Experts CornerSiddharth R Gupta

Part I of this Article dwelt into the origins of the concept of non-arbitrariness through various judgments delivered in the decades of 1950s and 1960s. It discussed the ripening of the said jurisprudence up to the judgment of  E.P. Royappa v. State of T.N.[1] Eventually, whilst referring to various judgments, specifically the judgment of the Supreme Court in K.R. Lakshmanan v. State of T.N.[2], to deduce that the sword of non-arbitrariness can be swung for invalidating not only the executive action, but also the legislative one. Part I thus, left the remaining discourse to be covered by the present part of this article, which shall be elucidating upon distortion of the applicability of arbitrariness for invalidating legislative action in the judgment of State of A.P. v. McDowell & Co.[3] How post distortion in McDowell[4], the Supreme Court did a systemic course correction in Shayara Bano v. Union of India[5] and settled the chequered legal position holding the ground today. The article shall also delve into “time as a testing criteria” for examining the validity or invalidity of the legislation on the altar of Article 14 and the initial view of the Indian judiciary on the same.

 


Distortion in McDowell and its Resurrection in Shayara Bano


In State of A.P. v. McDowell & Co.[6], constitutional validity of certain provisions of Andhra Pradesh Liquor Prohibition (Amendment) Act, 1995 were assailed by the manufacturers of intoxicating liquor. The challenge relating to Article 14 and arbitrariness of the amending provisions was mounted essentially on the ground that though there was an absolute prohibition under the enactment, the exempted categories were allowed to consume intoxicated liquor in Andhra Pradesh. Thus the real purpose of imposing a total prohibition within the territories of Andhra Pradesh stood defeated by provisions relating to exemption of specified categories of manufacturers and consumers of liquor, which was pitched to be completely arbitrary. It was argued that roots of Article 14 were traceable to the Federal Constitution of the United States of America, wherein the power of the Parliament/State Legislature to make the laws is delimited by the Bill of Rights.  The 3-Judge Bench of the Supreme Court  vide para 43[7] onwards held that only two grounds are available for striking down any legislation/legislative action viz. “lack of legislative competence” or “violation of any fundamental right under Part III of the Constitution of India” or any other constitutional provision, or both. The Court further held that the ground of invalidation must fall within four corners of the wordings of Article 14, then only can it be struck down. In the context of Article 19(1), it was held that parliamentary/State legislation can be struck down only if it is found to be not saved by any of clauses (2) to (6) of Article 19. The Court in clear and categorical terms held that no enactment can be struck down merely on the argument that it is “arbitrary” or “unreasonable”, but there has to be some other tangible constitutional infirmity to be found before the legislation is declared unconstitutional. The Supreme Court vide para 46 held that applicability of arbitrariness as a ground for invalidating any legislation is confined only to legislative actions and no opinion was expressed insofar as its applicability to delegated legislation is concerned. The Court held that any act which is discriminatory can easily be labelled as arbitrary, but the reverse synthesis is not permissible. Accordingly, the Court repelled the challenge to the constitutionality of the A.P. Prohibition Act, on the specific anvil of the arbitrariness under Article 14 of the Constitution of India.

 

Thus, the judgment of McDowell[8] was essentially a clear distortion from the linear reasoning being adopted prior to it of legislations being invalidated if found “arbitrary” per se. The Supreme Court in McDowell case[9] thus completely shut the doors to entertain any argument of arbitrariness for assailing any legislative enactment.

 

Pertinently, McDowell case[10] had in its enthusiastic bid to hold or limit the applicability of arbitrariness doctrine to legislative enactments ignored its own binding decisions delivered prior in point of time. The first one being the Constitution Bench judgment in Ajay Hasia v. Khalid Mujib Sehravardi[11] by a larger Bench and the second one being the Coordinate 3-Judge Bench judgment in K.R. Lakshmanan[12].

 

Besides the line of reasoning adopted by the three-Judge Bench in McDowell case[13] was that American Courts have discouraged and dissuaded the employment of “substantive due process” for scrutinising and invalidating legislative actions in the US. Therefore the Court should not sit over the wisdom of the legislature and employ “substantive due process” to strike down legislative provisions. This reasoning was completely flawed as by this time, Maneka Gandhi v. Union of India[14] and its legacy had come to occupy the field with Articles 21, and 14 imbued with the spirit of substantive due process getting interconnected and interlinked with “reasonableness” under Article 19. This was said in so many words by Justice Krishna Iyer in the celebrated judgment of Sunil Batra v. Delhi Admn.[15], wherein the Court categorically held that Section 21 encompasses substantive due process and fairness also as a ground for testing any executive decision. Vide para 52, the Supreme Court in Sunil Batra[16] speaking through Justice Krishna Iyer held thus:

 

  1. True, our Constitution has no “due process” clause or the VIII Amendment; but, in this branch of law, after Rustom Cavasjee Cooper v. Union of India[17] and Maneka Gandhi[18], the consequence is the same. For what is punitively outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanise and civilise the lifestyle within the concerns. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman sentenced for a term is doing violence to Part III.

 

McDowell21, which was a 3-Judge Bench pronouncement, was followed by multiple other subsequent judgments of the Supreme Court, as also the High Courts, which are not being spelt out herein, since the discussion has to now get routed to the verdict of Shayara Bano v. Union of India[19] of the Constitution Bench of the Supreme Court of India. Here the practice of instantaneous triple talaq was laid challenge to by Shayara Bano who was a Muslim lady and married to Rizwan Ahmed for 15 years, when in 2016, she was divorced by just being pronounced orally talaq thrice.

 

She approached the Supreme Court praying for writ declaring the orally declared triple talaq void ab initio on the grounds that it violated her fundamental rights. The question arose about the applicability of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which provided that “notwithstanding any custom or usage to the contrary, all questions relating to marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaarat, etc. the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat)”. Meaning thereby that in case of Muslims, by virtue of Section 2 of the Application Act of 1937, Muslim personal laws became automatically applicable in disputes appertaining to marriage, dissolution of marriage, including talaq.

 

The majority opinion led by Justice R.F. Nariman held that the practice of triple talaq is inherently unconstitutional. Referring to the long line of judgments of Sunil Batra[20], Mithu v. State of Punjab[21], the Court held that a law can always be tested on the allegations of it being arbitrary, oppressive and crossing all the bounds of reasonableness. The Court categorically held that McDowell case[22] had perhaps overlooked and ignored the binding nature and efficacy of multiple Constitution Bench and Coordinate Bench (3 Judges) judgments, which being earlier in point of time were all binding on it. Vide paras 82 to 84 of the Shayara Bano case25, the majority speaking through Justice R.F. Nariman held thus:

 

  1. It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments in Mithu case[23] and Sunil Batra case[24] that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”.
  2. A three-Judge Bench in the teeth of this ratio cannot, therefore, be said to be good law. Also, the binding Constitution Bench decision in Sunil Batra[25] which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the three-Judge Bench decision in McDowell[26].
  3. The second reason given is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19, which is a reiteration of the point of view of A.K. Gopalan v. State of Madras[27] that fundamental rights must be seen in watertight compartments. We have seen how this view was upset by an eleven-Judge Bench of this Court in Rustom Cavasjee Cooper v. Union of India[28] and followed in Maneka Gandhi[29]. Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2) to (6), as has been laid down in several judgments of this Court, some of which are referred to in Om Kumar v. Union of India[30] and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well.

 

Accordingly the Supreme Court expressly overruled the judgment of McDowell[31] and the consequent distortion caused by it. The law eventually resettled by Shayara Bano[32] is that applying the “arbitrariness doctrine”, even the legislative provisions can be struck down if they are found to be discriminatory, with their operation being whimsical, excessive, unreasonable or disproportionate. The Constitution Bench categorically held that this sort of arbitrariness will cut deeply through all kinds of State action, be it legislative or executive and would spare no one. The fine tuning of this doctrine was taken to highest standards in Shayara Bano[33] by holding that Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights as also other rights conferred by the Constitution. Hesitation or refusal on the part of constitutional courts to nullify the provisions of an Act meant to be unconstitutional on the technical grounds of “non-applicability of arbitrariness doctrine” to legislative actions even when such legislative provisions patently infringe constitutional guarantees in the name of judicial humility, would escalate serious erosion of remedies available to the citizens of this country under the Constitution.

 

The majority opinion of the Supreme Court thus in Shayara Bano[34] ultimately held that triple talaq is gender biased giving uncanalised discretion to a Muslim man/husband to strip off his marital ties with his wife through mere oral recitations. Therefore Section 2 of the Application Act of 1937 was held to be patently unconstitutional being manifestly arbitrary.

 

Two recent judgments of the Supreme Court in State of T.N. v. K. Shyam Sunder[35] and A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy[36] reiterated the legal position that even legislative provisions can be struck down if found to be arbitrary and resultantly violative of Article 14. Vide paras 52 and 53, the Supreme Court in K. Shyam Sunder[37] observed as follows:

  1. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group[38], this Court held that:

205. Arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness.”

  1. In Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board[39] and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd.[40], this Court held that a law cannot be declared ultra vires on the ground of hardship but can be done so on the ground of total unreasonableness. The legislation can be questioned as arbitrary and ultra vires under Article 14. However, to declare an Act ultra vires under Article 14, the court must be satisfied in respect of substantive unreasonableness in the statute itself.

 

In the same vein, the Supreme Court vide para 29 in A.P. Dairy Development Corpn.[41] reiterated the legal proposition as follows:

  1. It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of the legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires Article 14 of the Constitution.

 

Completing the whole picture on the issue, it is luminescent that there is no inhibition for the constitutional courts to resort to arbitrariness doctrine for striking down any legislative enactment or provision. I am deliberately avoiding reference to a long line of judgments (more than 10 in number) where the Supreme Court in the last 10 years has struck down statutory provisions of any enactment on being found unreasonable, harsh, oppressive, onerous and resultantly arbitrary. It struck down legislative provisions on being found arbitrary even if not strictly discriminatory.

 


Article 14 and the Time Machine: Initial Judicial Responses


After an indepth analysis and scrutiny of correlation between “arbitrariness doctrine” and its applicability to legislative action, we shall undertake discussion on the specific topic as to how far passage of time can be a testing criteria for the validity of any legislation or legislative provision. In other words, whether any statutory provision which was constitutional to start with at the time of its enactment can be struck down on the ground of arbitrariness with the efflux of time; what impact “time as a factor” has on the applicability of arbitrariness doctrine to any legislative provision or enactment. Under these subheadings we shall be referring to some of the landmark judgments of the early decades of the 1950s, 60s and the 70s, wherein through various judgments of the Supreme Court, the constitutionality of any legislative provision was anchored on the tide of time as the testing criteria.

The first in the fray is the Constitution Bench judgment of the Supreme Court in Bhaiyalal Shukla v. State of M.P.[42] In this case the petitioner who was a government contractor challenged the levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts. Levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts, in District Rewa, which was falling under formerly State of Vindhya Pradesh, specifically after merger of that area in the newly constituted State of Madhya Pradesh formed on 1-11-1956 under the States Reorganisation Act. The sale of building materials in works contract was not subject to any levy of sales tax in another part of (the newly constituted) State of Madhya Pradesh. However the Court rejected the said contention holding that “the laws in different portions of newly constituted State of Madhya Pradesh were enacted by different legislatures and till they are repealed or altered by the newly constituted legislature, they shall continue to operate. Different laws in different parts of Madhya Pradesh, which were earlier part of a different demerged State which was earlier part of another State prior to its merger, would be sustained on the grounds of geographical classification arising out of historical reasons….”[43]

Thus in Bhaiyalal Shukla[44]  the Supreme Court did not directly answer the issue of effect of passage of time over validity of any legislation.

The next judicial milestone on the subject under discussion is State of M.P. v. Bhopal Sugar Industries Ltd.,[45] wherein the levy of agricultural income tax in Bhopal, formerly a part of Bhopal State was continued even post merger with the newly constituted State of Madhya Pradesh in 1956. In all other parts of the State, the levy was not being imposed on the identically placed landowners or assessees. The Supreme Court again referring to Section 119 of the States Reorganisation Act, 1956 held that differential treatment arising out of application of the laws pre-existing from the merger of said regions/States in the newly constituted merged State does not invite discrimination or offend equality clause under Article 14. However the Supreme Court acknowledged the impact “efflux of time” would have on the validity of any legislative provision, even though enacted with justifiable cause or reason on the date of its enactment, but later on becoming constitutionally pernicious for perpetuating a treatment not having reasonable cause or rational basis to support it. Vide para 7 (p. 6), the Constitution Bench of the Supreme Court held thus:

 

  1. This in the view of the High Court was unlawful because the State had since the enactment of the States Reorganisation Act sufficient time and opportunity to decide whether the continuance of the Bhopal State Agricultural Income Tax Act in the Bhopal region would be consistent with Article 14 of the Constitution. We are unable to agree with the view of the High Court so expressed. It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. That initially there was a valid geographical classification of regions in the same State justifying unequal laws when the State was formed must be accepted. But whether the continuance of unequal laws by itself sustained the plea of unlawful discrimination in view of changed circumstances could only be ascertained after a full and thorough enquiry into the continuance of the grounds on which the inequality could rationally be founded, and the change of circumstances, if any, which obliterated the compulsion of expediency and necessity existing at the time when the Reorganisation Act was enacted.

(emphasis supplied)

 

From the above observations it can safely be inferred that the Supreme Court delved upon the inevitable effect time would have on the validity of any legislation, especially in the context of its failure to pass the litmus test of “equal protection of laws” guaranteed under Article 14 of the Constitution of India. As would be detailed below, this jurisprudence has since thereafter been expanded again and again in various dimensions by the Supreme Court.

 

Another controversy which cropped up before the Constitution Bench of the Supreme Court in Narottam Kishore Deb Varman v. Union of India[46] was pertaining to the legality of Section 87-B of the Code of Civil Procedure, 1908. The provision under challenge required prior consent of the Central Government as a prerequisite for institution or trial of any suit against the ruler/maharaja of any State/Province, which got merged with the Indian Union. Though the Supreme Court repelled the constitutional challenge to validity of Section 87-B for historical and geographical justifications produced before it including the protection adumbrated under Article 372 of the Constitution of India. However at the same time, after affirming the constitutionality of Section 87-B, the Supreme Court required the Central Government to review and re-examine the extent of period to which the said protection of prior consent of the Central Government to be available as against the said provision being there on the statute book in perpetuity. Vide para 11, the Constitution Bench held thus:

 

  1. Before we part with this matter, however, we would like to invite the Central Government to consider seriously whether it is necessary to allow Section 87-B to operate prospectively for all time. The agreements made with the rulers of Indian States may, no doubt, have to be accepted and the assurances given to them may have to be observed. But considered broadly in the light of the basic principle of the equality before law, it seems somewhat odd that Section 87-B should continue to operate for all time. For past dealings and transactions, protection may justifiably be given to rulers of former Indian States; but the Central Government may examine the question as to whether for transactions subsequent to 26-1-1950, this protection need or should be continued. If under the Constitution all citizens are equal, it may be desirable to confine the operation of Section 87-B to past transactions and not to perpetuate the anomaly of the distinction between the rest of the citizens and rulers of former Indian States. With the passage of time, the validity of historical considerations on which Section 87-B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge.

 

Next in the series is the Constitution Bench judgment of the Supreme Court in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Department[47]. As in the earlier cases, the dispute in this case also arose out of the reorganisation of States in various parts of the country in 1956. The South Kanara District, formerly a part of State of Madras was reconstituted to be merged with the State of Mysore (now Karnataka) in 1956, and by reason of Section 119 of the States Reorganisation Act, Madras Hindu Religious and Charitable Endowments Act, 1951 continued to apply to South Kanara District nonetheless when it ceased to be part of erstwhile State of Madras. The challenge to applicability of Endowments Act of 1951 was mounted on the ground that South Kanara District was the only district in the whole State of Mysore (now Karnataka), which continued to be governed by the Madras State enactment, which was thus starkly offensive of Article 14.

 

The Supreme Court on the point of “time” rendering the purpose of any legislation ineffective or constitutionally offensive referred to celebrated Latin maxim of “cessante ratione legis cessat ipsa lex”, that is, “reason is the soul of the law and when the reason of any particular law ceases, so does the law itself”. It held that an indefinite extension and application of unequal laws for all times to come starts militating against the true character and laudable intent of being a “temporary measure” to serve a “temporary purpose”. Though the challenge to the constitutionality was repelled by the Supreme Court, but the majority speaking through Justice Y.V. Chandrachud reminded the legislature to wake up timely to the altered necessities of time. The majority opinion directing for suitable tailoring of the legislative provisions, lest it would lead to enactment being left vulnerable to constitutional attack observed vide para 31 of H.H. Shri Swamiji case48 thus:

 

  1. But that is how the matter stands today. Twenty-three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation – apart from two abortive attempts in 1963 and 1977 – to remove the inequality between the temples and mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the district of South Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the district of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem.

 

From the narrative of the various judgments in the early decades of the 20th century, it can safely be inferred that indefinite extension and application of unequal laws militates against their real character as also the true intent behind their enactment. The strong foundation on which the edifice of any legislation is erected gets weakened with the passage of time if inequality amongst equals continues unabated without sufficient justifications for continuing them. The Supreme Court has always batted for timely reviews and introspections of such categories of legislations, failing which the legislations are bound to become discriminatory and arbitrary attracting the wrath of Article 14.

With this, we are nearing completion of Part II of the three part series article. Part III of the series, which shall also be the concluding part, shall delve into the remaining issues of “obsolescence as a ground for arbitrariness” of any legislation and the extant position of law on the said proposition.


†Advocate practising at Madhya Pradesh High Court and Supreme Court of India. He specialises in Constitutional Law Matters.

†† Final Year Student, B.A.LL.B (Hons.),  National Law Institute University (NLIU), Bhopal.

[1] (1974) 4 SCC 3 : AIR 1974 SC 555.

[2] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[3]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

[4]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

[5] (2017) 9 SCC 1.

[6] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[7] (1996) 3 SCC 709, 737-38 : AIR 1996  SC 1627.

[8] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[9] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[10] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[11] (1981) 1 SCC 722 : AIR 1981 SC 487.

[12] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[13] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[14] (1978) 1 SCC 248 : AIR 1978 SC 597.

[15] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[16]  (1978) 4 SCC 494, 518-19 : AIR 1978 SC 1675.

[17]  (1970) 1 SCC 248.

[18] (1978) 1 SCC 248 : AIR 1978 SC 597.

21 (1996) 3 SCC 709 : AIR 1996  SC 1627.

[19] (2017) 9 SCC 1.

[20] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[21] (1983) 2 SCC 277.

[22]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

25 (2017) 9 SCC 1, 87 & 88-89.

[23] (1983) 2 SCC 277.

[24] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[25] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[26] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[27] AIR 1950 SC 27 : 1950 SCR 88.

[28] (1970) 1 SCC 248.

[29] (1978) 1 SCC 248 : AIR 1978 SC 597.

[30] (2001) 2 SCC 386.

[31] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[32] (2017) 9 SCC 1.

[33] (2017) 9 SCC 1.

[34] (2017) 9 SCC 1.

[35] (2011) 8 SCC 737.

[36] (2011) 9 SCC 286.

[37]  (2011) 8 SCC 737, 767.

[38] (2006) 3 SCC 434 : AIR 2006 SC 1489.

[39] (2007) 6 SCC 668 : AIR 2007 SC 2276.

[40] (2009) 5 SCC 342 : AIR 2009 SC 2337.

[41] (2011) 9 SCC 286, 303.

[42] AIR 1962 SC 981 : 1962 Supp (2) SCR 257.

[43] AIR 1962 SC 981 : 1962 Supp (2) SCR 257, para 18.

[44]  AIR 1962 SC 981 : 1962 Supp (2) SCR 257.

[45] AIR 1964 SC 1179 : (1964) 6 SCR 846.

[46] AIR 1964 SC 1590 : (1964) 7 SCR 55.

[47] (1979) 4 SCC 642 : AIR 1980 SC 1.

48 (1979) 4 SCC 642, 659 : AIR 1980 SC 1, 18.

Experts CornerSiddharth R Gupta

“So diverse and adverse are the decisions of different High Courts, and of the same High Court, that in examining cases, as precedents by which to try a suit, the lawyer encounters a perpetual change of cloud and sunshine, and occasionally a real thunderstorm, succeeded by a burning sun. What was law at one time, is not law now – what is law in one place, is not in another – locality, individuality, prejudice, and perpetual change, characterise the decisions of Judges learned in the law.”

Levi Carroll Judson

(American Jurist)

Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time.

Henry Ward Beecher

(American Congregationalist Clergyman, Social Reformer and Speaker)

 

The 3-part series of this article attempts to dive deep into “arbitrariness as a testing criteria” for examining the validity and constitutionality of any legislative enactment. In other words, how far “arbitrariness as an independent ground” can be a reason for the constitutional courts to strike down any law having become a havoc for Article 14 of the Constitution of India. A priori, we would have a peep into how the concept of arbitrariness has been expanded to be made applicable to parliamentary/State enacted legislations for nullifying them through the sword  of Article 14. The article which shall be split in 3 parts, shall be compartmentalised into the following sub-sections:

  1. Jurisprudence of Arbitrariness: Origins and Growth up to Royappa.
  2. Unconstitutionality of Legislative Provisions vis-à-vis
  3. Distortion in McDowell and its Resurrection in Shayara Bano.
  4. Article 14 and the Time Machine: Initial Judicial Responses.
  5. Obsolescence as a Ground for Arbitrariness and Unconstitutionality.
  6. Outdated Legislations in the Context of K.S. Puttaswamy.
  7. Scrutiny of Certain Legislations as Being Obsolete and Resultantly Unconstitutional.

 


Jurisprudence of Arbitrariness in India: Origins and Growth up to Royappa


Most of us understand the roots of “concept of arbitrariness” to be originating from the celebrated judgment of E.P. Royappa v. State of T.N.[1] and its intertwining with other pillars of Part III viz. Articles 19, 21 and 32 of the Constitution of India. However very few of us are actually aware that E.P. Royappa[2] had merely enamoured the content of Article 14 with “concept of arbitrariness” in a well-articulated expression, in a way never done before. The Supreme Court in E.P. Royappa[3] in fact did not actually discover “arbitrariness” in Article 14 for the first time, but had elegantly woven the same thing said before, but on different occasions and in different judgments. We will explain how.

 

Article 14 has its reflection in the Preamble to our Constitution, the relevant portion of which reads “Equality of Status and of Opportunity”. It is a hybrid amalgam of two different species of equality viz:

(a) Equality before law – (concept borrowed from the UK Constitution).

(b) Equal protection of law – (concept borrowed from 14th Amendment to the US Constitution).

 

The theory of classification adopted by American Courts was a corollary to the concept underlying equality clause, namely, that a law must operate alike on all persons under like circumstances. In fact, the latter component of Article 14 was the reason for the evolution of the concept of “classification”.

 

The celebrated dissent of Justice Subba Rao in State of U.P. v. Deoman Upadhyaya[4] stated that Article 14 comprises both “positive content” as well as “negative content”. Whereas, equality before the law is a negative content, equal protection of the laws exhibits a positive content of Article 14. In this case, the accused Deoman was convicted for offence of murder by the Sessions Court, Gyanpur. The challenge to the conviction arose on the inherent anomaly in Section 27 of the Evidence Act, 1872 making inadmissible the statements of persons under the presence of a police officer, but not actually in police custody. The statement by Deoman purportedly was made in the presence of the police officer and therefore benefit of Section 27 was being pleaded by the accused. The Constitution Bench affirmed the classification of accused persons separately between those actually in police custody and those with police personnel present around them as reasonable. The Court though accepted that the statements may be confessional in nature, however separate treatment of both the categories of accused was found to be justified. Justice Subba Rao, however in his historic dissent accorded a different dimension and colour to Article 14, vide para 24, he has thus:

 

  1. … This subject has been so frequently and recently before this Court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that everyone is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. … So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.

 

In yet another landmark dissent in Lachhman Dass v. State of Punjab[5], Justice Subba Rao cautioned on imperceptible deprivation of Article 14 of its glorious content and shining aura, whilst emphasising too much on the doctrine of classification. The appellants in this case, were a joint Hindu family firm which has been carrying on business since 1911 in grains, dal, cereals, cotton ginning and pressing, oil manufacture and the like, in the erstwhile State of Patiala. The firm had an account called the cash credit account and used to borrow money in this account by pledging its stocks. In 1951-1952 there was a heavy slump in the prices of the commodities with the result that the amounts advanced by the bank on the security of the goods were very much in excess of the market prices thereof. To cover this shortfall the firm entered into an arrangement with the bank and it is this that formed the source of the litigation in this case. The bank sanctioned a loan on “demand loan account”. The amount payable under the demand loan account not having been paid by the appellants, the bank took steps to realise the same in accordance with the provisions of the Patiala Recovery of State Dues Act, 2002. The vires and constitutionality of this enactment was challenged before the Supreme Court on the ground that the Act and the Rules made thereunder became void on the coming into force of the Constitution as being repugnant to Articles 14 and 19(1)(f) and (g), and the proceedings taken under those provisions being illegal. Vide para 47, the dissenting opinion lent importance to the “positive content” under Article 14. Justice Subba Rao while discussing the scope of Article 14 in the aforementioned para, stated that:

 

  1. 47. … It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.

 

Perhaps the first landmark judgment which actually spotted the virtue of non-arbitrariness in Article 14 was S.G. Jaisinghani v. Union of India[6] . The Court, for the first time held “absence of arbitrary power” as sine qua non to rule of law with confined and defined discretion, both of which are essential facets of Article 14. Quoting the celebrated saying of Douglas, J., in United States v.  Wunderlich[7] :

  1. … when it has freed man from the unlimited discretion of some ruler…. Where discretion is absolute, man has always suffered.

 

It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion as Lord Mansfield stated it in classic terms in John Wilkes[8], Burr at p. 2539:

“… means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful….”

 

In Jaisinghani[9], the constitutional validity of seniority rule in regard to Income Tax Officers was challenged along with the improper implementation of the “quota” recruitment as infringing the guarantee of Articles 14 and 16(1) of the Constitution. Justice Subba Rao (this time majority opinion) elaborating on the wide expanse of Article 14 , vide para 14 held thus:

  1. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

 

Another milestone in the development of the concept of arbitrariness in State of Mysore v. S.R. Jayaram[10] wherein the constitutional validity of Rule 9(2) of the Mysore Recruitment of Gazetted Probationers Rules, 1959 was challenged. Under the first part of the said Rule 9(2), the candidates were provided preferential claim to appointment as per their place on the merit list subject to certain reservations for SC/STs and OBCs. The latter part however vested upon the Government the right of making appointment of any candidate to any particular cadre as it deemed suitable at its discretion. This part of the rule was assailed as arbitrary as can be gleaned from the submissions of the counsels appearing from the petitioner therein. The Constitution Bench of the Supreme Court examining the challenge to Rule 9(2) resorted to the principle of “conferment of arbitrary powers”. Arbitrariness was construed in the judgment of S.R. Jayaram[11]  as vesting of uncanalised and unguided discretion of the executive and thus opposed to positive content imbibed in Article 14 r/w Article 16.

 

Thereafter, in the celebrated judgment of Indira Nehru Gandhi v. Raj Narain[12], whilst dealing with the challenge to newly inserted clauses (4) and (5) to Article 329-A , the Constitution Bench of Supreme Court imported the concept of “inherent arbitrariness” in the amending Act to strike down the said clause (4). Whilst declaring clause (4) unconstitutional, the Court held that the amendment to the Constitution created a situation of vacuum with no law to be applied for deciding the dispute of election. The explicit opinion of Justice Chandrachud held that newly inserted clauses (4) and (5) to be arbitrary with the potential to altogether destroy the rule of law. Vide para 681, Justice Chandrachud in his concurring judgment employed the “rationale of arbitrariness”  to declare clauses (4) and (5) to be violative of Article 14. His observations ran thus:

  1. 681. It follows that clauses (4) and (5) of Article 329-A are arbitrary and are calculated to damage or destroy the rule of law. Imperfections of language hinder a precise definition of the rule of law as of the definition of “law” itself.[13]

From the above expositions, one would conveniently comprehend that the foundation stone as also the basic groundwork for embodiment of “concept of arbitrariness” as an essential attribute of Article 14 was laid much before the judgment of E.P. Royappa[14]. It would therefore be  prevaricating to state that concept of non-arbitrariness was expounded for the first time in the judgment of E.P. Royappa[15]. As would be detailed below, the Supreme Court in E.P. Royappa[16] just beautifully joined the dots together to meticulously articulate the negative correlation between arbitrariness and Article 14. E.P. Royappa had challenged the validity of his transfer from the post of Chief Secretary, first to the post of Deputy Chairman, State Planning Commission and thereafter as Officer on  Special Duty as violative of his Articles 14 and 16  rights. The assail rested on mala fide exercise of power by the State with an inferior officer being appointed to the position of Chief Secretary, overlooking the seniority of petitioner Royappa therein.

 

The stage was thus set in the peculiar constitutional facts for the constitutional prodigy Justice P.N. Bhagwati who despised any attempt to “crib, cabin or confine” the unlimited reach of Article 14. Vide para 85, speaking for the majority, Justice Bhagwati held[17]:

  1. 85. … Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.

 

Thus in E.P. Royappa[18], the concept of arbitrariness came to be formally embedded as a ground for striking down any legislative or executive action being antithetical to Article 14.

 


Unconstitutionality of Legislative Provisions vis-à-vis Arbitrariness


Post the verdict of E.P. Royappa[19], the Supreme Court found itself armed with a dynamic tool for testing the constitutionality of any legislative or executive action on the touchstone of arbitrariness. The substantive right of “equal protection of law” came to be acknowledged as synonymous to a substantive right and protection against “arbitrariness per se”. Though Seervai in his treatise on Constitutional Law of India[20] has argued that the new doctrine of arbitrariness “hangs in the air” as it is propounded without reference to the terms in which the right to “equal protection of laws” is conferred. Courts have misunderstood the relation between “arbitrariness” and “discrimination”. From the Supreme Court’s reasoning, it appears that “arbitrarness” involves a voluntary action of a person on whom the arbitrary power has been conferred. However, according to Seervai, one cannot attribute will or intention to a legislature. Whatever violates equality is not necessarily arbitrary, though arbitrary actions are ordinarily violative of equality.

 

Equality vis-à-vis arbitrariness was further polished and fleshed out in the celebrated judgment of Maneka Gandhi v. Union of India[21], where the Supreme Court held that the trinity of three articles i.e. Articles 14, 19 and 21 fertilise and cultivate each other mutually. The Court correlated the principle of reasonableness under Article 19 with non-arbitrariness under Article 14 with substantive due procedure under Article 21.

 

The Supreme Court thereafter in A.L. Kalra v. Project and Equipment Corpn. of India Ltd.[22] and D.S. Nakara  v. Union of India[23] accorded new dimension to Article 14 by holding that arbitrariness does not always require a comparative/relative evaluation between two persons for recording a finding of  discriminatory treatment. The Court held in absolute terms that an action per se arbitrary, (even in the absence of any correlation with any other similarly circumstanced person) shall be violative of second part of Article 14. Kalra[24] thus impliedly extended the  applicability of non-arbitrariness to legislative action as well.

 

Thereafter, in Ajay Hasia v. Khalid Mujib Sehravardi[25], the Constitutional Bench of the Supreme Court (five Judges) in no uncertain terms, held the concept of reasonableness and non-arbitrariness to be applicable even to legislative actions. Vide para 16, the Court speaking through Bhagwati, J. held thus:

  1. … Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.

 

Thus, the collateral nurturing of the doctrine of non-arbitrariness and reasonableness throughout for both legislative as well as executive actions, cannot be said to be confined only to the latter. It would therefore, be a constitutional fallacy to state that arbitrariness applies only to executive actions and not to legislative actions. This is evident from the analysis of the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 in K.R. Lakshmanan v. State of T.N.[26] on the touchstones of arbitrariness and unreasonability. The Madras Race Club, a limited liability company registered under the Companies Act, 1956, was formed in the year 1896 by taking over the assets and liabilities of the erstwhile unincorporated club known as Madras Race Club. Race meetings were held in the club’s own race course for which bets were made inside the race course premises. The Tamil Nadu Legislature enacted law by bringing horse racing under the ambit of the definition of “gaming”. The said law was challenged by the club on the grounds that “chance” is a controlling factor in gaming which does not include games of skill like horse racing and thus the said enactment was unconstitutional. The Tamil Nadu Legislature during the pendency of the appeal however, enacted the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 (the 1986 Act) which provided for acquisition and transfer of the undertaking of the Madras Race Club on the basis of “public purpose and public good”. The said Act was challenged as violative of Articles 14 and 19(1)(g) of the Constitution of India being irrational and arbitrary. The Court struck down the legislative enactment for being arbitrary and discriminatory. The Supreme Court in Lakshmanan[27] thus established beyond any cavil of doubt that a legislative enactment could be assailed as being arbitrary. This proposition however, stood distorted later owing to an erroneous interpretation of Article 14 subsequently by a lesser Judge Bench (3 Judges) in State of A.P. v. McDowell & Co.[28]

 

The remaining discourse on the subject shall continue in Part II of this article to follow after a short while.


† Siddharth R. Gupta is an Advocate practising at Madhya Pradesh High Court and Supreme Court of India. He specialises in constitutional law matters.

†† Final year student, BA LLB (Hons.),  National University of Study and Research in Law  (NUSRL), Ranchi.

[1]  (1974) 4 SCC 3 : AIR 1974 SC 555.

[2] (1974) 4 SCC 3 : AIR 1974 SC 555.

[3] (1974) 4 SCC 3 : AIR 1974 SC 555.

[4] (1961) 1 SCR 14 : AIR 1960 SC 1125.

[5] (1963) 2 SCR 353 : AIR 1963 SC 222.

[6] (1967) 2 SCR 703 : AIR 1967 SC 1427.

[7]1951 SCC OnLine US SC 93 : 96 L Ed 113 : 342 US 98 (1951).

[8]R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327.

[9] (1967) 2 SCR 703 : AIR 1967 SC 1427.

[10] (1968) 1 SCR 349 : AIR 1968 SC 346.

[11] (1968) 1 SCR 349 : AIR 1968 SC 346.

[12] (1975) 2 SCC 159.

[13] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, 258.

[14] (1974) 4 SCC 3 : AIR 1974 SC 555.

[15] (1974) 4 SCC 3 : AIR 1974 SC 555.

[16] (1974) 4 SCC 3 : AIR 1974 SC 555.

[17] E.P. Royappa case, (1974) 4 SCC 3, 38 : AIR 1974 SC 555.

[18] (1974) 4 SCC 3 : AIR 1974 SC 555.

[19] (1974) 4 SCC 3 : AIR 1974 SC 555.

[20] H.M. Seervai, Constitutional Law of India,  438 (paras 9.6 and 9.7 ), 4th Silver Jubilee Edition, 1991.

[21] (1978) 1 SCC 248 : AIR 1978 SC 597.

[22] (1984) 3 SCC 316 :  AIR 1984 SC 1361.

[23](1983) 1 SCC 305 : AIR 1983 SC 130.

[24] (1984) 3 SCC 316 :  AIR 1984 SC 1361.

[25] (1981) 1 SCC 722, 741 : AIR 1981 SC 487.

[26] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[27] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[28] (1996) 3 SCC 709 : AIR 1996  SC 1627.

Op EdsOP. ED.

“Democracy is a ceaseless endeavour. Democracy is a work in progress.”

— Nani Palkhivala

Introduction

Lawyers are frontline defenders of the Constitution of India and, more than anyone else, require the protection as whistleblowers in court. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority that is vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into whole different area. Legitimate criticism of ruling is permissible but on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution.

Lord Denning, in 1968, Britain’s former master of rolls, had this to say to the law of contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.  For there is something far more important at stake. It is no less than freedom of speech itself.” It is the right of every man, in Parliament or out of it, in press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. We must rely on our own conduct itself to be its own vindication[1].

Brief history

The origin of the law of contempt of courts in India can be traced back from the period of Ramayana and Mahabharata, where the courts were called as sabha and the king was called as sabhapati. Here the judicial function was administered by the sabhapati and justice has to be delivered as per the dharma. And at that time whosoever vilify the decision of sabhapati, would be liable for punishment. In ancient times the said law of contempt was used to maintain the dignity and integrity of the sabha and sabhapati and is not in codified form. It varies from empire to empire and king to king. As it is not codified, the meaning of contempt carries different meanings and interpretations as per religion and dharma.

As today, we call it that the origin of contempt of courts in India can be traced from England law but India has developed this concept and can be traced back from history. In England the Supreme Courts of Record from early times exercising the power to punish the contemnors who scandalises the Courts or Judges. This right was first recognised by the judicial committee of the Privy Council which observed that the offence of the contempt of court and the powers of the Indian High Courts to punish it are same as in the Supreme Court in England. The first Indian statute on the law of contempt i.e. the Contempt of Courts Act was passed in 1926.

Contempt and its objective

The Contempt of Courts Act, 1971 comes into existence on 24-12-1971 with an objective to define and limit the powers of certain courts in punishing contempt of court and to regulate their procedure in relation thereto. Which means contempt jurisdiction enjoyed by the courts is only for the purpose of upholding the majesty of the judicial system that exists. While exercising this power, the court must not be hypersensitive or swung by emotions, but must act judiciously[2].

Contempt is defined under Section 2(a)[3] of the Contempt of Courts Act, 1971 which says “contempt of court” means civil contempt or criminal contempt. Whereas “civil contempt” is defined under Section 2(b) which means wilful disobedience to any judgment decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to court. And on the other hand, “criminal contempt” is defined under Section 2(c) which means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

  1. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner[4].

Any wilful disobedience of court order to do or abstain from doing any act is a civil contempt. Civil contempt arises when the power of the court is invoked or exercised to enforce obedience to court orders.[5] On the other hand, criminal contempt is criminal in nature. It includes defiant disobedience to the Judges in the court, outrages of Judges in open court, libels on Judges or courts or interfering with the course of justice or an act which tends to prejudice the course of justice.

A person is guilty of a criminal contempt when his conduct tends to bring the authority and administration of law into disrespect or tends to interfere with or prejudice litigants during litigation[6].

Let’s take an example for better understanding the concept of contempt of court. Let’s assume a situation where the impact of contempt is of that nature, where a common man lost his faith in the judiciary. Let’s say, otherwise for a common man, if the local MLA came and getup and abuse the court, what respect the common man will have for the institution because the said MLA effectively taken away one important pillar of democracy.

As per the observations of Justice Wilmot in R. v. Almon[7] made as early as in 1765:

“… And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of Judges, as apricate individuals, but because they are the channels by which the King’s justice is conveyed to the people.”

Constitution of India and contempt of court

It is very conflicting in nature and difficult to understand that whether the law relating to the contempt of court is somewhere touches two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of speech and expression or not?

There is a very thin line between criticism and vilification. One of the basic principles of independence is that you are free to do anything which does not intervene in my independence. The same goes to determine whether it is a contempt or not? If you are criticising, it is valid but if you are vilifying or tried to degrade the integrity of the institution then it is a contempt.

  1. Article 129[8] – Grants Supreme Court of India, the power to punish for contempt of itself.
  2. Article 142(2)[9] – Enables the Supreme Court of India, to investigate and punish any person for its contempt.
  3. Article 215[10] – Grants every High Court the power to punish for contempt of itself.

Note: That the source of power of Supreme Court of India, to punish for its contempt is not from Section 15[11] of the Contempt of Courts Act, 1971 but it flows from Articles 129 and 142(2) of the Constitution of India.

The Supreme Court has emphasised upon the need for the contempt of court in the following words:

Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearless is the source of existence of civilisation in society. The writ issued by the court must be obeyed. It is the binding efficacy attaching with the commands of the court and the respect for the orders of the court which deter the aggrieved persons from taking the law into their own hands because they are assured of an efficacious civilised method of settlement of disputes being available to them wherein, they shall be heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the court is therefore viewed with the concern of the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.[12]

The Supreme Court exercises this power to punish an act which tends to interfere with the course of administration of justice. The following inter alia have been held to constitute contempt of court: [13]

  1. Insinuations derogatory to the dignity of the court which are calculated to undermine the confidence of the people in the integrity of the Judges.
  2. An attempt by one party to prejudice the court against the other party to the action.
  3. To stir up public feelings on the question pending for decision before court and to try to influence the Judge in favour of himself.
  4. An attempt to affect the minds of the Judges and to deflect them from performing their duty by flattery or veiled threat.
  5. An act or publication which scandalises the court attributing dishonesty to a Judge in the discharge of his functions.
  6. Wilful disobedience or non-compliance of the court’s order.[14]

In several cases, private parties violating or flouting the Supreme Court orders have been held guilty of contempt of court:

  1. Gomti River water was being polluted due to discharge of effluents from the distillery of a company. The Supreme Court ordered the company to remove deficiencies in the effluent treatment plant by a certain due date. The company failed to do so and yet kept on running its plant. The Court ruled that violation of the court order by the company was deliberate and pre-planned indicating a defiant attitude on its part. The Court imposed a fine of Rs 5 lakhs on the company which amount was to be utilised for cleaning of the Gomti River.[15]
  2. An article in a newspaper, criticising a Supreme Court decision, attributing improper motives to the Judges and seeking to create an impression in the public mind that the Supreme Court Judges act on extraneous considerations in dealing cases has been held to constitute court’s contempt. The Court has stated that if an impression were created in public mind that the Judges in the highest court act on extraneous considerations in deciding cases, public confidence in the administration of justice would be undermined and no greater mischief than that could possibly be imagined.[16]

Note: Contempt of court is a matter between the court and contemnor and hence, held, third parties cannot intervene. Intervention applications are thus not maintainable.[17]

Supreme Court and the Contempt of Courts Act, 1971

As per the Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975[18]. In case of contempt other than the contempt referred to in Rule 2, the Court may take action:

  1. Suo motu; or
  2. On a petition made by Attorney General, or Solicitor General; or
  3. On a petition made by a person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.

A bare reading of Rule 3 helps us understand that there are 3 ways for initiating contempt proceedings. The first is suo motu, the second is the petition made by the Attorney General or the Solicitor General, and the third is on the basis of a petition made by any person and where criminal contempt is involved then the consent of the Attorney General or the Solicitor General is necessary.

As in necessary to understand that the Supreme Court of India is the supreme authority and the powers for the contempt of itself is a constitutional power vested to this Court, such power cannot be abridged or taken away even by legislative enactment. Whereas on the other side the Contempt of Courts Act, 1971 is a legislative enactment.

Although the law of contempt is largely governed by the Contempt of Courts Act, 1971. It is now settled law in India that the Supreme Court and the High Courts derive their jurisdiction and power from Articles 129 and 215 of the Constitution of India. This situation results in giving scope to “judicial self-dealing”.

It is the saying of the Supreme Court of India that a scurrilous attack on a Judge, in respect of a judgment or past conduct has in our country the inevitable effect on undermining the confidence of the public in the judiciary; and if confidence in judiciary goes administration of justice will definitely suffers[19].

Permissible limit in the eyes of law

 Scandalising a Judge as a Judge is different from scandalising a Judge as an individual. The abovementioned assertions bring both freedom of speech and expression and contempt of court, in conflict, on one side of the coin, freedom of fairly and reasonably criticising judiciary increases its accountability but on the other side of the coin, the power of punishing contempt of court ensures free and non-obstructed administration of justice. When the proceedings are taken for vilification of the Judge, the question which the Court has to determine is whether the vilification is of the Judge as a Judge or it is a vilification of a Judge as an individual. That if the vilification of the Judge is as an individual, then he is left to his private remedies and the Court has no power to punish for contempt. In the former case, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt.[20]

A distinction is drawn between a mere libel or defamation of a Judge personally and what amounts to a contempt of court. A mere defamatory attack on a Judge is not actionable but it becomes punishable when it is calculated to interfere with the due course of justice, or the proper administration of law by the Court. Alternatively, the test is whether the wrong is done to the Judge personally, or it is done to the public.[21]

A fair, reasonable, temperate and legitimate criticism of the judiciary, or of the conduct of a Judge in his judicial capacity is permissible. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into a whole different area. Legitimate criticism of a ruling is permissible and on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution. That has to be where we stop, that is where the freedom of speech ends. Anything that/which undermines the institution rather than criticises the institution that is where you cross the bounds of legitimacy.

In Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago[22], the court said “… no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

Although Section 5 of the said Act states that fair and reasonable criticism is not to be termed as a contempt of court. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided[23]. Judgments are open to criticism that must be done without casting aspersions on the Judges and the courts and without adverse comments amounting to scandalising the courts[24]. Actual interference with the course of administration of justice is not necessary, it is enough if the offending publication is likely on if it tends in any way to interfere with the proper administration of law[25].

Note: That a contempt petition cannot be withdrawn by the petitioner as a matter of right. The matter is primarily between the court and the contemnor. It is, therefore, for the court to allow or to refuse withdrawal in the light of the broad facts of the case and more particularly whether respect for judicial process would be enhanced or reduced by the grant or refusal of withdrawal. It is for the court to determine whether the act complained of tending to scandalise the court if viewed with certain severity with a view to punishing the person would in the larger interest of the society enhance respect for the judicial process, or too sensitive attitude in such matter may even become counterproductive. The power to commit for contempt of court has to be exercised with greatest caution.

Conclusion

At last, I would like to conclude from the golden words of Lord Atkin in Andre Paul Terence Ambard v. Attoney General of Trinidad and Tobago[26] “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

In the free market place of ideas criticisms about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice. As one should know where to stop and when to stop, as there is a very thin line difference between criticism and vilification. If one has the right to freedom of speech and expression as their fundamental right on one side then he has the duty/obligation to maintain dignity and integrity of the institution on the other side, as the freedom of speech and expression is not an absolute right it can be taken away in case someone tries to cross the justifiable limit permitted by the law of land.

For instance, if I fight a case and I loose, I should have the confidence to accept that I tried my case but it went wrong. I should not go home thinking the Judge was worried about what newspaper would say and that is why he decided against me. The day I get that feeling you have eroded my faith in judiciary.


Advocate, e-mail: adv.nihitsinghal@gmail.com.

[1] Lord Denning in Reg. v. Commr. of Police of the Metropolis, ex p, Blackburn, (1968) 2 QB 150.

[2] W.B. Administrative Tribunal  v. S.K. Monobbor Hossain, (2012) 11 SCC 761.

[3] <http://www.scconline.com/DocumentLink/IB5rg5rZ>.

[4] The Contempt of Courts Act, 1971.

[5] DDA v. Skipper Construction, (1995) 3 SCC 507.

[6] DDA v. Skipper Construction, (1995) 3 SCC 507.

[7] 1765 Wilm 243 : 97 ER 94.

[8] <http://www.scconline.com/DocumentLink/aMeb67Y3>.

[9] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[10] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[11] <http://www.scconline.com/DocumentLink/Pu75QPE4>.

[12] Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171.

[13] Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.

[14] Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508.

[15] Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714.

[16] Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215.

[17] Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551.

[18] Vide G.S.R. 368(E), dated 27-5-2014, published in the Gazette of India, Extra., Pt. II, S. 3(i), No. 287, dated 29-5-2014 <http://www.scconline.com/DocumentLink/zMvdG5rb>.

[19] C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626.

[20] Baradakanta Mishra v. Registrar of the Orissa High Court, (1974) 1 SCC 374.

[21] Rustom Cowasjee Cooper v. Union of India, (1970) 2 SCC 298.

[22] 1936 SCC OnLine PC 15 : (1936) All ER 704.

[23] S. 5, The Contempt of Courts Act, 1971.

[24] Advocate General v. Abraham George, 1975 SCC OnLine Ker 83 : 1976 Cri LJ 158, 161.

[25] Hira Lal Dixit v. State of U.P., (1955) 1 SCR 677.

[26] 1936 SCC OnLine PC 15 : (1936) All ER 704.

Case BriefsHigh Courts

Gauhati High Court: Soumitra Saikia, CJ., dismissed a petition which was filed challenging the provisions under Rule 12(3)(iv) of the Assam Secondary Education (Provincialised Schools) Rules, 2018 which provided one of the conditions necessary for being eligible for the post of Principal in Higher Secondary Schools and Senior Secondary Schools in Assam.

“The candidate must have 17 years of teaching experience as Graduate Teacher in any Higher Secondary School.”

The Court found that petitioners did not have the experience of 17 years as Graduate Teachers in Higher Secondary Schools but they have the said experience of 17 years as Graduate Teachers in High Schools. All the same, if their experience as Graduate Teachers in High Schools is also to be included, they would come within the eligibility criteria and, therefore, on various grounds including violation of Article 14 of the Constitution of India, the present writ petition had been filed.

It was however informed to the Court that during the pendency of the petition said Rules have been amended and that even Graduate Teachers having 17 years’ experience in High Schools have been made eligible. Petitioners after this information submitted that petition itself has become infructuous and the same may accordingly be dismissed.

The Court dismissed the petition.[Samarjit Chanda v. State of Assam, 2021 SCC OnLine Gau 1876, decided on 01-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocate for the Petitioner: MR A K DUTTA

Advocate for the Respondent: SC, SEC. EDU.

Op EdsOP. ED.

Introduction

The sixth session of the 17th Lok Sabha came to an end two days ahead of the scheduled conclusion. Amidst the uproar and ruckus in the both Houses, the Lok Sabha could pass 17 Bills and Rajya Sabha passed 21 Bills. Beside the preparedness of the Government on the legislative transactions, all the members of Parliament and staffs were vaccinated to enable the smooth and safe conduct of the proceedings of the House. With all the arrangements in place, the continuous stalemates in the House have shaken the confidence of the people in the worthiness of the Parliament as deliberative chambers. Also, the disruptions have potentially caused a heavy dent in the public exchequer. Does the functioning of the Lok Sabha precondition upon the cooperation of the members in all situations? Or does the Speaker empowered to take punitive/corrective measures to inculcate discipline amongst the members? The write up attempts to answer the question by revisiting the power of the Speaker under the Constitution. Considering the colonial legacy of the office of the Speaker, the paper travels back in history to examine the position in the United Kingdom. The archival reference will help in delineating the power and function of the Speaker in India wherever there is a lack of clarity. Finally, it argues that the constitutional design disapproves stalemates and entrusts the responsibility upon Speaker to undertake the necessary measures needed to strengthen the faith of the people in Parliament.

Evolution of the office of Speaker

The understanding of the institution of Speaker owes its origin to the development of Speakership in Britain.[1] In the early days, the role of the Speaker in the British Parliament was that of an agent to the Crown. The Speaker served as an interface between the Parliament and the Crown. The Speaker’s role got redefined when the nature of the Parliament changed from that of an appointed body to an elected representative. By the mid-nineteenth century, it was the norm that the Speaker should be above party politics.[2] The office of the speaker in Britain underwent further changes to ensure the neutrality of the office. The Speaker of the House of Commons is required to stay away from political activities of her party on being elected to office and withdrawing from active politics after the end of her tenure.[3] The chief features of the Westminster speaker are impartiality and authority. Although elected under a political party label and functioning as an elected member of Parliament representing the interests of constituents, the speaker is expected to operate with complete impartiality.

Several Acts passed by the British Parliament during the pre-Independence years had decisive influence over the evolution of the office of the speaker.[4] Initially, the Governor-General was presiding the Legislative Council. In 1921, Sir Frederick Whyte, a former member of the British House of Commons was nominated as the First President of the Central Legislative Assembly by the Governor-General.[5] The first Indian to preside over the Central Legislative Assembly was Shri Vithalbhai Patel in 1925. Though the title of Speaker came in only with the gaining of independence, the institution of the Presiding Officer is thus fairly older, dating back to 1921.[6]

Speaker under the Constitution of India

Like the British counterpart, the office of the Speaker comes with great importance and prestige. He represents the House of the People and is the custodian of its dignity and authority. Probably the first thing after the oath of elected members which a new Parliament has to do is to elect a speaker. Lok Sabha is presided over by the Speaker of the House which members select among themselves.[7] Once appointed, he can be removed only by a resolution of the House passed by the majority of all the members of the House which applies to high constitutional offices viz. President, Vice-President, and the Judges of the Supreme Court.[8] She is also exempted from proceedings in any court of law with respect to any matter connected with her office[9]

Prime Minister Nehru had said that “The Speaker represents the House. He represents the dignity of the House the freedom of the House and because the House represents freedom and liberty. Therefore, it is right that, that should be honoured position, a free position and should be occupied always by men of outstanding ability and impartiality.”[10]

The Speaker draws power from the Constitution, rules of procedure, and conduct of business in Lok Sabha[11] and parliamentary conventions. The Speaker decides the permissibility of different motions such as adjournment motions and motions for short duration discussions decide upon by the Business Advisory Committee.[12] He assists members in holding the executive accountable. To maintain decorum in the House, the Speaker takes on the role of a disciplinarian with the power to suspend the members,[13] expunge the unparliamentary remarks[14], to adjourn the House[15]. The Speaker also performs a quasi-judicial role while hearing the matters of defection.[16] Though neutrality is the essence of the functioning of the office, the Speaker casts vote only in case of equality of votes.[17]

Additionally, a member of Parliament swears upon the oath that “I will faithfully discharge the duty upon which I am about to enter.”[18] The duty of parliamentarians is not codified under the Constitution. It is a matter of fact that the members are bestowed with a solemn duty to engage in discussion in the House and create an environment of accountability of the executive. The onus lies on the Speaker to enable the members to discharge the duty as envisaged in the Constitution.

In the last few decades, the judiciary emerges as the main institution to hold the executive accountable for its action or omission. No denial that the intervention by the judiciary has made a phenomenal impact in disciplining the executive. But the judicial process gets attracted only in a situation of the violation of the rights and the breach of the constitutional limits. Conversely, the sessions of the House present the platform to the parliamentarians to seek an explanation from the Government about its action or omission which apparently may not be unconstitutional.

Conclusion

Though the legislative transactions have taken place in the Parliament, the lack of debate on the passed Bills has deprived the countrymen to know the perspectives of different political parties. Also, as a law student, we are aware of the significance of the parliamentary debates in clarifying any ambiguity in the provisions of a law. The discourse and debate in the House not only reflect the connectedness of the parliamentarians with the electorates but also the accountability of the executive towards the legislature. Disruptions per se may not be impermissible considering the strength of the treasury benches. If disruptions become the order of the House, then the custodian of the Lok Sabha needs to invoke the necessary powers to restore the sanctity of the Parliament. It appears that the Speaker has been enveloped with requisite powers to run the session of the Parliament and any evasion to not to exercise the power strikes at the root of constitutional democracy. The Speaker is expected to assert all the power at her disposal and not to limit only to counsel the treasury and opposition benches to cooperate for the functioning of the House. Considering the amenities enjoyed by the members during the session of the House, it is incumbent upon the Speaker to ensure meaningful legislative transactions or to disallowance of the perks and perquisites to the parliamentarians. Continuous stalemate does not only display the failure of the parliamentary tradition but also dilutes the constitutional significance of the office of Speaker.


Registrar & Professor, Hidayatullah National Law University, Raipur, e-mail: uday@hnlu.ac.in. The views are personal.

[1] Raju, Deepak; Nair, Karth “Quit or Be Disqualified’: Does Continuing as Speaker Inviting Expulsion from One’s Party Warrant Disqualification Under the Tenth Schedule?” 2009 NUJS Law Rev. 7

[2] Speakers of the British House of Commons, genealogy project (2016). [online] geni_family_tree. Available at <http://www.geni.com/projects/Speakers-of-the-British-House-of-Commons/17949> accessed on 7-8-2021].

[3] National Democratic Institute for International Affairs, Presiding Officers: Speakers and Presidents of Legislatures, available at <https://www.ndi.org/files/031_ww_presiding_0.pdf> accessed on 7-8-2021.

[4] The Indian Councils Act of 1861, 1892, and 1909 established the Central Legislative Council and the Provincial Legislative Councils and introduced reforms subsequently.

[5] Speakers and Deputy Speakers of Kerala Legislative Assembly, Secretariat of Kerala Legislature Thiruvananthapuram, available at

<http://www.niyamasabha.org/codes/Speakers%20&%20Deputy%20Speakers%20Book%20Final.pdf> accessed on 7-8-2021>.

[6] Ibid.

[7]Art. 93 of the Constitution of India.

[8] Art. 94(3) of the Constitution of India.

[9] Art. 122 of the Constitution of India.

[10] D.D. Basu, Commentary on the Constitution of India, Vol. 4, (8th edn., 2008).

[11] Art. 118 of the Constitution of India.

[12] For instance, Motions under Rr. 56 and 193, Rules of Procedure of the Lok Sabha.

[13] Rr. 374 and 374-A, Rules of Procedure of the Lok Sabha.

[14] Rr. 352 and 378, Rules of Procedure of the Lok Sabha.

[15] Art. 100(4) of the Constitution of India.

[16] Tenth Schedule, Constitution of India.

[17] Art. 100(1) of the Constitution of India.

[18] Third Schedule of the Constitution of India.

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

OP. ED.SCC Journal Section Archives

Be you ever so high, the law is above you

—Thomas Fuller1

 

A reasoned order is a desirable condition of judicial disposal.2 The Supreme Court in exercise of its power under Article 136 of the Constitution dismisses the special leave petition arising out of the judgment/order of the High Court’s passed under the Income Tax Act, 1961 filed at the instance of Department/Revenue and/or the assessee by a non-speaking order in majority of the cases at the threshold. Is this course adopted by the Supreme Court not contrary to one of the facets of principles of natural justice, namely, recording of reasons in an order entailing adverse civil consequences? The present article is, therefore, a manifestation for two main reasons. The first being to try and understand the nature and power of the Supreme Court under Article 136 of the Constitution of India to pass orders by a non-speaking order and its effect on the justice delivery system at the hands of the High Courts in the absence of a speaking order by the Supreme Court. The second reason being to demonstrate that in view of the recognition of the principles of natural justice one of them being giving of reasons in support of an order by a administrative, quasi-judicial and judicial body, which by an interpretative process has come to be considered to be a part and parcel of Article 14 of the Constitution of India, would such a requirement be necessary by subjecting the power of the Supreme Court at the threshold while dismissing the special leave petition under Article 136 of the Constitution of the aggrieved party, whether it be the Department/Revenue or the assessee.

 

SCOPE AND POWER OF THE SUPREME COURT UNDER ARTICLE 136

Article 136 of the Constitution empowers the Supreme Court to grant special leave in its discretion against any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal except by any court or tribunal constituted by or under any law relating to the armed forces. It reads as under:

  1. Special leave to appeal by the Supreme Court.—(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

 

Article 136 does not define the nature of proceedings from which the Supreme Court may hear appeals, and therefore, it could hear appeals in any kind of proceedings whether civil, criminal, or relating to income tax, revenue or labour disputes, etc.3 Article 136 is worded in the widest terms possible and is discretionary in nature. It does not confer a right to appeal on a party to litigation; it only confers a discretionary power of widest amplitude on the Supreme Court to be exercised for satisfying the demands of justice. On one hand, it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations or situations occasioning gross failure of justice; on the other hand, it is an overriding power where under the Court may generously step in to impart justice and remedy injustice.4 Noticeably, the provisions of Article 136 of the Constitution opens with a non-obstante clause viz. “Notwithstanding anything in this chapter”. The power conferred on the Supreme Court by Article 136 is plenary in the sense that there are no words in Article 136 qualifying that power. It is a sweeping power, exercisable outside the purview of ordinary law to meet the purpose of satisfying the demands of justice.5 The scope of this special appellate jurisdiction of the Supreme Court is very flexible. There are no words in Article 136 itself qualifying the power of the Supreme Court. The matter lies within the complete discretion of the Supreme Court and the only limit upon it is the “wisdom and good sense of the Judges” of the Supreme Court.6 As rightly pointed out by Krishna Iyer, J.7, when extraordinary power under Article 136 chases injustice, sky is the limit. Thus, the Supreme Court while exercising power under Article 136, not only acts as a “court of law” but also as a “court of equity”8; and such a power is exercised for doing full and complete justice.

 

The jurisdiction conferred by Article 136 is divisible into two stages: first stage is up to the disposal of prayer for special leave to file an appeal and the second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. The legal position as summarised by the Supreme Court in Kunhayammed v. State of Kerala9 regarding the scope of two stages reads as under:

(a) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave.

(b) If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the court was not made out.

(c) If leave to appeal is granted, the appellate jurisdiction of the court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent.

(d) In spite of a petition of special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.10

 

The Supreme Court in Mathai v. George11 referred the matter to a Constitution Bench for laying guidelines governing its discretionary power under Article 136 of the Constitution by making the following observations:

  1. Article 136, no doubt, states that the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. However, it is not mentioned in Article 136 of the Constitution as to in what kind of cases the said discretion should be exercised. Hence, some broad guidelines need to be laid down now by a Constitution Bench of this Court otherwise this Court will be flooded (and in fact is being flooded) with all kinds of special leave petitions even frivolous ones and the arrears in this Court will keep mounting and a time will come when the functioning of this Court will become impossible. It may be mentioned that Article 136, like Article 226, is a discretionary remedy, and this Court is not bound to interfere even if there is an error of law or fact in the impugned order.

 

In the aforesaid case of Mathai11, the Hon’ble Supreme Court laid down the following circumstances under which power under Article 136 of the Constitution could be exercised:

(a) All matters involving substantial questions of law relating to the interpretation of the Constitution of India;

(b) All matters of national or public importance;

(c) Validity of laws, Central and State;

(d) To settle differences of opinion on important issues of law between High Courts;

(e) Where the Court is satisfied that there has been a grave miscarriage of justice; and

(f) Where a fundamental right of a person has prima facie been violated.

However, the Division Bench also mentioned in the order11 of reference clarifying that — it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised.

 

The Constitution Bench12 subsequently while reiterating that the powers conferred under Article 136 of the Constitution are discretionary, while declining to lay down any guidelines in view of its earlier decisions13, observed:

  1. Upon perusal of the law laid down by this Court in the aforesaid judgments, in our opinion, no effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion. In the interest of justice, in our view, it would be better to use the said power with circumspection, rather than to limit the power forever.
  2. In the circumstances, we do not see any reason to answer the issue which has already been answered in the aforesaid judgments. We are of the opinion that no further elaboration is required on the issue involved in this case. The special leave petition is dismissed as infructuous.14

(emphasis supplied)

 

DOCTRINE OF MERGER

The Supreme Court in Kunhayammed15 while referring to the stages governing the power to be exercised under Article 136 of the Constitution also dealt with the issue of merger vis-à-vis the question as to whether the dismissal of special leave petition would be construed as affirmation of the judgment of the High Court by the Supreme Court for which special leave petition was sought for, laid down the following principles by holding that:

(a) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law;

(b) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136, the Supreme Court may reverse, modify or affirm the judgment, decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can, therefore, be applied to the former and not to the latter;

(c) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed;

(d) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties; and

(e) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.16

Thus, where special leave petition is dismissed at the very first stage i.e. in limine, by non-speaking order under Article 136 of the Constitution, it does not constitute any law within the meaning of Article 141 of the Constitution of India and there is no merger of the order against which appeal had been preferred. However, where special leave petition is dismissed after assigning reasons, by virtue of the rule of discipline there is a declaration of law thereby attracting Article 141 of the Constitution of India without there being any merger. In case where leave is granted under Article 136 of the Constitution and upon conversion of civil appeal, the dismissal with or without reasons a binding precedent of the Supreme Court would come surface and merger takes place.

 

NEED OF RECORDING OF REASONS

Article 136 of the Constitution does not expressly provide for giving of reasons in support of an order passed by the Supreme Court at the first stage and/or at the second stage not to talk of any stage. Is the power of dismissal exercised by the Supreme Court by not passing a speaking order i.e. by not assigning reasons which is considered to be a third principle of natural justice, howsoever brief they may be in support thereof, at the first stage in particular, justified in law.

 

One of the fundamental maxims of natural justice which has taken its firm roots in Indian Law is audi alteram partem which has many facets. Two of them are: (a) notice of the case to be met; and (b) opportunity to explain which means opportunity of hearing. Due to rapid development and growth of constitutional law as well as administrative law, another principle of natural justice has also emerged; (c) speaking orders or reasoned decisions: all orders should be supported by reasons. Recording of reasons is a sole of justice and every order be it passed in exercise of the power which may be judicial, administrative or quasi-judicial must contain reasons in support thereof. Giving of reasons in support of an order is considered to be third principle of natural justice. An aggrieved party has a right to know the reasons in support of the decision. This is one of the cardinal principles of natural justice. Thus, it is the basic principle of law that every order passed by any administrative body or any quasi-judicial body and/or even by the judicial body must disclose the reasons. Summarising the law with regard to recording of reasons, in Kranti Associates (P) Ltd. v. Masood Ahmed Khan17, it was pronounced by the Hon’ble Supreme Court that:

(a) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(b) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(c) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(d) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(e) The ongoing judicial trend in all countries committed to the rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(f) Judicial or even quasi-judicial opinions these days can be as different as the Judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice-delivery system.

(g) Insistence on reason is a requirement for both judicial accountability and transparency.

(h) If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(i) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process.

(j) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the Judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor18.)

(k) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain19, EHRR at 562, para 29 and Anya v. University of Oxford20, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.

(l) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.21

 

Thus, the principles of natural justice have in recent years found an important place in Indian jurisprudence22 and in foreign jurisdictions23 as well, calculated to invest law with fairness and to secure justice; and have at the same time come to be recognised as being a part of the guarantee contained in Article 14 of the Constitution because of the new and dynamic interpretation given by the Hon’ble Supreme Court to the concept of equality which is the subject-matter of that article. The pertinent observations of the Hon’ble Supreme Court in Union of India v. Tulsiram Patel24 deserves to be noticed which reads here as under:

  1. 95. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14; therefore, a violation of principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of “State” in Article 12 is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.25

(emphasis supplied)

 

The principles of natural justice which have taken deep root in the judicial conscience of our people are now considered so fundamental as to be implicit in the concept of ordered liberty and therefore, implicit in every decision-making function, call it judicial, quasi-judicial or administrative. This principle holds good insofar as the statutory authorities are functioning under the Act and would also equally be applicable to the Supreme Court discharging judicial functions by virtue of the constitutional power under Article 136 while deciding a lis in any matter as it is its duty to uphold constitutional values and to enforce constitutional limitations, which being the essence of the rule of law stands stamped with natural justice.26

 

The applicability of Article 14 of the Constitution governing the judicial function performed by the Supreme Court although is a debateable issue27 on account of the fact that Supreme Court did not fall within the ambit of “State” or “Other Authorities” under Article 12 so as to attract Article 14 of the Constitution of India but irrespective of the controversy of application of Article 14 to judicial decisions rendered by the Supreme Court, the inviolable fundamental rights one of them being natural justice which is a part of basic structure of the Constitution would govern the very exercise of judicial power by the Supreme Court and as a result thereof the self-imposed limitation on the exercise of such a power would inhere in itself and subject to the principles of natural justice.

 

There is another aspect of the matter. Article 145 of the Constitution of India, inter alia, confers power on the Supreme Court to frame Rules with the approval of the President of India for regulating the practice and procedure regarding hearing of appeals and other matter pertaining to appeals including making rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III of the Constitution of India. The Rules framed under Article 145 and the provisions of Article 136 are silent about the observance of principles of natural justice and the silence is taken to imply compliance with the principles of natural justice i.e. speaking order to be passed under Article 136 by the Supreme Court as the orders entail civil consequences. By necessary implication in the absence of express exclusion of principle of natural justice i.e. speaking order governing the exercise of power either by the provisions of Article 136 or the Rules made under Article 145, the power in view of the principle of law enunciated in a catena of cases28 decided by the Hon’ble Supreme Court would be read into the interstices of the provisions of an enactment whereunder orders are passed which entails civil consequences. The said principle would equally be applicable for regulating a discretionary power conferred on an authority discharging judicial functions like the Supreme Court. A citizen is entitled to be under “the Rule of law and not the rule of discretion” and “to remit the maintenance of constitutional right to judicial discretion is to shift the foundations of freedom from the rock to the sand”.29

 

The following emphatic observations of Chinnappa Reddy, J., who delivered a concurrent judgment in National Textile Workers’ Union v. P.R. Ramakrishnan30 reinforce the necessity of speaking orders by Courts:

  1. Can courts say natural justice need not be observed by them as they know how to render justice without observing natural justice? It will surely be a travesty of justice to deny natural justice on the ground that courts know better.… Courts even more than administrators must observe natural justice.31

 

Thus, a non-speaking order passed by the Supreme Court under Article 136 of the Constitution affects the fundamental right of the affected party against whom an adverse order has been passed and, therefore, the unrestricted discretionary power in the Supreme Court would indeed be subject to passing of speaking order being an inherent constitutional limitation of such a power for maintaining rule of law in the sense that everything they did was within the framework of law thereby preventing not only abuse of discretionary power but uncertainty in law.

 

EFFECT OF NON-SPEAKING ORDERS OF THE SUPREME COURT

Non-speaking orders passed by the Supreme Court under Article 136 of the Constitution have adverse effect on the ongoing litigation in income tax matters. There are instances where the Supreme Court on the same substantial question of law where a view has been expressed by the High Court in favour of the assessee has dismissed the appeal of the Department/Revenue and in another case view taken by the High Court in the favour of Department/Revenue, the appeal of the assessee has been dismissed by the Supreme Court on a same very substantial question of law by a non-speaking order.

 

In CIT v. Orient Craft Ltd.32, a Division Bench of the High Court of Delhi expressed opinion in favour of the assessee on the question as to whether the assessing officer in the absence of any tangible material could reopen the assessment made under Section 143(1) of the Income Tax Act, 1961. The Department preferred a special leave petition against the said judgment before the Hon’ble Supreme Court under Article 136 of the Constitution which was dismissed33 by a non-speaking order. Subsequently, in Krishna Developers & Company v. CIT34, the High Court of Gujarat dissented from the view which had been expressed by the High Court of Delhi in Orient Craft Ltd.32 The assessee preferred special leave petition against the said view expressed by the High Court of Gujarat and the same was dismissed35 by the Supreme Court under Article 136 of the Constitution of India by a non-speaking order. Such like cases are numerous particularly another set of cases where the Supreme Court under Article 136 of the Constitution dismisses the appeal of the Department/Revenue by leaving the question of law open which too leads to uncertainty.36

 

The necessity of adhering to the passing of a speaking order under Article 136 of the Constitution stems from another aspect namely, that the Supreme Court time and again has emphasised that the High Court while entertaining an appeal under Section 260-A of the Income Tax Act, 1961 must first formulate the substantial questions of law for admission of the appeal and if the High Court is of the view that the appeal did not involve any substantial question of law, it should record a categorical finding to the effect that no substantial question of law is involved for its admission; and if the questions formulated fall in the category of substantial question of law, the appeal is to be heard on merits on the framed questions after admitting the appeal.37 In principle, the same procedure as is contemplated by the provisions of Section 260-A of the Income Tax Act, 1961 which is para materia with the provisions of Section 100 of the Code of Civil Procedure, 1908 should be read into the interstices of the provisions of Article 136 of the Constitution more so when two stages of consideration govern the discretionary exercise of power under Article 136 of the Constitution.

 

EPILOGUE

When a special leave petition is filed and the same is dismissed, reasons howsoever brief in conformity with the reasons contained in the judgment/order passed by the High Court answering the substantial question of law should be assigned by the Supreme Court while exercising power under Article 136 of the Constitution being a declaration of law under Article 141 of the Constitution would settle the ongoing controversy pending consideration before the High Courts, Tribunals including authorities under the Income Tax Act. No doubt the untrammelled reservoir of power conferred incapable of being confined to definitional bounds which is discretionary is subjected to only one limitation, that is, the wisdom and the good sense of justice would be more effective instilling confidence in the judicial system if such a power is effectuated by the third principle of natural justice i.e. giving of reasons in support of the order passed under Article 136 of the Constitution. As righty pointed out in C.B. Gautam v. Union of India38 by the Constitution Bench of the Supreme Court that the recording of reasons, which lead to the passing of the order is basically intended to serve a twofold purpose, firstly, a “party aggrieved” acquires knowledge of the reasons and that the obligation to record reasons and convey the same to the party concerned operates as a deterrent against possible arbitrary action. The requirement of recording reasons would introduce clarity, exclude arbitrariness, unconscious bias thereby satisfying the aggrieved party concerned against whom the order is passed under Article 136 of the Constitution at the first stage by that the Supreme Court. Maintaining of institutional integrity is of utmost importance after all as rightly said in principle by Lord Denning39 — “the giving of reasons is one of the fundamentals of good administration” and in addition thereto keeping in mind the following apt observations40 made by the Hon’ble Judge (D.A. Desai, J.):

… to give reasons which appealed to us though drawn up by one of us would any day provide a better choice than not to give reasons because it would always annoy and distress the party who lost the legal battle whether there are legal or logical reasons in support of the order or it is merely an arbitrary exercise of power.41 The age-old principle that “justice should not only be done but seem to be done”42 in its true spirit and command must govern the exercise of power by a speaking order at the hands of the Supreme Court under Article 136 of the Constitution of India after all justice is a virtue which transcends all barriers and is the constant and perpetual purpose of rendering each man his due which inheres rendering of speaking orders making the discretionary power under Article 136 of the Constitution enriched with fairness.

 


Senior Advocate, High Court of Punjab & Haryana, Chandigarh

*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 2 SCC J-25

1Quoted by Lord Denning in Gouriet v. Union of Post Workers, [1977] Q.B. 729, 762 (CA); P.N. Duda v. P. Shiv Shanker, (1988) 3 SCC 167.

2M.P. Industries Ltd. v. Union of India, AIR 1966 SC 671.

3Pritam Singh v. State, 1950 SCR 453 : AIR 1950 SC 169.

4 See: Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666; Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520.

5 See: Narendra Nath Khaware v. Parasnath Khaware, (2003) 5 SCC 488.

6Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195.

7P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141.

8 See: Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323; Rashpal Malhotra v. Satya Rajput, (1987) 4 SCC 391; Bharat Bank Ltd. v. Employees, 1950 SCC 459 : AIR 1950 SC 188; Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316.

9(2000) 6 SCC 359; affirmed by the co-equal Bench of the Supreme Court in Khoday Distilleries Ltd. v. Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376.

10 Id, 372, para 14.

11(2010) 4 SCC 358.

12Mathai v. George, (2016) 7 SCC 700.

13Pritam Singh v. State, 1950 SCR 453 : AIR 1950 SC 169; Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195; Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.

14Mathai v. George, (2016) 7 SCC 700, 702, paras 6-7.

15Kunhayammed v. State of Kerala, (2000) 6 SCC 359.

16Kunhayammed v. State of Kerala, (2000) 6 SCC 359, 383-84, para 44.

17(2010) 9 SCC 496.

18(1987) 100 HLR 731.

19(1995) 19 EHRR 553.

202001 EWCA Civ 405.

21Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, 510-12, para 47.

22Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Woolcomber of India Ltd. v. Workers’ Union, (1974) 3 SCC 318; Sahara India (Firm) (1) v. CIT, (2008) 14 SCC 151; C.B. Gautam v. Union of India, (1993) 1 SCC 78; Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836.

23 In R. v. Civil Service Appeal Board, ex p Cunningham, (1991) 4 All ER 310 (CA), Lord Donaldson, Master of Rolls, opined very strongly in favour of disclosing of reasons in a case where the Court is acting in its discretion. See also: North Range Shipping Ltd. v. Seatrans Shipping Corpn., [2002] 1 WLR 2397 (CA); Cullen v. Chief Constable of the Royal Ulster Constabulary, [2003] 1 WLR 1763 (HL).

24(1985) 3 SCC 398; See also: Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Dev Dutt v. Union of India, (2008) 8 SCC 725.

25Union of India v. Tulsiram Patel, (1985) 3 SCC 398, 476, para 95.

26 See: Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

27 See: H.M. Seervai, Constitutional Law of India (3rd Edn., Vol. 1) pp. 225 to 236.

28State of Orissa v. Binapani Dei, AIR 1967 SC 1269; A.K. Kraipak v. Union of India, (1969) 2 SCC 262; Rajesh Kumar v. CIT, (2007) 2 SCC 181.

29Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.

30(1983) 1 SCC 228.

31 Id, 260 para 16.

322012 SCC OnLine Del 6386 : (2013) 354 ITR 536.

33CIT v. Orient Craft Ltd., 2014 SCC OnLine SC 1807.

342017 SCC OnLine Guj 2495 : (2018) 400 ITR 260.

35Krishna Developers & Co. v. CIT, 2018 SCC OnLine SC 3647.

36 Special leave petition preferred by the Union of India against the judgment of the High Court of Punjab & Haryana reported as Adfert Technologies (P) Ltd. v. Union of India, 2019 SCC OnLine P&H 5701, was dismissed by the Hon’ble Supreme Court of India by a non-speaking order, reported as Union of India v. Adfert Technologies (P) Ltd., 2020 SCC OnLine SC 1064, however, on the same very issue special leave petition stands granted by the Supreme Court in Union of India v. Brand Equity Treaties Ltd., 2020 SCC OnLine SC 1065 against the judgment rendered by the High Court of Delhi in Brand Equity Treaties Ltd. v. Union of India, 2020 SCC OnLine Del 1698.

37 See: CIT v. A.A. Estate (P) Ltd., (2019) 14 SCC 99; Ryatar Sahakari Sakkare Karkhane Niyamit v. CIT, (2019) 5 SCC 706; M. Janardhana Rao v. CIT, (2005) 2 SCC 324.

38(1993) 1 SCC 78.

39Breen v. Amalgamated Engg. Union, [1971] 2 Q.B. 175  :  [1971] 2 WLR 742 (CA).

40Ram & Shyam Company v. State of Haryana, (1985) 3 SCC 267.

41 Id, 271, para 2.

42Lord Chief Justice Hewart in R. v. Sussex Justices, [1924] 1 K.B. 256

OP. ED.SCC Journal Section Archives

Justice Prabodh Dinkarrao Desai was by far the finest Judge I have known in my four decades in the legal profession. He was true to his oath and lived by very strict principles which he expected others to follow. The foremost quality of Justice Desai was his fearlessness. When any Judge takes oath, he swears to work to the best of his ability without fear or favour, affection or ill-will. “Fear” was a word which did not exist in Justice Desai’s mind or dictionary. He worked tirelessly as a Judge and Chief Justice for 23 years, never seeking any reward for himself. A man who was elevated as a Judge of the High Court at the young age of 39 years could well have risen to the highest judicial post in the country if he had played his cards right. However, Justice Desai believed in doing the right things, and not in playing his cards right. He never pandered to those in power and sacrificed his future in his quest for truth. He may never have been elevated to the Supreme Court but today he is acknowledged and remembered as one of the finest Judges this country has ever seen.

 

Justice Desai was a Judge way ahead of his times. He used the Constitution as a tool to ameliorate the lives of the downtrodden. He was not bound by the rules of procedure and if, within the bounds of law, he could give relief to any petitioner before him he never hesitated to do so. Justice Desai was one of the pioneers of public interest litigation. He was an activist Judge who did not hesitate to take action even on letters written to him, if those letters disclosed violation of the fundamental rights of the citizens. It was he who said that the right to have motorable road is a fundamental right within the meaning of Article 21 of the Constitution. In some cases he entertained letters without disclosing the names of the persons who had written the letter. He was a messiah for the needy, the downtrodden and those whose fundamental rights have been curtailed whether it be in jail or outside. In one of his judgments he said “fundamental rights do not flee a person as he enters the prison”.1

 

Justice Desai was the Chief Justice of the Himachal Pradesh High Court from 23-12-1983 to 13-11-1988. When he joined, I had put in a little more than five years’ practise. For five years, day in and day out, I appeared in the Court of Justice Desai. Each day was a learning experience; learning not only in the field of law but learning how law can be used as an instrument of social change, how the legal fraternity can help alleviate the problems of the downtrodden.

 

Today’s topic “Law of Sedition in India and Freedom of Expression” is very important and relevant. I would like to divide this topic in two portions. Since freedom of speech and expression is a fundamental right guaranteed under the Constitution of India, this must be given its due importance and weightage while interpreting any legal provisions including the law of sedition. Therefore, I will first deal with the constitutional right of freedom of speech and expression, then with the laws of sedition and finally the interplay between the two.

 

Right of freedom of speech and expression

In the Preamble to the Constitution, “We the people of India” have promised to secure for all the citizens—liberty of thought, expression, belief, faith and worship. This is an inherent human right and a part of the basic structure of the Constitution. There cannot be any democratic polity where the citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner which they feel like.

 

What is a general promise in the Preamble to the Constitution, later becomes an enshrined fundamental right. Article 19(1) (a) guarantees the right of freedom of speech and expression. This right is a well-recognised right which includes within its ambit the right of freedom of press, the right to know, right to privacy, etc. Article 21 prescribes that no person shall be deprived of his life or personal liberty except according to the procedure prescribed by law. The word “life” has been given an expansive meaning and has been now recognised to mean to live a life of decency and not a mere animal existence. I am not dilating on the various aspects of the right to life but even if there was no Article 19(1) (a) we could include the right to freedom of belief, thought, expression, faith and worship in the right to life enshrined in Article 21. Article 25 makes it clear that every person is entitled to freedom of conscience and the right to freely practise, profess and propagate his or her religion.

 

No doubt, the State has the power to impose reasonable restriction on the exercise of such rights in the interest of sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality, etc.

 

The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. Every society has its own rules and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with well-accepted norms of society. If everybody follows the well trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found. We are not dealing with vistas and explorations in the material field, but we are dealing with higher issues. If a person does not ask questions and does not raise issues questioning age old systems, no new systems would develop and the horizons of the mind will not expand. Whether it be Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and religious practices would not have been established, if they had quietly submitted to the views of their forefathers and had not questioned the existing religious practices, beliefs and rituals.

 

It is said that when Guru Nanak Dev went to Mecca, he was very tired and lay down to take rest. His feet were facing the Kaaba which, for the followers of Islam, is the house of God. The maulvi became angry on seeing Guru Nanak sleeping with his feet towards the house of God and shouted “You fool, don’t you know this is the house of God? Why are you lying with your feet towards the Kaaba?” Then Guru Nanak woke up and said, “O sir, I am sorry I didn’t know it. I was tired so I just lay down and fell asleep. Could you turn my legs to the side in which there is no God?” The maulvi had no real answer and Guru Nanak observed God does not live in one place. He lives everywhere.

 

Closer home, when Guru Nanak visited Haridwar and entered the holy Ganges to take a dip early in the morning, he saw that most of the pilgrims were taking water from the Ganges, raising it towards the sun and dropping it as an offering to their ancestors. Since he did not believe in such rituals and was a rationalist, Guru Nanak turned his back towards the sun, faced the West and started pouring water. This outraged some of the priests, who asked him what he was doing. He answered, my crops in the fields are dying because of lack of water. I am watering them. Everybody started laughing and making fun of him and asked him how this water would reach his fields hundreds of miles away. He answered that if the water that you pour can reach your ancestors in another world why cannot the water which I pour reach my fields. Today if somebody was to behave like Guru Nanak, most probably he would have to spend a couple of days in jail.

 

In a secular country, every belief does not have to be religious. Even atheists enjoy equal rights under our Constitution. Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution.

 

The right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes in. The judgment of H.R. Khanna, J. in ADM, Jabalpur case2, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible Judge. Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill-will. First and foremost part of the duty is to do one’s duty without fear. As I said earlier, “fear” is not a word which existed in the dictionary of Justice P.D. Desai. In fact, this is a word which should not exist in the dictionary of any person who professes to be a Judge.

 

A very important aspect of a democracy is that the citizens should have no fear of the Government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live, if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media. It is indeed sad that one of our celebrities had to withdraw from social media because he and his family members were trolled or threatened of dire consequences.

 

Law of sedition

The foremost thing that one must keep in mind is that this law was introduced at a time when we were ruled by a foreign imperialist colonizing power. The British brooked no opposition and did not want to listen to any criticism. Their sole aim was to deprive the people of this country of their rights including the right to express their views. In my view, this right of freedom of expression is an inherent human right and even if there was no Article 19, this right along with its limitations would be accepted to be an enforceable fundamental right.

 

Interestingly, though sedition was an offence in the first draft of the Penal Code, 1860 (IPC) drafted by Lord Macaulay, somehow this did not find its way into IPC when it was enacted in the year 1860. IPC was amended in the year 1898 when Section 124-A was introduced. After its various amendments, it reads as under:

 

124-A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.— Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

(emphasis supplied)

 

When Section 124-A was first introduced, we were told that this provision was not to curb legitimate dissent but was to be used only when the writer or the speaker directly or indirectly suggested or intended to produce the use of force. Another reason given was that there was a Wahabi conspiracy by a man who had preached Jihad or holy war against Christians in India and therefore the need to introduce such a provision. Though Section 124-A was inserted for fear of Muslim preachers advocating Jihad or religious war, it was initially used against Hindu leaders. The first such case was of Jogendra Chunder Bose3 wherein in a newspaper called Bangobasi, the Editor objected to the English rulers raising the age of consent of sexual intercourse for Indian girls from 10 to 12 years. While charging the Jury, the learned Chief Justice explained law to the Jury in these terms:

 

… Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man’s sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.4

 

The British used the law of sedition to curb any demand for independence. In Tilak5, which was tried by a Jury, the presiding Judge, Strachey, J. while explaining to the Jury the meaning of sedition had this to say:

 

The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government. What are “feelings of disaffection”? I agree with Sir Comer Petheram in Bangobasi case3 that disaffection means simply the absence of affection. It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. “Disloyalty” is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment : if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question. It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government. If you are satisfied that he has done so, you will, of course, find him guilty. But if you should hold that that charge is not made out, and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not justify you in acquitting the prisoners. For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings. You will observe that the section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feeling in others, you must convict him even if there is nothing to show that he succeeded. Again, it is important that you should fully realise another point. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtlesly fall within Section 124-A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.”

(emphasis supplied)

 

A similar provision existed in the laws in England. However, in England this offence was a misdemeanour, meaning a petty crime punishable with imprisonment up to 2 years, but for subjects in the colonies including India, the punishment was “banishment for life” which essentially means life imprisonment. The difference is stark and the reason for this difference is that in England the Crown was dealing with its own citizens and in the colonies, it was dealing with people whom it did not consider to be its own citizens but those who were being ruled by it. Both were obviously not equal.

 

Though in India the directions of the Judges to the Jury gave a very wide meaning to the word “sedition”, in England, at the same time, the interpretation given to sedition, was as under6:

 

“Nothing is clearer than the law on this head — namely, that whoever by language, either written or spoken incites or encourages other to use physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel. The word “sedition” in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or uproar; it implies violence or lawlessness in some form….”

 

The difference in the approach while interpreting the word “sedition” between the citizens of the mother country and the colonies is writ large. Criticism of the Government without any incitement or encouragement to use physical force or violence which would not be an offence in England would somehow tantamount to be an offence in the colonies though the language used was the same.

 

It is said that English is a very strange and difficult language and any word can have two meanings. But, here the double meaning was not due to a problem in semantics but where and against whom the law was being applied. A lenient view as against citizens and a harsh view against the colonized.

 

Another important decision on the law of sedition is in Niharendu Dutt Majumdar case7 when Sir Maurice Gwyer, C.J. of the Federal Court held:

 

Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Governments, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must, either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.8

However, the Privy Council9 did not approve what was said by Justice Maurice Gwyer, C.J.

 

Mahatma Gandhi was charged with sedition in the city of Ahmedabad and while appearing before Sessions Judge Broomfield, while dealing with the word “disaffection” he had this to say:

 

Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.

I think this brilliantly sums up what I want to say today that mere criticism without incitement to violence would not amount to sedition.

 

However, the Mahatma was sentenced to undergo imprisonment for 6 years.

 

You cannot force people to have affection for the Government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.

 

The situation after Independence

The Constituent Assembly, while debating on the right of freedom of speech also considered the law of sedition. In the first draft of the Constitution, sedition was included as an exception to the right to free speech. In the debate, many persons spoke for and against including sedition as an exception to Article 19. It was the likes of K.M. Munshi, Bhupinder Singh Mann, etc., who carried the day. Munshi insisted that sedition should not be kept as one of the exceptions to free speech. He was clear in his mind that only incitement to violence or insurrection should be barred and, therefore, exceptions to Article 19 do not contain the word “sedition” but security of State, public disorder or incitement to an offence. This clearly underlines the fact that the Founding Fathers of the Constitution were of the view that sedition could be an offence only if it led to or incited public disorder or violence. In fact, Mr Munshi relied upon the judgment7 of Sir Maurice Gwyer, which I referred to above. After independence and before the first amendment to the Constitution was brought in, it was felt that Section 124-A would not at all be constitutionally valid. In fact, Justice Sarjoo Prasad in Bihar had gone to the extent of interpreting the judgment of the Supreme Court in Romesh Thappar case10 to mean that even a call for incitement of murder would not be a crime. This was an extreme view, which was rightly set aside by the Supreme Court11, but this led to the first amendment being brought in by which the restriction of public order was introduced to Article 19. Interestingly, whereas the first amendment to the American Constitution guaranteed freedom of speech, our first amendment curtailed the right of freedom of speech to a certain extent.

 

The constitutional validity of the provisions of Section 124-A was challenged before a Constitution Bench of the Supreme Court in Kedar Nath Singh12, wherein the challenge was based mainly on the ground that Section 124-A was inconsistent with Article 19(1)(a) of the Constitution. After referring to the various decisions, some of which I have referred to above, the Supreme Court held as follows:

  1. 26. … It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress.13, 14 Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.15

 

The Supreme Court held that no offence of sedition under Section 124-A is made out unless the words — spoken or written, would have the tendency to create disorder or disturbance of public peace by resort to violence. Unless the words are likely to lead to violence, no offence is made out.

 

If one carefully analyses the Constitution Bench decision in Kedar Nath12, it is apparent that if creation of disorder or disturbance of law and order or incitement to violence had not figured, the Constitution Bench may have in all likelihood, struck down Section 124-A. It was held to be constitutional only when read in the context of incitement to violence or creating public disorder or disturbing law and order.

 

In 1974, the then Government brought another change into Section 124-A making it even more stringent. The offence, which till then had been a non-cognizable offence was made a cognizable offence meaning thereby that a person could be arrested by a police officer without obtaining warrant from a Magistrate. For me, it is very shocking that in independent India we should make the provisions with regard to sedition even more stringent and curb the voice of the people.

 

The law as laid down in Kedar Nath12 is absolutely clear. It is only if there is incitement to violence or creating of public disorder or disturbing the law that the offence of sedition is made out. Following this judgment, the Supreme Court in 1995 in Balwant Singh16 held that raising slogans like “Khalistan Zindabad”, “Raj Karega Khalsa”, etc. by themselves did not amount to an offence of sedition because there was no material or record to show that any violence had taken place despite the slogans being raised at a public place.

 

This position of law has been reiterated many times including in Bilal Ahmed Kaloo case17 and Common Cause v. Union of India18. In both these cases, the Supreme Court directed the Courts to exercise care while invoking charges of sedition. The Courts were advised to follow the principles laid down in Kedar Nath12. It was again said that sedition charges cannot be levelled only for criticising the Government or its policies.

 

The interplay between freedom of expression and the law of sedition

I would like to start with a quote from Nariman, J. opinion in Shreya Singhal case19.

  1. 13. This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, etc.20

 

This passage brilliantly sums up what should be applied even in the laws of sedition. Though Nariman, J. expressed the view that discussion and advocacy are the inherent constituents of the right to “Freedom of Speech and Expression”, the harsh reality is that the art of conversation is itself dying down. There is no healthy discussion; there is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.

 

The constitutional validity of Section 124-A has to be read in the context of Article 19 of the Constitution of India. Thus, it is clear that advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted. Majoritarianism cannot be the law. Even the minority has the right to express its views. We must also remember that in India we follow the first past the post principle. Even Governments which come in with a huge majority do not get 50% of the votes. Therefore, though they are entitled to govern or be called as majority, it cannot be said that they represent the voice of all the people. There is another very important aspect of this interplay between freedom of expression and the law of sedition, and here I would also discuss the offence of creation of disharmony under Section 153-A and criminal defamation under Sections 499500IPC. Sedition can arise only against a Government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the Government. During the dark days of Emergency, an attempt was made by one Party President to equate his leader with the country. That attempt miserably failed and, I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual. Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony.

 

The law of sedition is more often abused and misused. The people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from court, he has suffered the ignominy of being sent to jail. The manner in which the provisions of Section 124-A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition. Sedition is a crime only when there is incitement to violence or public disorder. That is what the law of the land is as laid down in Kedar Nath12. Sadly, day in and day out, we read of people being arrested in different parts of the country for making cartoons, making not so complementary references about the heads of the State, etc. The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under Pocso carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or Section or implementing the provisions of Section 66-A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity. It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country. In a country which professes to live by rule of law, this cannot be permitted.

 

The last few years have given rise to a number of cases where the law of sedition or creating disharmony have been misused rampantly by the police to arrest and humiliate people who have not committed the crime of sedition as laid down by the Constitution Bench of this Court.

 

In 2011, Mumbai Police arrested Asim Trivedi, a cartoonist for circulating a cartoon which allegedly poked fun at the Constitution and the National Emblem in an anti-corruption rally organised by Anna Hazare. This led to the Bombay High Court issuing directions to the police that before arresting a person on charges of sedition the senior officials should be consulted. The High Court of Bombay held as under21:

  1. 15. … it is clear that the provisions of Section 124-AIPC cannot be invoked to penalize criticism of the persons for the time being engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
  2. 16. Cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour or sarcasm. Having seen the seven cartoons in question drawn by the third respondent, it is difficult to find any element of wit or humour or sarcasm. The cartoons displayed at a meeting held on 27-11-2011 in Mumbai, as a part of a movement launched by Anna Hazare against corruption in India, were full of anger and disgust against corruption prevailing in the political system and had no element of wit or humour or sarcasm. But for that reason, the freedom of speech and expression available to the third respondent to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder.22

 

I think our country, our Constitution and our National Emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person’s mind or in his heart?

 

In Chhattisgarh, a 53-year-old man was arrested on charges of sedition for allegedly spreading rumours over social media about power cuts in the State. It was said that this was done to tarnish the image of the then Government running the State. The charge was absurd and again highlights the misuse of power. In Manipur, a journalist made a vituperative attack on the Chief Minister of the State and used totally unparliamentary language against the Prime Minister of the country. The language was intemperate and uncalled for but this was not a case of sedition. It was at best a case of criminal defamation. The man was kept behind bars for months under the National Security Act. In West Bengal, a party leader was arrested for morphing an image of the Chief Minister and in U.P., a man was arrested for morphing the image of the Prime Minister of the country and shockingly this image had been morphed 5 years’ back. What was the hurry to suddenly arrest this man after 5 years? A rapper who does not even live in India has been charged for sedition. The language used by her may be totally uncalled for, some other offences may be made out, but sedition does not appear to be one of them. In another extreme case, a film-maker in Tamil Nadu has been booked under Sections 153 and 153-AIPC for inciting caste enmity because he allegedly made remarks against the Chola Dynasty King for being caste oppressive. This Chola Dynasty King lived more than a thousand years’ back.

 

The law of creating disharmony and Section 66-A of the Information Technology Act, 2000 which has been held unconstitutional are still being used day in and day out to arrest people. In fact, a Bench of the Supreme Court has been constrained to pass directions on 15-2-201923 that copies of the judgment of the Supreme Court in Shreya Singhal19 be made available by every High Court in this country to all the District Courts. It does not speak well of the Indian judiciary that the Magistrates are unaware of the law of land and day in and day out we hear of Magistrates granting judicial custody or police remand in relation to such offences wherein the basic offences are not made out and under Section 66-A of the Information Technology Act, a law which is no longer valid.

 

The law laid down in Kedar Nath12, being the law of the land has to be applied in letter and spirit and unless the actions lead to creation of public disorder, disturbance of law and order or incitement to violence, no action should be taken. In fact, in my view, the law of sedition needs to be toned down if not abolished and the least which the Government can do is to make it a non-cognizable offence so that the persons are not arrested at the drop of a hat.

 

In many countries all over the world, recognising the right of freedom of speech, the laws of sedition have been abrogated or withdrawn. Even in England, sedition is no longer an offence and the crime of sedition was abolished from 2009 on the ground that sedition and seditious and defamatory libel are archaic offences — from a bygone era when freedom of expression wasn’t seen as the right it is today.

 

India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the Government. Criticism of the Government by itself cannot amount to sedition. In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives. The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view. Criticism of the policies of the Government is not sedition unless there is a call for public disorder or incitement to violence. The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. In a free country, people have a right to express their views. Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony.

 

We all must be open to criticism. The judiciary is not above criticism. If Judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the Founding Fathers never expected this country to be.

 

Gurudev Rabindra Nath Tagore had a view on nationalism, which is the anti-thesis of the view which many of us have. He, in fact, had not appreciated the satyagrah movement. He, who wrote the National Anthem also held the view that “nationalism is a great menace”. I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindra Nath Tagore less an Indian, less a patriot than any of his contemporaries. Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today’s world, if any person was to say “nationalism is a great menace” he may well be charged with sedition.

 

To conclude, I would say that if this country is to progress not only in the field of commerce and industry but to progress in the field of human rights and be a shining example of an effective, vibrant democracy then the voice of the people can never be stifled. I can do no better than quote the words of Gurudev Rabindra Nath Tagore:

 

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake.

Thank you all. Jai Hind.

———

* Valedictory address at the workshop of lawyers, organised by Praleen Public Charitable Trust and Lecture Committee at Ahmedabad, Gujarat on 7-9-2019.

**The article has been published with due permission of Eastern Book Company.

Judge, Supreme Court of India.

1 Nawal Thakur v. Brahmu Ram, 1984 SCC OnLine HP 52 : 1985 Cri LJ 244.

2 ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

3 Queen Empress v. Jogendera Chunder Bose, ILR (1892) 19 Cal 35.

4 Id., p. 44.

5 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom. 112.

6 R. v. Aldred, (1909) 22 Cox CC 1.

7 Niharendu Dutt Majumdar v. King Emperor, 1942 SCC OnLine FC 5 : (1942) 4 FCR 38.

8 Ibid.

9 King-Emperor v. Sadashiv Narayan Bhalerao, 1947 SCC OnLine PC 9 : (1946-47) 74 IA 89.

10 Romesh Thappar v. State of Madras, AIR 1950 SC 124.

11 State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

12 Kedar Nath v. State of Bihar, AIR 1962 SC 955.

13 Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.

14 R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628.

15 Kedar Nath case, AIR 1962 SC 955, 969, para 26.

16 Balwant Singh v. State of Punjab, (1995) 3 SCC 214.

17 Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431.

18 (2016) 15 SCC 269.

19 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

20 Id, pp. 130-31, para 13.

21 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587.

22 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587, paras 15-16.

23 Peoples’ Union For Civil Liberties v. Union of India, 2019 SCC OnLine SC 1820.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and V.G. Bisht, JJ., while addressing the instant matter, expressed that:

The Registrar, Co-operative Societies has not acted as a rubber stamp of the RBI.

Petitioners sought writ of certiorari or any other appropriate writ with the objective of quashing and setting aside the order passed by the Commissioner for Co-operation and Registrar of Co-operative Societies under Section 110A (1)(iii) of the Maharashtra Co-operative Societies Act, 1960 (MCS Act).

Petitioners claimed to be the Board of Directors of Nashik District Central Co-operative Bank Limited (respondent 4) registered under the MCS Act.

NABARD | Financial Health of Nashik District Central Co-operative Bank Limited

Further, the respondents submitted that NABARD had examined the affairs of respondent 4 and submitted a detailed report along with issues of supervisory concerns. It was NABARD’s opinion that the Board of Directors of respondent 4 had affected the financial health of respondent 4.

29-04-2017 Co-operative Societies, Divisional Joint Registrar’s Officer pointed out the following with regard to the bank:

·      the financial irregularities and loss suffered by respondent 4 bank

·      that the said Bank was left with no liquidity.

·      Not in a position to clear daily transaction

·      For the larger interest of members particularly farmer, existing inefficient Board of Directors were to be removed.

·      Divisional Joint Registrar, Co-operative Societies requested to submit proposal to RBI for the removal.

6-07-2017 ·      NABARD prepared report seeking opinion of G.M. of Additional Chief Secy., Corpn., Government of Maharashtra requesting Government to advice the respondent 4 bank to augment capital funds to improve the financial position.

 

12-07-2017 ·      Office of the Commissioner for Co- operation and Registrar of Co-operative Societies, Maharashtra State by NABARD, stated that in order to secure proper management of respondent 4 and to protect the interest of depositors as well as that of the Bank, prevention of further deterioration was necessary.
11-10-2017 ·      NABARD pointed out financial irregularities and recommended RBI to consider recommending Government of Maharashtra for supersession of Board of Directors.
19-12-2017 ·      RBI passed an order wherein it held that the Commissioner for Corporation and Registrar, Co-operative Societies, Maharashtra State to make an order for supersession of the Board of Directors of the respondent no.4 and for appointing ‘Board of Administrators’, in terms of the provisions of sub-section (1)(iii) of Section 110A of the MCS Act.
27-12-2017 ·      RBI passed an order.
29-12-2017 ·      Commissioner for Co-operation and Registrar, Co-operative Societies, Maharashtra State, Pune passed an order as per the directives issued by RBI under Section 110A(1)(iii) of the MCS Act thereby superseding the then Board of Directors of the respondent 4.

·      Milind Bhalerao, Divisional Joint Registrar, Co-operative Societies, Nashik as Administrator in place of the Board of Directors to manage the affairs of the bank

Senior Counsel, Anturkar submitted that Registrar (respondent 2) could not have superseded the Board of Directors of respondent 4 without applying his mind and without coming to a conclusion whether supersession was necessary or whether suspension of the Board of Directors would be sufficient.

Questions for consideration:

  • Whether respondent 2, Commissioner for Cooperation & Registrar of Cooperative Societies was required to issue any show cause notice and grant personal hearing to the petitioners before passing the impugned order of suppression of the Board of Directors and appointment of an administrator?
  • Whether the Commissioner for Cooperation & Registrar of Cooperative Societies has any discretionary power not to follow the directives issued by the RBI or in case of any directives to supersede or suspend the Board of Directors of the Co-operative Bank, the Registrar could only suspend the Board of Directors of the co-operative bank ?
  • Whether the amendment to Section 110A(1)(iii) of the Maharashtra Co-operative Societies Act, 1960 substituting the period of 5 years by one year was in conformity and compliance with the Article 243ZL of the Constitution of India ?
  • If the amendment to Section 110A(1)(iii) of the MCS Act is not in conformity with or in compliance with the amendment to Article 243 ZL, whether the Registrar Co-operative Societies was bound to issue show cause notice followed by the personal hearing to the petitioners ?
  • Whether there is repugnancy in the provisions of Article 243ZL and Section 110(1)(iii) of the MCS Act and if so, whether Article 243ZL of the Constitution of India would prevail ?
  • Whether order passed by the Commissioner for Cooperation & Registrar of Cooperative Societies appointing the sole administrator of the respondent 4 bank is quasi-judicial order or the executive/administrative order and thus does not contemplate any show cause notice or personal hearing before passing the order of supersession of Board of Directors and appointment of an administrator?
  • Whether RBI is empowered to issue directives to the Registrar of Cooperative Societies to superseded the Board of Directors of the Co-operative Bank and to appoint Board of Administrators under the provisions of the Banking Regulation Act, 1949 read with Section 110A of the MCS Act or not?
  • Whether the Registrar, Co-operative Societies is required to follow the procedure prescribed under Section 102 of the MCS Act while complying with the directives issued by the RBI Section 110A(1) (iii) of the MCS Act and superseding the Board of Directors of the Co-operative Bank or while appointing board of administrators/sole administrator of a co-operative bank or not ?

Bench noted that, under Article 243 ZL of the Constitution of India, it is provided that notwithstanding anything contained in any law for the time in force, no board shall be superseded or kept under suspension for a period exceeding six months subject to various provisos. In the fourth proviso of the said Article, it is provided that in case of a co-operative society, other than a multi-State co-operative society, carrying on the business of banking, the provisions of this clause shall have the effect as if for the words “six months”, the words “one year” had been substituted.

Further, the Court added that a conjoint reading of the unamended Section 110A(1)(iii) with the amended Section 110A(1)(iii) would clearly indicate that the period of 5 years originally prescribed under the said provision was substituted by a period of not exceeding 1 year in conformity with period of 1 year under Article 243ZL of the Constitution of India.

By referring to the decision in Arun T. Dhumale v. State of Maharashtra, WP (Stamp) No. 95405 of 2020, it was held that the Registrar, Co-operative Societies is bound by the directives issued by the RBI under Section 110(1)(ii) of the MCS Act and cannot refuse to abide such directives.

In Court’s opinion, the decision of Namdeo Natha Sanap v. State of Maharashtra, 2015(1) Mh.L.J. 838 which was delivered post to Section 110A(1)(iii) of the MCS Act also applies to the facts of the present matter

Order passed by the Registrar, Co-operative Societies is an executive and administrator order, which was passed so as to comply with the mandatory directives issued by the RBI and was thus not a quasi-judicial order.

Hence, Registrar Co-operative Societies was neither required to issue any show-cause notice nor to grant any personal hearing to the petitioners before passing the impugned order.

Section 110A(1)(iii) of the MCS Act clearly indicates that if it is required by the RBI in public interest or for preventing the affairs of the bank being conducted in a manner detrimental to the interest of the depositors or for securing the proper management of the bank, the discretion vests in the RBI to pass an order or directives against the Registrar, Co-operative Societies either for suspension or supersession of the Board of Directors, as the case may be. Such discretion under the said provision does not vest in the Registrar, Co-operative Societies either to suspend or supersede the Board of Directors upon receipt of such directives from the RBI under the said provision.

Since, High Court found that there was no repugnancy in the provisions of Article 243 ZL and Section 110A(1)(iii) of the MCS Act, Article 243 ZL of the Constitution of India does not prevail over the Section 110A(1)(iii) of the MCS Act.

Bench found no infirmity in the order passed by the Registrar, Co-operative Societies in appointing sole administrator.

“…appointment of a sole administrator made by the Registrar, Co-operative Societies cannot be set aside on the ground that the RBI had directed the Registrar, Co-operative Societies to appoint Board of Administrators.”

Under Section 110(A)(1)(iii) of the MCS Act, the Registrar, Co-operative Societies is bound to comply with the directives issued by the RBI under the said provisions and has no discretion.

The order passed by the Registrar, Co-operative Societies to supersede or suspend the Board of Directors in compliance with the directives issued by the RBI is an administrative or executive order.

Further, the Court also explained that Registrar, Co-operative Societies is empowered to pass an order of winding up of such co-operative bank.

Powers of the Registrar under Section 102 of the MCS Act cannot be equated with the duty of the Registrar, Co-operative Societies to comply with the directives issued by the RBI under Section 110A (1)(iii) of the MCS Act.

The Registrar, Co-operative Societies is thus not bound to follow the procedure prescribed under Section 102 of the MCS Act while complying with the duties under Section 110A(1)(iii) of the MCS.

In High Court’s opinion, Senior Counsel, Mr Dhond rightly placed reliance upon Section 56(zb) and 56(za) in support of submission that in case of Multi State Co-operative Bank, the RBI is empowered to exercise the powers under Section 110A (1)(iii) of the MCS Act in directing the Registrar, Co-operative Societies in superseding or suspending the Board of Directors of such Multi-State Co-operative Bank and in case of Single State Co-operative Society, RBI has no power under the provisions of the MCS Act to supersede the Board of Directors of such co-operative bank.

Provisions of the Banking Regulation Act are preserved by virtue of the said third proviso to Article 243 ZL of the Constitution of India and does not affect the power of the RBI to take any action under the provisions of the Banking Regulation Act or under Section 110A(1)(iii) of the MCS Act.

Adding to the above analysis, Bench also stated that the word ‘shall’ in Section 110A(1)(iii) would clearly indicate that the Registrar, Co-operative Societies is bound to comply with the directives of the RBI and mandatorily.

“…amendment carried out by the State Government to Section 110A(1)(iii) of the MCS Act in the year 2013 is in conformity with the provisions of Article 243 ZL of the Constitution of India and is in tune with fourth proviso to Article 243 ZL of the Constitution of India.”

While parting with the decision, High Court stated that since the order passed by the Registrar, Co-operative Societies was in mandatory compliance with the directives issued by the RBI to supersede or suspend the Board of Directors of respondent 4 by Co-operative Societies, Court could not interfere with such order passed by the Registrar, Co-operative Societies.

Petition was found to be devoid of merit and the petitioners were directed to handover the charge of affairs and management of respondent 4 to the administrator appointed by respondent 2. [Keda Tanaji Aher v. State of Maharashtra, 2021 SCC OnLine Bom 413, decided on 19-03-2021]


Advocates before the Court:

Mr. Ashutosh A. Kumbhakoni, Advocate General a/w Mr. Akshay Shinde, ‘A’ Panel a/w Mr. Yuvraj D. Patil, AGP for the Applicants-State in CAW/271/2019 and for Respondent Nos.1 to 3 in WP/2301/2018. Mr. Anil V. Anturkar, Senior Advocate a/w Mr. Yatin Malvankar i/by

Mr. I. M. Khairdi for the Petitioners in WP/2301/2018.

Mr. Ritesh Wagh h/for Mr. Tejpal S. Ingale for the Applicants in CAW/ 1275/2018.

Mr. Shrinivas S. Patwardhan a/w Mr. Bhooshan R. Mandlik for Respondent No.4.

Mr. Venkatesh Dhond, Senior Advocate a/w Mr. Prasad Shenoy, Ms.Aditi Phatak and Ms. Kirti Ojha i/by Udwadia and Co. for the Respondent No.5-Reserve Bank of India.

Mr. Girish S. Godbole i/by Mr. Vishwajeet Mohite and Ms. Pooja Mankoji for the Respondent Nos. 6 and 7 in WP/2301/2018.

Mr. Girish S. Godbole i/by Mr. Ketan Joshi and Ms. Pooja Mankoji for the Respondent Nos. 8 and 9 in WP/2301/2018.

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., has set aside the impugned order of High Court of judicature at Madhya Pradesh, whereby the High Court had upheld taking over of possession and eviction under MP Land Revenue Code, 1959.

Factual Background

The predecessors of the appellant was bhumiswami of agricultural dry land measuring 64.438 acres situated in Village Bagadua, MP, which was in excess of the ceiling limit prescribed as per S. 7(b) of MP Ceiling on Agricultural Holdings Act, 1960, whereby the prescribed limit was set at 54 acres. Therefore, the competent authority had initiated the process to acquire the surplus land. In furtherance of the aforesaid, the State had initiated the process of taking over possession and eviction under Section 248 of the MP Land Revenue Code, 1959.  The appellant, being aggrieved filed a suit for declaration of title and permanent injunction before the Trial Court.  The appellant contended that the proceedings were illegal as he was actually left with only 54 acres of land which was within the prescribed ceiling limit in view of the fact that the land measuring 17 bighas and 7 biswa had been decreed in favour of one Jenobai, who was in possession by cultivation for about 20 years.

The Trial Court had held that the appellant was the original bhumiswami and the suit with Jenobai was collusive as she was the mother-in-law of the appellant and the endeavour was to prevent the surplus land from being acquired by the State. The appellant filed an appeal before First Appellate Court , which was allowed and the judgment of the trial court was set aside on the ground that the competent authority had failed to comply with the statutory provisions under Section 11(3) and 11(4) of the said Act. However, the said judgment was set aside by the High Court noticing that no information was stated to have been provided to the competent authority giving particulars of the suit of Jenobai. The competent authority was held not to be at fault in the alleged breach of Sections 11(3) and 11(4) of the Act, 1960 as the information germane for the same had not been disclosed.

Observation and Analysis

 Whether the requirement of S. 9 of the Act, 1960 had been fulfilled?

To decide this issue the Court had directed both the parties to submit certain records before it, however, the State had failed to comply with the same. Therefore, it was held that failure to place the aforementioned documents on record showed that there had been proper disclosure about the suit in the return filed under Section 9.  The fact that the respondent had pleaded the suit in question to be collusive was also considered to be a proof that the particulars of the pending civil suit filed by the mother-in-law of the appellant claiming part of the land held by the appellant were submitted before the respondent.

 Whether obtaining of possession was according to the procedure established by law?

According to Section 11(3) of the Act, 1960 the draft statement had to be published and served on the holder and “all other persons interested in the land to which it relates.” Once a disclosure was there that Jenobai had filed a suit, there had to be mandatorily a notice to her, as otherwise any decision would be behind her back and would, thus, violate the principles of natural justice. The Bench observed the proviso to 11(4), which clarified that, in case the competent authority finds that any question has arisen regarding the title of a particular holder, which is already pending for decision before the competent court, the competent authority shall await the decision of the court. Hence, the Court held that proceedings should have been kept in abeyance to await the verdict in the suit and notice should have been issued to Jenobai.  The Bench expressed,

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

 The law in this case was the said Act. Thus, the provisions of the said Act had to be complied with to deprive a person of the land being surplus. It was further stated that, once a disclosure was made, the matter had to be dealt with under sub-section (4) of Section 11 of the said Act and in view of the pending suit proceedings between the appellant and Jenobai, the proviso came into play which required the respondent authorities to await the decision of the court. Sub-section 5 and thereafter sub-section 6 would kick in only after the mandate of subsection 4 was fulfilled.

Though there may be a process provided for redressal under the scheme of the Act, it is this very scheme of the Act which has been breached by the respondents herein in not complying with the statutory provisions.

Whether Jurisdiction of Civil Court is barred?

 Regarding the issue of jurisdiction of civil court the Bench analysed Section 46 of the Act, 1960, which reads as under:

46. Bar of jurisdiction of Civil Courts. – Save as expressly provided in this Act, no Civil Court shall have any jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the competent authority.”

Noticing that Section 46 begins with a saving clause qua the bar of civil court – “Save as expressly provided in this Act…..” the Bench held that, provisions of Section 46 were expressly subjected to the provisions of Section 11(5). Reliance was placed on   Competent Authority, Tarana District, Ujjain (M.P.) v. Vijay Gupta, 1991 Supp (2) SCC 631, by the Bench, wherein, while deciding the question of jurisdiction of Civil Court, the Court had expressed,

“So far as the other question regarding the maintainability of the suit in a civil court is concerned, suffice to say that sub-section (5) of Section 11 of the Act itself provides that any party may within three months from the date of any order passed by the Competent Authority under sub-section (4) of Section 11 of the Act institute a suit in the civil court to have the order set aside. Thus the above provision itself permits the filing of a suit in a civil court and any decision of such court has been made binding on the Competent Authority under the above provision of sub-section (5) of Section 11 of the Act. It is not in dispute that the suit in the present case was filed within three months as provided under sub-section (5) of Section 11 of the Act. In the result, we do not find any force in this appeal and it is accordingly dismissed with no order as to costs.”

Decision

Considering the above mentioned, the Bench held that when there was no surplus land there could be no question of any proceedings for take over of the surplus land under the said Act. Hence, the impugned order was set and the order of the first appellate court was restored. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27, decided on 19-01-2021]


*Justice Sanjay Kishan Kaul has penned this judgment


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ. and Sujit Narayan Prasad, J., allowing the present petition, discussed the power of judicial review in cases pertaining with the tenth schedule of the Constitution.

Background

The brief facts of the case are that the writ petitioner in WP (C) No. 3687 of 2020, at the relevant time, was the Kendriya Adhyaksh (President) of Jharkhand Vikas Morcha (Prajatantrik), are recognized and registered State Level Political Party by the Election Commission of India. A meeting of the Central Working Committee of JVM(P) was held on 11-02-2020 wherein it was resolved to merge the JVM(P) political party with Bhartiya Janta Party, a national political party. Further, in a meeting of the Legislature Party of the JVM(P) held on 11-02-2020, it was unanimously resolved to merge JVM(P) with BJP.

       In view of the aforesaid decisions, the President of JVM(P), the writ petitioner in WP (C) No. 3687 of 2020, had written a letter on 11-02-2020 to the Election Commission of India by enclosing the decision taken in the meetings dated 11-02-2020 by making a request to take steps as JVM(P) and its legislature party stand merged with BJP henceforth. The Election Commission of India vide letter dated 06-03-2020 has informed regarding merger of JVM(P) with BJP. The fact about the merger has been brought to the notice of the Speaker, Jharkhand Legislative Assembly. The Speaker issued a notice on 18-08-2020 stating that he has come to believe that there is an issue affecting the Tenth Schedule of the Constitution of India and as such, the writ petitioner was directed to produce evidences himself or through Advocate on 17-09-2020. The writ petitioner filed response raising the question of jurisdiction to the effect that the Speaker of the Jharkhand Legislative Assembly has no power to take suo moto cognizance to treat a case under Tenth Schedule of the Constitution of India as the constitutional mandate as under Tenth Schedule under Paragraph 6 thereof, the Speaker has only been conferred with the power to take decision on questions as to the disqualification on ground of defection if any question to that effect is referred. Though, in the case in hand, no such issue has been referred by anyone for its adjudication, however, such power has been exercised by the Speaker in pursuance to the provision of Sub-Rule (1) of Rule 6 of the Rules, 2006 which confers power to the Speaker to take suo moto decision for determining the question of defection in view of the Tenth Schedule of the Constitution of India. Another argument later raised was with respect to the power of the Court to grant interim relief to the petitioners in the instant case, as the same seems protected by Article 212 of the Constitution.

 Issue

  1. Whether Speaker can take suo moto cognizance under paragraph 6 of the Tenth Schedule?
  2. Whether the Court can exercise its power under Article 226 to grant interim relief in a matter connected with paragraph 6, Tenth Schedule?

 Observation

On principles governing interim injunction/interim relief

Court referred to the case of, Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd., (1998) 1 SCC 720, wherein the Supreme Court has delineated the other considerations which ought to weigh with the Court hearing application or petition for the grant of injunction as; (i) Extent of damages being an adequate remedy (ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor (iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant   (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.

Further, reliance was placed on Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, wherein the Court explained the scope of interim order, in the words, “The phrases prima facie case, balance of convenience and irreparable loss are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves.”

On power of Speaker under Paragraph 6 to Tenth Schedule of the Constitution

Court reproduced the said paragraph;

Para 6 Decision on questions as to disqualification on ground of defection

(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.

The bench concluded in the words, “It is, thus, evident that the Speaker is required to exercise the power for taking decision if question about disqualification is referred for such decision before him, meaning thereby, under the constitutional mandate no power has been conferred upon the Speaker to take suo moto decision for answering the question about disqualification under the Tenth Schedule of the Constitution of India.”

On power of Judicial Review in cases attracting Paragraph 6 of the Tenth Schedule

The bench considered the case of Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, as observed under Paragraph 110 and 111, in the words, “…The Speakers/Chairman while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

Therefore, it is evident that the power of judicial review can be exercised but under its limited scope, that is, if the order has been found to be passed on the violation of the constitutional mandates, mala fide, non-compliance with Rules of Natural Justice and perversity.

 Decision

Reiterating the precedents cited, the Court said, “…that the petitioner has been able to make out prima facie case and if the interim order would not be granted, the same will lead to irreparable loss and further, balance of convenience also lies in favour of the petitioner, therefore, is of the view that it is a fit case where the interim relief is required to be granted in favour of the writ petitioner.”[Babulal Marandi v. Speaker, Jharkhand Vidhan Sabha,  2020 SCC OnLine Jhar 1017, decided on 17-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Sudhir Agarwal, J., found a government servant to be guilty of the offence of bigamy.

The instant petition was filed against the decision passed by the Senior Superintendent of Police, Agra dismissing the petitioner from the post of Fireman and therefore mandamus was sought to direct respondent not to interfere in working of the petitioner as a fireman and to pay his full salary for the period of suspension.

Another challenged placed by the petitioner was with regard to the validity of Rule 29 of the U.P. Government Servants Conduct Rules, 1956, claiming the same to be unconstitutional.

Factual matrix

Petitioners wife i.e. respondent 5 had alleged him of bigamy since he had married another woman.

Petitioner submitted that respondent 5 was married to his maternal uncle and after his death, she started living with an elder maternal uncle from whom she conceived a child also. She has also been receiving the pension of his maternal uncle. Further, he added that there is no relationship between husband and wife with respondent 5 and on the other hand he married Anita Yadav in the presence of all relatives and friends.

Further, the petitioner added that respondent 5’s motive and the intent was only to extract some monetary benefits from him.

In view of respondent 5’s complaint, petitioner was suspended.

Chief Fire Officer, Agra in his report submitted that there was no evidence of respondent 5’s marriage with the petitioner. However, both were living together and their relationship resulted in the birth of a child.

S.P. City Agra in his report submitted that respondent 5 and the petitioner were married. In 1994, petitioner without respondent 5’s knowledge solemnised the second marriage. Respondent 5 on knowing the said fact took various legal steps and also filed maintenance applications, wherein she was awarded the same by Additional Chief Judicial Magistrate.

Thereafter, a regular disciplinary proceeding was initiated against the petitioner under the U.P. Subordinate Police Officers (Punishment and Appeal) Rule, 1991, after the enquiry was completed, petitioner was held guilty of bigamy and, therefore, guilty of misconduct under Rule 29 of Conduct Rules, 1956.

Disciplinary Authority in light of the above-stated passed the impugned order of dismissal.

Analysis and Decision

Judicial Review

Bench observed that in the cases pertaining to the disciplinary enquiry, the scope of judicial review is very limited and is confined to the extent of decision-making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of malafide, bias or in violation of natural justice, or in case it can be shown that the findings recorded in the disciplinary proceedings are based on no evidence at all.

With regard to the contention that the charge of bigamy is false and there is no proof or evidence showing the valid marriage of the petitioner with respondent 5 i.e. Munni Devi, counsel for the petitioner submitted that there was no evidence of solemnization of marriage between the petitioner and Munni Devi who claimed to be his legally wedded first wife. It is also submitted that assuming that the petitioner and Munni Devi were living together and maintaining a relationship of husband and wife, yet in the absence of any proof of solemnization of marriage it cannot be held that the petitioner was guilty of bigamy and therefore violated Rule 29 of the Conduct Rules.

A very significant observation made by the Court was that,

Admittedly there was no evidence showing solemnization of marriage with Hindu rituals but there was evidence that petitioner and Munni Devi married in Court, blessed with a daughter out of their relationship of living together as husband and wife and in various documents Munni Devi was shown as the wife of the petitioner.

In these circumstances, Bench stated that it cannot be stated that the findings recorded by the Enquiry Officer and accepted by the Disciplinary enquiry that the petitioner was guilty of bigamy are based on no evidence at all. The evidence of a marriage between the petitioner and Munni Devi does exist and the sufficiency or adequacy thereof is not within the realm of judicial review of this Court.

Court cited the decision of Supreme Court, R.S. Saini v. State of Punjab, (1999) 8 SCC 90, wherein it was held that the standard of proof required in disciplinary proceedings is that of the preponderance of probability and where there is some relevant material which the competent authority has accepted and such material if can reasonably support the conclusion drawn by the disciplinary authority regarding the guilt of the employee, the court will not reappreciate such evidence to arrive at a different conclusion since the question of adequacy or reliability of evidence can not be canvassed before the court.

In Bombay High Court’s decision of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, it was held that the disciplinary authority, is the sole judge of the facts if the enquiry has been properly conducted. If there is some evidence on which the findings can be based then adequacy or even reliability of that evidence is not a matter to be canvassed before the Court

Hence, in view of the above discussion, petitioners contention that he was not guilty of bigamy was not accepted.

The validity of Rule 29 of the Conduct Rules

Petitioner contended that Rule 29 is arbitrary, unjust and illegal, no guidelines have been given as to when the permission will be granted for the purpose of second marriage under the proviso to the said rule and therefore, it is ultra vires.

Bench found the above-stated submission to be wholly baseless and misconceived.

No law, custom or practice has been brought to the notice of the Court showing that solemnizing more than one marriage is necessary religious or otherwise activity.

Decades ago people used to marry more than once inspite of having spouse living. It is said that in Muslim Personal Law, marriage with four women is permissible.

However, to the knowledge of the court, no personal law maintains or dictates it as a duty to perform more than one marriage.

No religious or other authority has been brought to Court’s notice providing that marrying more than one woman is a necessary religious sanction and any law providing otherwise or prohibiting bigamy or polygamy would be irreligious or offence the dictates of the religion.

Polygamy cannot be said to be an integral part of any religious activity, may be Hindu, Muslim or any other religion.

A distinction has to be drawn between religious faith, belief and religious practices. Even Article 25 of the Constitution guarantees only the religious faith and belief and not the religious practices which if run counter to public order or health or policy of social welfare which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole.

Bench also observed that various statutes have prohibited both bigamy and polygamy.

A Division Bench of this Court also considered the validity of Rule 27 of the U.P. Government Servant (Conduct) Rules (old) prohibiting bigamy in the case of Ram Prasad Seth v. State of Uttar Pradesh, 1960 SCC OnLine All 128 and the  Court observed that there is no law, making it necessary to solemnize a second marriage. It was held that even under the Hindu religious belief marrying a second wife in order to obtain a son when the first wife can not provide one was only a practice followed by the people and not a sanction or mandate of law.

In view of the above discussion, the Court held that Rule 29 cannot be said to be non-arbitrary or illegal and ultra vires.

Concluding with its decision, Bench held that

In any country where bigamy is an offence, a government servant guilty of committing an offence cannot ask to continue in service after award of the minor or lesser punishment.

In view of the above, petition was dismissed. [Veerpal Singh v. SSP, Agra, 2006 SCC OnLine All 1628, decided on 18-05-2006]


Read more:

Bigamy [S. 494 IPC, S. 17 Hindu Marriage Act]

OP. ED.SCC Journal Section Archives

Over the last 50 years, the Supreme Court of India has established itself as one of the indisputably great courts of the world. No other court in the free world exercises jurisdiction over more than a small fraction of the nearly one billion men, women and children who form the population of India. The Golden Jubilee of this Court is accordingly a matter of much more than local importance. I am greatly honoured to have this opportunity to pay tribute to its achievements over this crucial and formative period of its and the country’s history.

The honour and the pleasure are all the greater for a visitor from the United Kingdom since for over two centuries, for better or worse — I hope not wholly for worse — our fortunes and histories were so closely intertwined. [Read more…]


Note: This Article was first published in Supreme Court Cases (2000) 1 SCC J-29.It has been reproduced with the kind permission of Eastern Book Company.

† On the occasion of the Golden Jubilee Celebrations of the Supreme Court of India on 26-11-1999 at Vigyan Bhavan, New Delhi.

*Lord Chief Justice of England and Wales

Law made Easy

Under the Constitution


This right guarantees free and compulsory education for children between the age of 6 to 14 years in India under Article 21A of the Constitution of India.

  • Free education’ means that no child, other than a child who has been admitted by his or her parents to a school, shall be asked to pay any kind of fee/charges/expenses which may prevent him or her from pursuing and completing elementary education.
  • Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age groups.

Under the Right to Education Act, 2009


Focus:

  • Providing elementary education to a child (6-14 years) who does not/could not go to school. Such child to be admitted in age appropriate class and has the right to receive special training.
  • Seeks to provide children right to seek transfer from a government or govt. aided school to another such school in order to complete elementary education. Such child also has right to immediately seek a transfer certificate (TC).
  • Mandates non-minority private unaided schools to reserve at least 25% of their entry level seats for children belonging disadvantaged sections to create a more integrated and inclusive schooling system.
  • Mandates the appropriate government and local authorities to provide for children’s access to elementary schools within the defined area or limits of the neighbourhood.
  • Lays down the responsibilities of the State and Central government for carrying out provisions of the act.
  • Constitution of a School Management Committee (SMC). The role of this committee to manage, monitor and support a school in its functions.
  • Indicates that within 3 years from the date of commencement of the act, the appropriate government and local authority shall insure that the Pupil Teacher Ratio (PTR) is maintained in each school.

Ensures:

  • Compulsory and free education for all.
  • Special provision for special classes.
  • Minimum standards.
  • Admission for all.
  • Quality and quantity of teaching.
  • All-round development.
  • By the people, for the children.

Objectives:

  • Ensure that every child below the age of 14 gets free and compulsory education.
  • Curb the problem of illiteracy.

Ensure personal growth and in turn growth of the country.


This Article is a part of the ‘Know Your Rights’ series by Centre for Clinical Legal Education, Maharashtra National Law University, Mumbai 

Case BriefsHigh Courts

Jharkhand High Court: A Full Bench of H.C. Mishra, Shree Chandrashekhar and Deepak Roshan JJ., while deciding on the validity of the impugned notification and order, reiterated the Supreme Court observation in a catena of judgments, decrying policy prescribing reservation on the basis of “sons of the soil”.

Background

The petitioners and the intervener petitioners are the aspirants for the post of Trained Graduate Teachers in various subjects in the Government Secondary schools, for which they underwent selection process, but could not be appointed in the schools situated in thirteen scheduled districts in the State because they were not the residents of the scheduled districts. The intervener respondents are in three categories, the first being those who were selected and appointed in the scheduled districts pursuant to the impugned advertisement, secondly, those who were selected but could not be appointed due to the interim order dated 18-09-2019 passed by the present Court and lastly, those whose selection/appointments have been affected in other services due to the aforesaid order.

In the present set of writ applications, the constitutional validity of the notification and order issued by the State Government, bearing Notification No. 5938 and Order No. 5939 dated 14-07-2016 issued in its Department of Personnel, Administrative Reforms and Rajbhasha, is under challenge. By the said notification and order, it has been stated that in the 13 scheduled districts of the State, only the local residents of the concerned scheduled districts shall be eligible for appointment on the District Cadre Class III and Class IV posts for a period of ten years from the date of issuance of the notification. 

Contentions

Counsel for the petitioners, Vigyan Shah, contended that in the garb of the non-obstante clause in paragraph 5(1) of the Fifth Scheduled of the Constitution of India, such notification altogether depriving the candidates of the non-scheduled districts to apply for Class-III and Class-IV district cadre posts in the scheduled districts could not be issued by the Governor of Jharkhand, as the same amounts to violation of Articles 14 and 16 of the Constitution of India. It is submitted that Article 13(2) of the Constitution of India ordains that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution and any law made in contravention of this provision shall, to the extent of such contravention, be void. The Counsel further made submissions placing reliance on Article 16 clause (1) and (3) and Article 35 (a-i). Reliance was placed on Kailash Chand Sharma v. State of Rajasthan, (2002) 6 SCC 562 wherein the Supreme Court while considering the question whether the domiciles of the particular districts of the State of Rajasthan could be given extra bonus marks in the selection process only on the basis of residence and whether the said exercise was constitutionally valid when tested on the touchstone of Articles 14 and 16 of the Constitution of India, said, “(…)We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself — be it within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis.”

The counsel referred to several other decisions, including, A.V.S. Narsimha Rao v. State of Andhra Pradesh, (1969) 1 SCC 839, Pradeep Jain v. Union of India, (1984) 3 SCC 654, Rajesh Kumar Gupta v. State of UP, (2005) 5 SCC 172, State of Orissa v. Sudhir Kumar Bishwal, 1994 Supp (3) SCC 245 and the landmark case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. Furthermore, the counsel relied on another case that bears a close connection with the present factual matrix, Chebrolu Leela Prasad Rao v. State of A.P., Civil Appeal No. 3609 of 2002.

Advocate General appearing for the State, opposed the prayer and placed the Presidential Notification issued in the year 2007, declaring the scheduled areas in the State of Jharkhand. Further, reliance was placed on Notification and Order dated 14-07-2016 issued by the State Government to submit that the scheduled districts in the State of Jharkhand are characterized by low human development indices, backwardness and since they are in average inferior to the social indicators in the State due to uneven topography, the notification had to be issued by the Governor for protecting the interests of the residents in the scheduled districts. Further, AG also relied on Article 162, Article 244 and the case of G. Ramadoss v. Union of India, 1970 SCC OnLine AP 277, wherein the Andhra Pradesh High Court held, “(…) the Governor of a State is invested with overriding powers to make by public notification any law relating to the administration and control of the Scheduled Areas despite the other provisions including those enshrined in Part III of the Constitution… Hence, in my considered opinion, any notification or regulation issued by the Governor under paragraph 5(1) of the Fifth Schedule to the Constitution, even if it contravenes the fundamental rights of any citizen, is valid and intra vires of the powers vested in him” Reliance was further placed on Pulusam Krishna Murthy v. T.Sujan Kumar, 2001 SCC OnLine AP 1044.

 Observations

With respect to the validity of the notification issued by the Governor, the Court said, “We find that by the impugned notification issued by the Governor of the State, 100% reservation has been provided in favour of the residents of the scheduled districts, totally ignoring the fundamental rights of the citizens residing out of the scheduled districts, and as held by the Hon’ble Apex Court, such reservation is not permissible under the Constitution, as the outer limit is 50%, as specified in Indra Sawhney’s case”

With respect to the power of Governor, in light of Chebrolu Leela Prasad Rao v. State of A.P., Civil Appeal No. 3609 of 2002, the Court said, “(…) the Governor in exercise of powers under Paragraph 5(1) Schedule V of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the Legislature of the State, directing that such law shall not apply to the scheduled areas or any part thereof, or shall apply subject to any exceptions and modifications, but by that, a new law cannot be framed by the Governor of the State. 

Decision

Upon due consideration of arguments extended and precedents cited, the Court said, “Notification No. 5938 and Order No, 5939 dated 14-7-2016, issued by the respondent State cannot be sustained in the eyes of law and must be held ultra vires Articles 14, 13(2), 15 and 16 of the Constitution of India. The impugned notification and order also violate Articles 16(3) and 35(a-i) of the Constitution of India, as such power is vested only in the Parliament and not in the State Legislatures. Consequently, the Governor of the State also cannot exercise such power. The same is ultra vires paragraph 5(1) of Schedule V of the Constitution of India as well, as the Governor has transgressed the limitations, in the garb of non-obstante clause therein.”[Soni Kumari v. State of Jharkhand, 2020 SCC OnLine Jhar 797, decided on 21-09-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsCOVID 19High Courts

Chhattisgarh High Court: A Division Bench of P.R. Ramchandra Menon and Parth Prateem Sahu JJ., dismissed the petition applying the principle of judicial restraint in administrative matters.

The facts of the case are such that petitioner is an enterprise registered under the Micro, Small and Medium Enterprise (Development) Act, 2006, engaged in manufacturing of ‘Ferro Vanadium’ since 1996. Respondent floated tender for purchase of Ferro Vanadium dated 27-6-2019. Petitioner submitted bid and upon conclusion of tender proceeding, the petitioner was declared as successful bidder vide Letter of Acceptance (LoA) dated 9-9-2019 for supply of 120 MT of Ferro Vanadium to various subsidiaries/steel plants of the Steel Authority of India (for short ‘SAIL’). Pursuant to the LoA, respondent BSP placed purchase to be supplied partially by 3-12-2019 and remaining by 15-2-2020. The petitioner failed to complete the second phase of supply within the scheduled period having a backlog of supply. Respondent floated another tender dated 30-6-2020, last date of submission of bid initially being fixed as 14-7-2020, which was extended till 25-7-2020. Petitioner in view of Clause 2 (c) of the RFQ was not eligible to participate in the tender proceeding, hence the petitioner requested respondent BSP vide email dated 11-7-2020 to grant extension of delivery period so that the petitioner may become eligible to submit its bid in RFQ dated 30-6-2020. Petitioner made several efforts including approaching the Chief Executive Officer of respondent BSP vide email dated 22-7-2020. Petitioner submitted its bid on 13-7-2020. Respondent BSP has issued an amended purchase order in favour of petitioner to enable it to clear its previous backlog of 13.5MT of Ferro Vanadium, to which the petitioner complied. Thereafter on 6-8-2020, the petitioner requested respondent BSP to consider its bid and to allow the petitioner to participate in the reverse auction. This email was replied by the respondent BSP vide email dated 12-8-2020 in which it is mentioned that petitioner’s bid was not found suitable as the petitioner could not qualify eligibility criteria as mentioned in Clause 2 (c) of the RFQ. This made the petitioner filed this writ petition.

Counsel for the petitioner Rishabh Garg submitted that due to unprecedented global pandemic ‘Covid-19’ the petitioner could not be able to procure raw material from the international market. It was further submitted that the action of respondent authorities in sitting over the application submitted by petitioner for extension of the delivery period since 22-6-2020 for about 45 days is an arbitrary exercise of powers. He submitted that act of non-issuing order of extension of the delivery period has deprived the petitioner of competing in a tender proceeding which is violative to Article 19 (1) (g) of the Constitution of India.

Counsel for the respondent Ashish Surana submitted that tender issuing authority/body is different than the authority/body which places purchase order and having discretion and authority for granting an extension of delivery /supply period of the period, as mentioned in the purchase order issued by it. It was further submitted that the period was expired much prior to the declaration of lock-down in the country due to pandemic Covid-19 i.e. on 12-2-2020 itself, whereas lock-down has been declared only on 24-3-2020. It was also submitted that petitioner has been sitting on his rights time and again inspite of remedy being available and petitioners being fully aware of the provisions in the tender document.

The Court relied on judgment titled Sterling Computers Limited v. M&N Publications Ltd., (1993) 1 SCC 445 which observed:

“While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the decision making process the courts can certain examine whether ‘decision making process’ was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”

The Court observed that in the tender proceedings while exercising the powers of judicial review under Article 226 of the Constitution of India the Court is having very limited jurisdiction to interfere with the tender proceeding. It is to be seen whether the ‘decision-making process’ is correct or not.

After perusing the facts, submissions and observations laid above, the Court held that tender notification dated 30.6.2020 for procurement of Ferro Vanadium has been issued by the Central Procurement Agency of the SAIL, the petitioner could not meet out the eligibility criteria in terms of Clause 2 (c) as he was having more than 10% of backlog of supply of Ferro Vanadium of earlier purchase order given to him by SAIL, which is the basis of rejection of petitioner’s bid. There is no challenge to Clause 2 (c) of NIT on any grounds.

In view of the above, the petition stands dismissed and disposed off.[RR Ferro Alloys (P) Ltd. v. Bhilai Steel Plant, 2020 SCC OnLine Chh 406, decided on 19-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Op EdsOP. ED.

I. INTRODUCTION

In the days of yore when COVID-19 wasn’t a pandemic and lawyers were still employed, the Supreme Court of India, the country’s Apex Court, would be engulfed in a sea of black every Monday and Friday. The sea of black would be made up of lawyers. They came from various places and were of different shapes and sizes. Some of them were called juniors and the other seniors. The juniors would be divided into two sub-branches, one being the AOR (Advocate on Record) and the other being the counsel. The seniors were also of various types. Seniors were called so either because of their seniority at the Bar or either because they would be anointed as “Senior Counsel” by the Lords themselves! The lawyers all wore black gowns of different sizes, shapes and quality based again upon their own sizes, shapes and quality. They came in hoards, unstoppable and unbeatable; and when they descended on these two days into the lair of the Supreme Court, they created quite a stir, with chaos and cacophony as their weapons of mass destruction. A constitutional philosopher would find this scene quite disturbing. He would blame the Lords for reserving Monday and Friday as “miscellaneous days”. After all, utter madness mostly never existed from Tuesday to Thursday. The Lords sought to justify the retention of “miscellaneous days” because they had the power and discretion to “grant special leave”. It’s in the holy book that they had sworn to uphold. “Don’t blame us,” they would say. “It’s in the Constitution. This is what the framers intended.”

While the framers did not intend to create the storms on “miscellaneous days”, they certainly did intend to draft into the Constitution an article that gave discretionary power to the Supreme Court to “grant special leave to appeal” from any “judgment, decree, determination, sentence or order” passed or made by any “court or tribunal” in India.[1] This article which was originally Draft Article 112 of the Constitution of India, was later adopted as the present-day Article 136 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”).[2] Except in certain cases[3], litigants wanting to invoke the jurisdiction of the Supreme Court had to generally knock on its doors with a petition under Article 136 requesting the highest court of appeal, through their lawyers or in person, to grant special leave. The matters were placed before the Lords on miscellaneous days, generally Mondays and Fridays. Lawyers in hundreds would throng the court with petition and armour to make their client’s case before the Lords. They would plead, beg, argue and pray. But at the end, the Lords would have the last word. While physical presence of the lawyers in the Supreme Court has momentarily been eclipsed by the virtual world, thanks to “that virus”, the article can thankfully still be invoked albeit in a different setting. The Lords may, while hearing a petition under Article 136 “issue notice” to the respondents, which is the first step to enter the sanctum sanctorum of the Supreme Court or they may simply refuse to grant leave and send the valiant lawyer away only to return sometime soon. However, there are times, when the Lords may pass a brief order which could generally read as follows: “Special leave petition dismissed. Question of law kept open.”

The theme of this article is to examine Article 136 of the Constitution and the concept of “keeping the question of law open”. The article has started with this Introduction in Part I, Part II of the article will briefly discuss the appellate jurisdiction of the Supreme Court under the Constitution, Part III will specifically analyse the concept of “special leave” under Article 136 of the Constitution, Part IV will critically deal with “keeping the question of law open” and lastly, the article will conclude in Part V.

II. THE APPELLATE JURISDICTION OF THE SUPREME COURT UNDER THE CONSTITUTION

1. Chapter IV of Part V of the Constitution of India, 1950 which is titled “The Union Judiciary” contains twenty-six Articles (Articles 124 to 147) that deal with the functioning, scope and nature of jurisdiction and powers of the Supreme Court of India. The jurisdiction of the Supreme Court is set out in Articles 131 to 136 of the Constitution. Article 138 confers on Parliament the power to enlarge the jurisdiction of the Supreme Court by law.[4] Article 139[5] confers upon the Supreme Court the powers to issue writs and Article 143[6] deals with the power of the President to refer a question to the Supreme Court for its consideration by a Presidential reference. Article 131 deals with the original jurisdiction of the Supreme Court to hear inter-State disputes or disputes involving any question of law or fact between the Government of India and States.[7] Articles 132 and 133 deal with the appellate jurisdiction of the Supreme Court, to hear cases decided by the High Court, in constitutional and civil matters which can be invoked if a High Court grants a certificate of fitness under Article 134-A[8] of the Constitution. Article 132(1) empowers the Supreme Court to hear appeals from “any judgment, decree or final order of a High Court” in a “civil, criminal or other proceeding” that involves “a substantial question of law as to the interpretation” of the Constitution if the High Court certifies the same.[9] The expression, “final order” includes an order deciding an issue which would be sufficient for final disposal of the case.[10] As per Article 132(3), if such a certificate is given, then any party to the appeal may appeal on the ground that the substantial question of law has been wrongly decided.

2. On the other hand Article 133(1) also confers upon the Supreme Court the power to hear appeals from “any judgment, decree or final order” only in a civil proceeding (subject to the High Court granting a certificate), if the case involves (a) “a substantial question of law of general importance” and (b) “ that in the opinion of the High Court the said question needs to be decided by the Supreme Court.”[11] Article 132 (2) clarifies that any party appealing may “urge as one of the grounds” in the appeal that “a substantial question of law as to the interpretation of this Constitution has been wrongly decided.”[12] The three Judge-Bench of Supreme Court had an occasion to interpret Article 133(1) in State Bank of India v. Sundara Money,[13] (hereinafter referred to as Sundara Money) in which the Court stated,

“A substantial question of law of general importance is a sine qua non to certify fitness for hearing by the Supreme Court. Nay, more; the question, however important and substantial, must be of such pervasive import and deep significance that in the High Court’s judgment it imperatively needs to be settled at the national level by the highest Bench.”[14]

While interpreting the term “needs to be decided by the Supreme Court”, the Court in Sundara Money thereafter approvingly quoted the decision of the Delhi High Court in Union of India v. Hafiz Mohd. Said[15], the relevant portion of which reads as under,

“… Further the word ‘needs’ suggests that there has to be a necessity for a decision by the Supreme Court on the question, and such a necessity can be said to exist when, for instance, two views are possible regarding the question and High Court takes one of the said views. Such a necessity can also be said to exist when a different view has been expressed by another High Court.”

(emphasis supplied)

3. In Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co.[16], the Constitutional Bench of the Supreme Court held,

“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised in palpably absurd the question would not be a substantial question of law.”

4. So far as criminal matters, the Constitution made a departure from the Government of India Act, 1935 which did not have any provision “for the exercise of any criminal appellate jurisdiction by the Federal Court” and it “was assumed that the High Courts would continue to be the final arbiters in criminal cases” unless the Privy Council was willing to grant special leave to appeal.[17] This step-motherly treatment to criminal cases was also pointed out by the certain members of the Constituent Assembly.[18] Pandit Thakur Das Bhargava had stated, “so far as the criminal jurisdiction is concerned, my humble complaint is that it so appears that this Assembly is full of civil lawyers and they do not care about the criminal aspect of the jurisdiction of the Supreme Court.”[19] No provision similar to Article 134 was drafted in the First Draft Constitution by the Constitutional Adviser nor in the Draft Constitution of the Drafting Committee.[20] It was only during the debates of the Constituent Assembly on 13th and 14th June 1949 that Draft Article 111-A dealing with the appellate jurisdiction of Supreme Court with regard to criminal matters was introduced. The said Draft article was eventually adopted as the present day Article 134 of the Constitution.[21]  As per Article 134, an appeal shall lie to the Supreme Court from the judgment, final order or sentence in criminal proceedings of a High Court[22] if the High Court has (a) reversed an order of acquittal on appeal and sentences the accused to death or (b) has withdrawn for trial before itself any case from a subordinate court and in a trial convicted the accused and sentenced him to death or (c) grants a certificate under Article 134-A.

5. Article 135 also confers on the Supreme Court jurisdiction and powers in relation to matters (where Articles 133 or 134 do not apply) in which the erstwhile Federal Court exercised powers immediately prior to the Constitution under “any existing law”, subject to a law passed by Parliament.[23] “Existing law” is defined in Article 366(10) of the Constitution to mean “any law, Ordinance, order, bye-law, rule or regulation passed or made” by any legislature, authority or person having power to make such laws before the commencement of the Constitution.[24]

6. Lastly, Article 136, deals with the discretionary power of the Supreme Court to grant “special leave to appeal” from “any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.”[25] Though the said article does not apply to any decision or order made by any court or tribunal under any law relating to the Armed Forces [see Article 136(2)], the said article confers upon the Supreme Court the widest possible jurisdiction to entertain any order passed in any matter by any Court or Tribunal, at any stage of its proceeding. Being the focal point of this piece, the next part of this article will examine Article 136 and the concept of special leave.

III. SPECIAL LEAVE UNDER ARTICLE 136

1. The Origin of Special Leave

 The expression “special leave to appeal” in Article 136(1) of the Constitution was adopted by the framers from the Government of India Act, 1935 (hereinafter referred to as “the 1935 Act or the said Act” as the case may be). The specific expression “special leave” is found in five places in the 1935 Act. It first appears in the savings clause, namely, Section 110 in Chapter II of the said Act. Section 110(b)(iii) prohibited the Federal Legislature or Provincial Legislatures “to make any law derogating from any prerogative right of His Majesty to grant special leave to appeal from any court” except if the Act expressly provided.[26] Section 205 which deals with the appellate jurisdiction of the Federal Court also uses the expression twice in sub-section (2). As per Section 205(2), where a High Court certifies under Section 205(1) that a case involves “a substantial question of law” as to the interpretation of the 1935 Act or Order in Council, any party may appeal to the Federal Court on the ground that such question of law has been wrongly decided and “on any ground on which that party could have appealed without special leave to His Majesty-in-Council if no such certificate had been given.”[27] The said sub-section goes on to state that “no direct appeal shall lie to His Majesty-in-Council” meaning thereby the Judicial Committee of the Privy Council,[28] “either with or without special leave.[29] Further, Section 206 of the said Act that deals with the power of the Federal Legislature to enlarge the appellate jurisdiction, states in Section 206(1)(b) that the Federal Legislature may provide by an enactment that an appeal may lie in certain civil cases to the Federal Court from a judgment, decree or final order of a High Court, without any certification but no appeal shall lie under any Act unless the Federal Court gives “special leave” to appeal.[30] Sub-section (2) of Section 206 goes on to state that if the Federal Legislature makes “such provision” stated in sub-section (1), then a consequential provision may also be made by the Act for abolishing, in whole or part, direct appeals in civil cases from the High Courts to His Majesty- in- Council, either with or without special leave.[31] In addition to this, Section 208 specifically deals with appeals to His Majesty-in-Council. Sub-section (a) is from a decision of the Federal Court from any judgment given in exercise of its original jurisdiction in certain disputes, without leave and sub-section (b) deals with any other case not included in sub-section (a), “by leave of the Federal Court or His Majesty-in-Council,”[32] meaning thereby, the Judicial Committee of the Privy Council. The leave granted by the Judicial Committee would be “special leave”.[33]

2. The Constituent Assembly Debates

a. Prior to the enactment of the Constitution, “the Privy Council had the power to grant special leave from any civil or criminal matter decided by any court in India.”[34] Though in criminal cases special leave to appeal was granted very rarely by the Judicial Committee.[35] As seen above, the 1935 Act also provided for provisions to grant special leave to appeal to the Privy Council. The framers of the Constitution were quite obviously aware of this position in law. The First Draft Constitution by the Constitutional Advisor included a section similar to Section 206 of the 1935 Act. Section 94, which was included in the First Draft, dealt with the appellate jurisdiction of the Supreme Court to hear appeals from High Court without a certificate. Sub-section (a) set out the types of matters which could be appealed based on valuation or based on whether the appeal involved a substantial question of law and sub-section (b) stated that an appeal could be heard without certificate if the Supreme Court gives special leave to appeal.[36]

b. Subsequently, the Drafting Committee of the Constitution substantially deviated from the aforesaid draft and introduced Draft Article 112. The marginal note of the draft Article read as follows: “Special leave to appeal by the Supreme Court in certain other cases.” As per this draft article, “in cases where the provisions of Article 110 or Article 111” do not apply, the Supreme Court could “in its discretion” grant “special leave to appeal” from any judgment, decree or final order “in any cause or matter, passed or made by any court or tribunal” in India except States specified in Part II of the First Schedule.[37] Such a provision was not found in the 1935 Act.[38] The said draft article was extensively debated on 6th June 1949.[39] Professor Shibban Lal Saksena desired that the article should have within it a power to decide appeals on “principles of jurisprudence and considerations of natural justice.”[40] He stated that “the Supreme Court should be enabled to give judgments which may not be within the letter of the law.”[41] This wish has been fulfilled to a large extent with the Supreme Court interfering in cases where the principles of natural justice have been violated. Shri Krishna Chandra Sharma supported this provision and according to him, “this provision has given a status to the judiciary, equivalent and in no way subordinate to the executive and legislature.”[42] Pandit Thakur Das Bhargava was sceptical of the provision and thought that the article was “exceptionally wide” and was “remnant of the most accursed political right of the divine right of kings” which would make the Supreme Court “above law”.[43] This assertion was rebutted by Shri H.V. Pataskar who supported the article and said that there should be “some independent body which must be the guardian of administration of justice” in all matters.[44] According to him, the Supreme Court was not likely to “grant special leave in any matter whosoever” unless there was a serious breach of the administration of justice which went to the root of the matter.[45] The article was also supported by Shri Alladi Krishnaswami Ayyar who stated that unlike the Judicial Committee of the Privy Council there should be no fetter on the exercise of jurisdiction of the Supreme Court under Article 112.[46] The draft article was amended by the Assembly by deleting the words “except the States for the time being specified, in Part III of the First Schedule, in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply” which gave rise to the present day Article 136.[47]

III. Scope of Article 136 and limitations on exercising discretionary power

 a. Article 136 has been couched in the widest possible terms. It gives discretion to the Supreme Court to grant “special leave to appeal” from any judgment, decree, determination, sentence or order “in any cause or matter” “passed or made” by “any court or tribunal” in the territory of India. The non obstante clause emphasises that the power overrides the limitations on the court’s power to entertain appeals.”[48] The article applies to both final and interlocutory orders and also applies to Tribunals invested with “a part of the judicial power of the State” meaning thereby quasi-judicial authorities.[49] However, it must be remembered that Article 136 does not confer a “right to appeal” but only a “right to apply” for special leave which, if granted, confers a right to appeal so long as the leave is not revoked.[50] Just like the Privy Council, the Supreme Court has put in place self-imposed restrictions when it comes to criminal appeals and will not entertain special leave petitions in criminal cases particularly when there are concurrent findings of fact, save in exceptional cases, such as cases of perversity or impropriety, violation of principles of natural justice, error of law or errors of record or misreading of evidence.[51] The Supreme Court invokes the power under Article 136 in “exceptional circumstances as and when a question of law of general public importance arises.”[52]

b. The Supreme Court “has rightly declined to fetter its discretionary power by laying down “principles” or “rules”.”[53] The Constitutional Bench in Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal[54] has observed that it is “not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested” in the Supreme Court under Article 136 and the limitations “are implicit in the nature and character of the power itself”.[55] Being an “exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations”.[56] The Court went on to state as under:

“ …. It is, however, plain that when the court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has or given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of exercise of this power because the whole intent and purpose of this article is that it is the duty of this court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive…”[57]

c. The aforesaid position has consistently been upheld. As recently as 2016, the Constitution Bench of the Supreme Court in Mathai George [58] refused to restrict the scope of Article 136 and stated that “no effort should be made to restrict the powers” of the Supreme Court under Article 136. The Court said that “it would be better to use the said power with circumspection, rather than to limit the power forever”.[59]

IV. QUESTION OF LAW KEPT OPEN UNDER ARTICLE 136

1. Once the matter reaches the Supreme Court in a petition/application under Article 136, the Court has to exercise its discretionary jurisdiction (and not appellate jurisdiction) to examine whether or not leave should be granted in a given case.[60] If leave to appeal is granted, “the appellate jurisdiction of the Court stands invoked, the gate for entry in the appellate arena is opened,” and if so required, the respondent may be called to oppose the petitioner.[61] The Court may in certain cases dismiss the appeal after granting leave without issuing notice to the respondent.[62] However, if the leave to appeal is dismissed, “the case for invoking the appellate jurisdiction of the court” is not made out.[63] The order can be a speaking or a non-speaking one. In most cases, when the Supreme Court does not wish to exercise its discretion, the Court simply passes a one line order dismissing the special leave petition in limine without assigning any reasons. However, on some occasions, while dismissing the special leave petition, the Court may “leave the question of law open” to be decided in an appropriate case.

2. The question that might be asked is whether it would be proper for the Supreme Court to “leave the question of law open”, whilst exercising its discretionary jurisdiction under Article 136? As has been seen in the previous part of this column,[64] the Supreme Court can only exercise its appellate jurisdiction in constitutional and civil matters under Articles 132 and 133 against “any judgment, decree or final order” when the case involves a “substantial question of law” as to the interpretation of the Constitution or of general importance that in the High Court’s opinion “needs to be decided” by the Supreme Court. The jurisdiction under Articles 132 and 133 can only be invoked if a High Court certifies the same under Article 134-A.[65] In civil proceedings, Article 133 has to be read with Section 109[66] and Order XLV of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC” ) which deals with appeals to the Supreme Court. The non obstante clause in Section 109 and savings clause in Section 112 CPC clarifies that nothing contained in CPC will “affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution.”[67] This certificate also has to be granted in criminal matters, if the High Court feels that the case is a fit one for appeal to the Supreme Court, except in cases falling within Article 134(1)(a) or (b).[68]

3. The discretionary and appellate powers under Article 136 has been explained by the three Judge-Bench of the Supreme Court itself in Khoday Distilleries Ltd.   v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (hereinafter referred to as “Khoday Distilleries”) that has extensively relied upon its previous judgment in Kunhayammed v. State of Kerala .[69] The jurisdiction conferred by Article 136 is divided into two stages: (1) Stage one is “up to the disposal of prayer for special leave to file an appeal” and (2) Stage two which commences only if “the leave to appeal is granted and the special leave petition is converted into an appeal.” Once the special leave petition is converted into an appeal, it is renumbered and treated as a civil or criminal appeal and heard as one under Article 136 by the Supreme Court as an “appellate court”.[70] In such cases, the Supreme Court may, while exercising its “appellate jurisdiction” under Article 136, “reverse, modify or affirm the judgment, decree or order appealed against. Once the Supreme Court grants leave and acts upon such order of the subordinate forum or High Court, the order passed by the subordinate forum or the High Court merges in the decision of the Supreme Court and the Supreme Court’s order remains operative and replaces the order passed by the subordinate forum or the High Court.[71] However, if the special leave petition is dismissed and leave is not granted, there is “no merger” and the order in challenge attains finality.[72] In such cases, it makes no difference whether a special leave petition is dismissed by either a speaking or a non-speaking order. The only difference between a speaking and non-speaking order passed under Article 136 is that the speaking or reasoned order rejecting the special leave petition may contain a “statement of law” declared by the Supreme Court which will be binding under Article 141[73] of the Constitution on all courts in India or the order may contain findings or directions that would bind the parties to the lis and the subordinate forum or High Court.[74] A non-speaking order binds neither the parties to the lis nor does it lay down a declaration of law under Article 141 of the Constitution.

4. Therefore, it is respectfully submitted that if the Supreme Court dismisses the special leave petition by either a speaking or non-speaking order, it would not be proper on the Court’s part to leave the question of law open for future consideration. A dismissal results in finality exclusively qua the parties to the dispute and therefore, the Supreme Court cannot go beyond the scope of its jurisdiction under Article 136 and “leave the question of law open.” This would defeat the very purpose of Article 136 of the Constitution. Further, there is no provision in the Constitution that gives the Supreme Court power to “leave a question of law open” including in Article 136 (howsoever widely it may be interpreted). Except for Article 143,[75] the Constitution only speaks of a “substantial question of law” and nor merely a “question of law”. While it is true that the “question of law” could include within its fold a “substantial question of law”, such a question would have to be certified as one by a High Court under the Constitution. This power vests only with the High Court and not the Supreme Court. While the Supreme Court can always examine a “question of law” under Article 136, after special leave is granted, it is respectfully submitted that it cannot reject special leave and at the same time leave the question of law open. The discretionary power under Article 136 ends when the special leave petition is rejected, and the said power cannot be exercised to “leave the question of law open.”

5. Prior to the judgment of Khoday Distilleries,[76] the Gujarat High Court had an opportunity to deal with the expression “question of law kept open” in Collector v. Liquidator, Petrofills Cooperative. Ltd.,[77] where one of the issues before the High Court was whether the High Court could reconsider a decision if the Supreme Court kept the “question of law open.” The Gujarat High Court relying on a previous decision its own Court in CIT v. Itegra Engg. India Ltd.[78] held that it was only the Supreme Court that could reconsider the question of law in the future.[79] According to the Gujarat High Court, the expression “question of law is kept open” would “only guard against any future contention that the Supreme Court has confirmed the ratio of the judgment under challenge whereby either giving rise to a possible contention of merger or that even in future cases, the Supreme Court would be precluded from considering such an issue in better facts”.[80] It is respectfully submitted, firstly that Khoday Distilleries has settled the issue that dismissal of the special leave petition would not result in merger and the dismissal of the petition will not result in any expression of opinion on the judgment under challenge and secondly even if the expression “question of law kept open” is absent in the order of the Supreme Court, it would still not preclude the Supreme Court from considering such an issue at a later stage. The dismissal of the special leave petition is nothing more than a refusal to exercise discretionary jurisdiction.

6. By using the expression “question of law kept open/or is kept open” while dismissing a special leave petition, the Supreme Court could give an excuse to cheeky lawyers, like yours truly, to persuade the High Court to grant a certificate under Article 134-A on the ground that the “question of law” is “substantial” and of “general importance” and since the Supreme Court has kept the question open, the said question “needs to be decided by the Supreme Court.”

V. CONCLUDING COMMENTS

According to the author, Article 136 of the Constitution serves two purposes. One purpose is to ensure that justice is administered in the right manner and the other purpose is to ensure finality even while dealing with interim orders. The article is flexible enough to ensure that both purposes are served. Leaving the question of law open and at the same time refusing special leave to appeal, is like blowing hot and cold at the same time. Such orders lack a certain degree of certainty and above all run counter to the article itself. As has been mentioned in the previous part, nothing prevents the Court from examining a question of law in appeal under Article 136 once leave is granted. Therefore, “leaving the question of law open” for a future date is wholly unnecessary. In future, it would be advisable for the Court to not leave the question of law open while dismissing a special leave petition. This would certainly ensure both certainty and finality.


* The author is a practicing advocate at  Bombay High Court and the National Company Law Tribunal, Mumbai

[1] Article 136.

[2] Constituent Assembly Debates, Official Report, Sixth Reprint, Vol. VIII, pp. 593, 634-642. See also Vijay Hansaria, The Chronicles of Indian Constitution, Mohan Law House Publishing Pvt. Ltd, New Delhi, Edn. 2019, pp. 227,228

[3]Except in cases where the writ jurisdiction of the Court under Article 32 is invoked, suits filed under Article 131 of the Constitution, appeals under Articles 132-134 and Presidential references under Article 143.

[4] 138. Enlargement of the jurisdiction of the Supreme Court.

[5] 139. Conferment on the Supreme Court of powers to issue certain writs.

[6]  143. Power of President to consult Supreme Court.

[7] 131. Original jurisdiction of the Supreme Court

[8] 134-A. Certificate for appeal to the Supreme Court

[9] 132. Appellate jurisdiction of the Supreme Court in appeals from High Courts in certain cases.

See also Order XVIII-A of the Code of Civil Procedure, 1908.

[10] Ibid

[11] 133 Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

[12] Ibid. Also see Section 109 read with Order XLV of the Code of Civil Procedure, 1908 

[13] (1976) 1 SCC 822 

[14] Ibid, p. 824 para 2

[15] Ibid 1973 SCC OnLine Delhi 182 :  ILR (1973) 2 Del 673, 676

[16] 1962 Supp (3) SCR 549  para 6

[17] Gadbois, George H., Supreme Court of India : The Beginnings, Edited by Vikram Raghavan and Vasujith Ram, Oxford University Press, Second impression 2018, p. 35.

[18] Supra Note 2 pp. 596 to 633. See the speeches of Shri Rohini Kumar Chaudhari, Pandit Thakur Das Bhargava, Prof. Shibban Lal Saksena, Frank Anthony, Dr. P.K. Sen, Dr. P.S. Deshmukh, Pandit Lakshmi Kanta Maitra, Shri K.M. Munshi, Shri Jaspat Roy Kapoor, Dr. Bakshi Tek Chand and Dr. B.R. Ambedkar

[19] Ibid p. 598

[20] Hansaria, Vijay, The Chronicles of Indian Constitution, Mohan Law House Publishing Pvt. Ltd, New Delhi, Edition 2019, pp. 224, 225

[21] Ibid

[22] 134. Appellate jurisdiction of Supreme Court in regard to criminal matters.

[23] 135. Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.

[24] Article 366 (10)  “existing law” 

[25] 136. Special leave to appeal by the Supreme Court.

[26] Section 110. Savings

[27] 205. Appellate jurisdiction of Federal Court in appeals from High Courts in British India

Click to access data.pdf

[28] See Section 1 of the Judicial Committee Act, 1844 and Section 3 of the Judicial Committee Act, 1833

[29] Supra Note 28

[30] Section 206. Power of Federal Legislature to enlarge appellate jurisdiction https://www.legislation.gov.uk/ukpga/Geo5and1Edw8/26/2/enacted/data.pdf

[31] Ibid

[32] 208. Appeals to His Majesty-in-Council https://www.legislation.gov.uk/ukpga/Geo5and1Edw8/26/2/enacted/data.pdf

[33] Gadbois, supra Note 17 p. 53

[34] Seervai H.M., Constitutional Law of India, Fourth Edn., Vol. 3, Universal Law Publishing Co, p. 2647 para 25.57. See also Renton, A. Wood. “Indian and Colonial Appeals to the Privy Council.” Journal of the Society of Comparative Legislation, Vol. 1, No. 3, 1899, 345–380,  JSTOR, www.jstor.org/stable/751912. Accessed 26 June, 2020

[35] Gadbois, George H. “Evolution Of The Federal Court Of India: An Historical Footnote.” Journal of the Indian Law Institute, Vol. 5, No. 1, 1963, p.19 JSTOR, www.jstor.org/stable/43950330. Accessed 26 June, 2020.

[36] Section 94. Appellate jurisdiction of Supreme Court in appeals from High Courts in Provinces in other cases.- Subject to such rules as the Supreme Court may make in this behalf, an appeal shall lie to the Supreme Court from a judgment, decree or final order of a High Court in a Province without any such certificate as aforesaid if –

(a) The amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees, or the judgement, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and where judgment, decree or final order appealed from affirms the decision of the court immediately below, appeal involves substantial question of law; or

(b) The Supreme Court gives special leave to appeal.

The section can be found in Hansaria, supra Note 20 pp. 227 and 228.

[37] Article 112. Special leave to appeal by the Supreme Court in certain other cases.--The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India except the States for the time being specified in Part III of the First Schedule, in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply. Draft Articles 110 and 111 correspond to the present-day Articles 132 and 133.

[38] Supra Note 2 p. 637. See the speech of Shri Krishna Chandra Sharma.

[39] Ibid, pp. 634 -642

[40] Ibid, p. 636

[41] Ibid.

[42] Ibid, p. 637

[43] Ibid, p. 638

[44] Ibid, p. 639

[45] Ibid

[46] Ibid

[47] Ibid, p. 640

[48] Seervai, supra Note 34 p. 2647 para 25.57. See also Bharat Bank Ltd. v. The Employees of Bharat Bank Ltd., Delhi,  (1950) SCR 459

[49] Ibid

[50] Ibid, p. 2650 para 25.61

[51] Ganga Kumar Srivastava v.  State Of Bihar, (2005) 6 SCC 211, 217 para 10

[52] Ibid

[53] Seervai, supra Note 34 p. 2649 para 25.60

[54]   (1955) 1 SCR 941 http://www.scconline.com/DocumentLink/49Iq0DOZ

[55] Ibid, p. 69 para 7

[56] Ibid

[57] Ibid

[58] (2016) 7 SCC 700   http://www.scconline.com/DocumentLink/w660v299

[59] Ibid, p. 702 para 6

[60] Kunhayammed v. State of Kerala, (2000) 6 SCC 359, 371-372, para 14.

Extracts of the judgment have been reproduced in Khoday Distilleries Limited  v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal, (2019) 4 SCC 376, 388-397 para 19-23. See also the doctrine of merger.

[61] Ibid p. 389 para 19

[62] Ibid

[63] Ibid

[64] Part II

[65] Supra Notes 9 and 11.

[66] Section 109. When appeals lie to the Supreme Court

[67] Section 112. Savings 

[68] Supra Note 22

[69] Supra Note 60.

[70] Ibid, p. 389 para 19

[71] Ibid, p. 393 para 44 (iii)

[72] Ibid, p. 390 para 20

[73] Article 141. Law declared by Supreme Court to be binding on all courts– The law declared by the Supreme Court shall be binding on all courts within the territory of India.

[74] Supra Note 60 p. 394 para 23(v)

[75] Supra Note 6

[76] Supra Note 60

[77]Misc. Civil Application (For Review) No. 1412 of 2015 in SCA No. 4353 of 2008, decided on 23-10-2015 (Guj).

The decision has been further followed by a Single Bench of the Gujarat High Court in Hemal Ishwarbhai Patel v. Veer Narmad South Gujarat University, 2016 SCC OnLine Guj 10037

[78] 2013 SCC OnLine Guj 7389, para 10.

It is pertinent to note that the Lucknow Bench of the Allahabad High Court in Faujdar Singh v. State of U.P., 2016 SCC OnLine All 3877, has taken a contrary view.

[79] Collector v. Liquidator, Petrofils Coop. Ltd., Misc. Civil Application (For Review) No. 1412 of 2015 in SCA No. 4353 of 2008, decided on 23-10-2015, para 27 (Guj).

[80] Ibid, para 26

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ. has quashed all FIRs filed against the foreign nationals who indulged in Tablighi Jamat. Justice Nalawade pronounced the Judgment authored by him, in which certain scathing observations were made which are quoted verbatim:

“There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading the Covid-19 virus in India. There was virtually persecution against these foreigners. A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.”

Interestingly, however, it is to be noted that the brief of the Judgment which follows is based on the observations and reasoning of Justice Nalawade only. As Justice Sewlikar has agreed only with the operative part of the Judgment but has “disagreed with some reasoning”. It has been stated that the reasoned Judgement of Justice Sewlikar will follow.

Also, after the Judgment was pronounced, M.M. Nerilkar, APP, requested the Court to put a stay on the order. This request was, however, not acceded to by the Court.

Case against the petitioners

The prosecution case was that the petitioners-foreign nationals had come to Ahmednagar in groups with some Indian nationals and they had visited many places, they were living in masjids (mosques) during their stay. On 14-3-2020, Covid-19 lockdown was declared by the Maharashtra State Government and by the notification dated 23-3-2020 direction was given to close the religious places. Powers were given to District Authorities by the Government to exercise powers under the Epidemic Diseases Act, 1897. By exercising these powers, District Magistrate had issued prohibitory orders and directions were given to close all public places. In spite of prohibitory orders and conditions of visa, the petitioners indulged in Tablighi activity. Announcements were made at public places to ask the persons who had attended Markaz Masjid to come forward voluntarily for testing them in respect of Covid-19 virus, but they did not come forward voluntarily and they had created threat of spreading Covid-19 virus. It was necessary for them to give necessary information to the local authority in Form ‘C’, but they had given incorrect addresses in Form ‘C’ and they were actually living in Masjids. Visa conditions prohibited Tablighi work by foreign national tourists. Therefore, charge-sheets were filed against the petitioners under Sections 188, 269, 270 and 290 of the Penal Code and various provisions of the Maharashtra Police Act, 1951; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

It is noticed that people are afraid of test taken for detection of virus. That is why the infected persons are brought very late to the hospitals and they die. In the present matter, it is not the case of the State that the petitioners were hiding in Masjid or other place in Ahmednagar to avoid the test.

Petitioners’ case

It is the contention of the petitioners, who are mainly foreign nationals, that they came to India on a valid visa issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. On their arrival at the airport, they were screened and tested for Covid-19 virus and only when they were found negative for virus, they were allowed to leave the airport. They were visiting various places of India and particularly Ahmednagar to observe the religious practices of Muslims. After their arrival in Ahmednagar district, they had informed to District Superintendent of Police about their arrival and that was done much prior to the date of registration of the crime against them. Due to the lockdown, the vehicular moment was stopped and the persons were not allowed to leave the residential places to prevent the spreading of Covid-19. The masjid had given shelter to them as due to lockdown order, hotels and lodges were closed. Some order was issued by the Collector, but that was not actually prohibitory order and they were not involved in illegal activity including the breach of order of District Collector. Even at Markaz, they had observed norms of physical distancing. While granting visa, they were not asked to inform local authorities about their visit to those places, but they had informed local officers. Under the conditions of visa, there was no prohibition to visit religious places like masjids and there was prohibition to visit containment areas and the connected areas with regard to defence matter. They were not involved in a breach of orders or in propagating Muslim religion.

In view of the Articles of Indian Constitution like Articles 25 and 21, when visa is granted to foreigners, such foreigners cannot be prevented from visiting masjids, if they go there to observe religious practices or to offer only namaz.

What is Tablighi Jamat

As noted by the Court, Tablighi Jamat movement was founded by Maulana Mohammad Iliyas in 1927 in Delhi and this movement is popular in villages and peasants. This movement is focused on religion rather than political aspects of Islam and this movement spread throughout Muslim world from 1950 onwards. Muslims from all over the word come to India as they are attracted to the reform movement of Tablighi Jamat and they visit Markaz Masjid from Delhi. It is a continuous process and it appears that there are arrangements of the stay also made by the Muslims at Markaz Delhi. Considering the dates of arrival of the petitioners to India and their departure from Delhi also shows that there was no particular day fixed for the congregation or any function. Initially, the Court thought that for some function arranged by Tablighi Jamat at Markaz, the foreigners had come, but the record shows that there was no function and it is a continuous activity. From so many years Muslims from various countries have been coming to India to visit that place and they have been coming on a tourist visa. The visits of these foreigners to masjids from India were not prohibited and even discourse was not prohibited. The activity of Tablighi Jamat got stalled only after declaration of lockdown in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things needs to be kept in mind while considering the cases filed against the petitioners.

There is nothing on the record to show that the Indians were prevented from accommodating persons in the Masjid or from supplying meals to the persons including the foreigners. The statements of the witnesses recorded by police are stereotype and it can be said that word to word, line to line and para to para of the statements are copied.

Court’s opinion and decision

The main thrust of the prosecution was on breach of so-called conditions of the visa. The other main contention was in respect of breach of orders issued by the authorities created under the Disaster Management Act, 2005 and the orders issued under Epidemic Diseases Act, 1897.

(i) On violation of Visa Conditions

If there is breach of visa conditions, it can be said that offence under Section 14(b) of the Foreigners Act is committed by the foreigners. To make out this offence, it needs to be shown that there was some visa condition in existence at relevant time and the foreigners have acted in breach of that condition.

Perusing the latest updated Visa Manual, the High Court noted that “there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses”.

Discussing the evolution of Tablighi Jamat and the meaning of “discourse”, the Court observed:

Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society and the development achieved in the material world. In any case, even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam.

The Court also noted that the record showed that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabic, French, etc. It was concluded that it can be said that the foreigners may have the intention to know the ideas of Tablighi Jamat about the reformation. It was stated that unless a particular programme of a foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specifc allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.

The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures to Muslims in Masjid. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.

Having noted that freedoms under Article 19 are not available to foreigners, the Court stated that it needs to be kept in mind that when the permission is given to the foreigners to come to India under visa, at least Article 25 comes in to play. Then there are Articles 20 and 21 which are also available to foreigners.

Record shows that it was not made known to the holders of visa that they were prohibited from visiting Masjids or staying in Masjid. On the contrary, in the past and in updated guidelines instructions were issued to the effect that they were allowed to visit the religious places.

Considering the schedule of petitioners’ arrival in India and the dates when they were taken in custody, the Court said that there is more possibility that they got infected in India and they were not already infected when they arrived in India. Further, admittedly screening at the airport was done of these petitioners before allowing them to leave the airport. The Court reiterated that criminal cases cannot be tried on suspicion.

“Reformation is continuous process in every religion and such process is necessary for peaceful co-existence. Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation”

Noting India’s culture and tradition of “Atithi Devo Bhav” which means that our guest is our God, the Court said that the circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by the Covid-19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus, etc.

Finally, noting provisions of the Constitution, the Court concluded:

“Article 20 of the Constitution of India shows that the acts which were not prohibited at the time when they were committed cannot be treated as offence and violation of law subsequently. In view of the record which is already discussed, it was not possible to go with the presumption that there was a violation of visa conditions.”

In such circumstances, the Court held that the material was not sufficient to make out prima facie case for the offence punishable under Section 14(b) of the Foreigners Act.

(ii) On “Smell of Malice”

Discussing what must have tempted the authorities to issue such directions against the foreigners like the petitioners,  the Court noted that the action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tablighi Jamat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needed to be considered by the Court. IT was observed:

“There were protests by taking processions, holding dharana at many places in India from atleast prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that the Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is an important consideration when relief is claimed of quashing of FIR and the case itself.”

  (iii) On violation of District Authority’s orders

Perusing the record and discussing the alleged offences against the petitioner, the Court was not inclined to accept that there was any violation of the order passed by District Authorities. The Court went on to observe:

“It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is a practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. Through hard work over the past years after independence, we have reconciled religion and modernity to a great extent. This approach helps participation of most in developing process. We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united.”

The Court concluded that Maharashtra police acted mechanically. It appears that the State Government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CrPC and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, charge sheets are filed by police.

Therefore, it was held that it will be abuse of process of law if the petitioners are directed to face the trial in aforesaid cases. As a result, all FIRs filed against the petitioners were quashed by the Court.

[Konan Kodio Ganstone v. State of Maharashtra, 2020 SCC OnLine Bom 869, decided on 21-08-2020]

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Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.

A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.

Bench on perusal of the material on record, stated that to observe the  requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.

Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.

As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.

Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.

Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.

In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.

Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]