPNDT Act, the Court said:

 “Prima facie the judgment of the Delhi High Court has trenched upon an area of legislative policy. Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature. Both the Indian Medical Council Act, 1956 and the PCPNDT Act are enacted by Parliament. Parliament has the legislative competence to do so. The Training Rules 2014 were made by the Central Government in exercise of the power conferred by Parliament. Prima facie, the rules are neither ultra vires the parent legislation nor do they suffer from manifest arbitrariness.”

It said that Parliament which has the unquestioned authority and legislative competence to frame the law considered it necessary to empower the Central government to frame rules to govern the qualifications of persons employed in genetic counselling centres, laboratories and clinics. The wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review.

For the said reasons, the Court stayed the impugned Delhi High Court judgment and directed that   the judgment of this Court in Voluntary Health Association of Punjab case shall be strictly enforced by all states and union territories untrammelled by any order of any High Court or any other court. [Union of India v. Indian Radiological and Imaging Association, 2018 SCC OnLine SC 221, order dated 14.03.2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Antony Dominic, Ag. C.J. and A. Muhamed Mustaque, J. heard a petition, wherein the petitioner requested the Court to issue writs of mandamus and quo warranto against the Chief Minister and against four cabinet ministers, respectively. The issue was that the cabinet ministers had breached their oaths to office by abstaining or boycotting a cabinet meeting due to political reasons. Therefore, the questions before the Court were that whether a prayer for a writ of quo warranto be entertained at all and whether breach of oath by a Minister is “a constitutional impediment for his continuance in office.”

Relying on a Full Bench decision of the Supreme Court in  K.C. Chandy v. R. Balakrishnan Pillai, the Court reiterated that “if no oath is taken before assumption of office as enjoined by the Constitution, there is no legal title to hold that office and a writ of quo warranto will naturally go from this Court,” and since breach of an oath should require termination of the tenure of office, that termination is not the Court’s duty and jurisdiction under Article 226 cannot be exercised. The question of breach of an oath of office by a Cabinet Minister was held to be out of judicial review and falls within the discretionary domain of the Chief Minister or Governor as per the doctrine of pleasure. As a result, the petition was dismissed. [Alappey Asharaf v. Chief Minister,  2017 SCC OnLine Ker 20900, dated 24-11-2017]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Court recently dealt with a case wherein the petitioners had previously requested the respondents to withhold the building of a new school on a certain new premise after it having sustained damages because of a flood in its previous location, since the construction would case heavy burden on the state exchequer. After repeated refusals to consider the request, the petitioners approached the Court to pass an order in their favor.

The Court held that it is manifest that the power and the authority of the Courts to examine the correctness, suitability and appropriateness of a policy of the Government is limited in its scope and extent. It held that the Courts can sit in the judgment of the executive only in case it violates the fundamental rights of the citizens or is in conflict with the provisions of the Constitution or is opposed to any statutory provision or is manifestly arbitrary. It held that the decision of the political executive in constructing a school at a particular place is not amenable to judicial review as, on the face of it, it is neither violative of the fundamental rights of the citizens nor is it opposite to the provisions of the Constitution or any statutory provisions nor is it manifestly arbitrary and particularly when both the damaged building and the building under construction are said to be housed on the bank of river Afzire and to cap it all, there is no document on record to substantiate and support the plea of the petitioners that the school building is being constructed on the bank of the river despite the availability of an alternate space.

The Court referred to Inhabitants of Township Dangiwacha v. State, OWP 563/2011, wherein it had cited several judgments to substantiate its reasoning. In Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, the Court held that “Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.” It also cited Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 wherein it was held, “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made”. [Residents of Village Chowdar Gund v. State, 2017 SCC OnLine J&K 667, decided on 10.11.2017]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Nishita Mhatre, Acting CJ and Tapabrata Chakraborty, J. dismissed the appeal filed by the National Institution for Orthopedically Handicapped, holding that the respondent-employees deserved to be absorbed and regularized in the service of the Institute.

In the instant appeal, the question raised was whether the employees who have been working satisfactorily for more than 30 years in a canteen which provides food for the patients and staff of an Institution run by the Union of India were entitled to absorption and regularization in service?

Learned Single Judge of the High Court previously held that the employees were entitled to be regularized in service with the Institute concerned.  Aggrieved by that decision of the learned Single Judge, the Institute preferred the instant appeal through its Director and other Officers.

The Institute was established, maintained and managed by the Government of India. There were in-patients who were admitted to the hospital run by the Institute and who were being treated there for years together. Food services for such patients were provided from the canteen in which the employees were working. The number of employees inducted into the canteen was regulated by the Institute. The Institute payed 70% of the salary of the canteen staff and 30% was paid through the income of the canteen.

The High Court after perusing all the material on record and the submissions made by the parties was of the opinion that the decision of the employer to create or abolish posts or to prescribe the source or mode of recruitment and lay down the qualification etc. is not immune from judicial review. In the instant case, the only obstacle in the way of absorption of the employees into regular service was lack of sanctioned posts. The High Court held that, to suggest that employees who have been working for 30 years without a break in the canteen which undoubtedly formed an integral part of the Institute would not be considered as permanent or regular employees, was utter callousness and neglect on the part of the Government in fulfilling its Constitutional mandate besides being contrary to the provisions of law as well as several judgments cited at the Bar.

Accordingly, the appeal filed by the Institute was dismissed and directions were given for the absorption and regularization of the canteen employees in service within 12 weeks. [National Institution for Orthopedically Handicapped v. Goutam Banerjee, 2017 SCC OnLine Cal 14927, order dated 18.09.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with an important question as to whether the process of appointment of a principal in minority institution is open to judicial review, the bench of A.K. Goel and U.U. Lalit, JJ, held that while under the constitutional scheme, a “minority institution” is free to select and appoint a principal, without being bound by the principle of seniority alone, whether the appointment has been made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure, is liable to be tested in exercise of power of judicial review under Article 226 of the Constitution.

In the present case, where a person junior to the appellant, who was appointed as Incharge-Principal, in the absence of regular principal, was appointed to the post of principal of a minority institution, the Court said that the minority institution may not be compelled to go by seniority alone but it must follow a criterion which is rational.

Stating that the grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice, the Court said that the exercise of right of choice has to be fair, non-discriminatory and rational. The Autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process. [Ivy C. da. Conceicao v. State of Goa, 2012 SCC OnLine Bom 1040 , decided on 31.01.2017]

Case BriefsSupreme Court

Supreme Court: In an appeal filed by the Union Government against a judgment of the Rajasthan High Court which issued a direction to the Union Government and to its Secretaries in the Ministries of Civil Aviation and Home Affairs “to include the Chief Justices and the Judges of the High Court in the list of persons exempted from pre-embarkation security checks” at airports, the Full Bench of T.S. Thakur, CJ and D.Y. Chandrachud and L. Nageswara Rao, JJ. ruled that the High Courts in their power of judicial review are not entitled to suggest policies which they consider fit as it falls beyond the legitimate domain of judicial review.

This ruling of the Court came in light of a judgment of the Rajasthan High Court, wherein the High Court had taken sou moto cognizance of a breach of security matter at the Sanganer Airport, Jodhpur and conversely issued a direction of a nature that encroached upon the domain of the executive and lay outside the power of judicial review.

The Court held that preserving the sanctity of judicial power is necessary and for this, the power of judicial review is confined to cases where there is a breach of law or of the Constitution. It said that the judgment of the Rajasthan High Court is an example of a matter where the Court should not have entered. While combining a Transfer Petition T.P.(C) No. 75 of 2012 against an order passed by the Allahabad HC with this appeal, this Court categorically noted that that the directions issued by the HC must not be unrelated to the basis on which jurisdiction under Aticle 226 is invoked. [Union of India v. Rajasthan High Court, 2016 SCC OnLine SC 1468, decided on 14.12.2016]