Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In a writ petition filed under Article 227 of the Constitution of India, after being aggrieved by the order passed by Chhattisgarh Rent Control Tribunal (Tribunal), wherein the Tribunal has affirmed the order dated 13.02.2020 passed by the Rent Controlling Authority, Raipur (Authority), the division bench of P. Sam Koshy and Parth Prateem Sahu, JJ. has held that the open land which is not being used for agriculture purpose and has been given on lease for a particular period comes under the definition of ‘Accommodation’ under Section 2(i)(1) of Chhattisgarh Accommodation Control Act, 2011 (the Act of 2011).

In this case, the respondent leased out a portion of the property in favour of the petitioner and the lease/rent was executed for a period of 15 years. Thereafter, a fresh rent agreement was entered into for the period of 10 years. After the expiry of the lease in 2018, the respondent issued a notice of eviction under Section 12(2) read with Schedule-II Clause 11(h) of the Act of 2011. Despite the said notice, the petitioner did not evict the premises, thus, the respondent filed an application before the Authority seeking an order of eviction. The Authority has directed the petitioner to immediately vacate the said premises within a period of one month. Further, aggrieved by the said order the petitioner filed an appeal before the Tribunal, however, the Tribunal also has affirmed the order passed by the Authority. It is this order which is under challenge in the present writ petition.

The Court noted that the writ petition has been filed on three grounds:

  • Since the agreement entered between the parties was not an agreement in consonance with the requirement as laid down under the Act of 2011, the provisions of the Act of 2011 would not be applicable.
  • The provisions of the Act of 2011 also would not be attractive in the present case as it was only land which was leased out for rent by the respondent and the Act will only be applicable upon an accommodation/building and the land attached to the accommodation of the building.
  • The Indian Oil Corporation, of which the petitioner was a dealer, was a necessary party, and in the absence of the Corporation being made a party before the authorities the two proceedings deserve to be rejected on the ground of non-joinder of necessary party.

The Court concerning the first ground, observed that the said issue is no longer res integra in the light of a recent decision of the Division Bench of this Court in the case of Shrawan Kumar Saraf v. Ravikant Mishra WPC No.650 of 2020, wherein the Court held that “non adherence of the Chhattisgarh Rent Control Act, 2011 or for that matter the agreement between the parties not being in accordance with the Act would not debar under law to pursue his application before the Rent Controlling Authority”.

Further, the Court referred to the English and even Hindi version of the definition of an ‘Accommodation’ under Section 2(i) of the Act of 2011 that states, an accommodation “means any building or part of a building, whether residential or non-residential, leased out by the landlord to the tenant and includes open space, staircase, grounds, garden, garage and all facilities and amenities forming part of the agreement between them of any land which is not being used for agricultural purposes.” and observed that “a plain reading of the definition of an “accommodation”, more particularly the one in Hindi, would clearly reflect that the definition of accommodation is inclusive of any land which is not being used for any agricultural work”.

Thus, the Court viewed that, for the purpose of attracting the Act of 2011, all that is required is the lease deed executed in writing between the landlord and the tenant in respect of any building or a part of a building whether for residential or non-residential purpose and would also include any land which is not being used for agriculture purpose.

Moreover, the Court observed that another fact which needs to be appreciated at this juncture is that the earlier law governing the field i.e., the Chhattisgarh Accommodation Control Act, 1961 (the Act of 1961) also had the same definition of accommodation under Section 2(a) of the Act of 1961. Thus, the Court held that the provisions of the Act, 2011 would also be applicable upon the property taken on rent or lease, even if it is open land.

Further, concerning the third issue, the Court viewed that the rent agreement or lease deed was executed between respondent and petitioner, and Indian Oil Corporation was not involved at any point of time. Further, the proceedings having been initiated under Section 12(2) read with Clause 11(h) of Schedule-II, the application could have been filed only between the petitioner and the respondent and the dealership agreement entered between the petitioner and the Indian Oil Corporation would not be of much relevance when it comes to a lease/ rent agreement entered between the petitioner and the respondent. Thus, the dispute is between the petitioner and the respondent who are the tenant and the landlord.

Moreover, the Court observed that the lease between the petitioner and the respondent came to an end w.e.f. 04.04.2018. Thereafter, there has been neither any renewal of the lease/rent agreement nor any fresh agreement was entered between the parties. Thus, there is no further right available with the petitioner to assert any claim over the said property, coupled with the fact that notice of eviction has already been issued by the respondent, and directed the petitioner to vacate the premises and hand over possession to the respondent within a period of four months.

[Sourabh Fuels v. Suresh Kumar Goyal, 2022 SCC OnLine Chh 1634, decided on 16.09.2022]

Advocates who appeared in this case :

For Petitioner: Advocate Sabyasachi Bhaduri;

For Respondent: Advocate Pranjal Agrawal;

Advocate Vidhi Agrawal.

Patna High Court
Case BriefsHigh Courts

Patna High Court: In a writ petition filed for the quashing of the illegal appointments of Vice-Chancellors, Pro Vice Chancellors and other officers of the Universities of State of Bihar, the division bench of Sanjay Karol, CJ. and S. Kumar, J. has without expressing any opinion on merits disposed of the petition on certain terms, and directed the Chancellor, Universities of Bihar, to consider and decide petitioner’s grievances.

The Court noted that the present petition has been filed for quashing the illegal appointments of Vice-Chancellors, and other officers of the Universities of State of Bihar as it was violating Section 10 of the Bihar State Universities Act, 1976. Further, for directing the authorities to investigate the financial illegalities committed by the universities and also, for commanding the respondent to institute an enquiry by the Special Vigilance Unit to find the quantum of funds manipulated by the higher officials.

The Court took note of the ruling in D.N. Jeevaraj v. State of Karnataka, (2016) 2 SCC 653 wherein the Court observed that procedural technicalities ought to take a back seat in public interest litigation. Further, courts are more liberal in entertaining public interest litigation for issues pertaining to good governance, however, litigation essentially directed against one organisation or individual ought not to be entertained or should be rarely entertained as other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies. Thus, the Court disposed of the petition on the following terms:

  • Petitioner must approach the authority within a period of four weeks from today by filing a representation for redressal of the grievance.
  • The authority must consider and dispose of it expeditiously by a reasoned and speaking order within a period of four months from the date of its filing and communicate the order assigning reasons to the petitioner.
  • Follow principles of natural justice and provide due opportunity of hearing and opportunity to place on record all relevant materials/documents to the parties.

Moreover, the Court provided liberty to the petitioner to approach the appropriate forum/Court, subsequently on the same and subsequent cause of action.

[Rohit Kumar v. State of Bihar, 2022 SCC OnLine Pat 2411, decided on 1.09.2022]

Advocates who appeared in this case :

Manini Jaiswal, Advocate, for the Petitioner;

Pawan Kumar, Advocate, for the Respondent.

SCC Part
Cases ReportedSupreme Court Cases


Arbitration and Conciliation Act, 1996 — Ss. 8, 11, 7, 2(1)(h), 16 and 45 — Non-signatory or non-party to arbitration agreement: Arbitration against, or by non-signatory or non-party to arbitration agreement, when may be invoked, discussed. The scope, ambit and validity of Group of Companies doctrine, explained. Doubting the rulings in Chloro Controls, (2013) 1 SCC 641, and cases following it, matter referred to larger Bench. [Cox & Kings Ltd. v. SAP India (P) Ltd., (2022) 8 SCC 1]

Arbitration and Conciliation Act, 1996 — Ss. 8, 11, 7, 2(1)(h), 16 and 37 — Group of Companies Doctrine: Applicability of Group of Companies Doctrine to make a non-signatory or non-party group company (i.e. a company who has not signed the arbitration agreement) a party to arbitration proceedings, explained. [ONGC Ltd. v. Discovery Enterprises (P) Ltd., (2022) 8 SCC 42]

Civil Procedure Code, 1908 — Or. 23 R. 3 and S. 89 — Consent decree passed in Lok Adalat: Setting aside of consent decree passed in Lok Adalat, on ground that matter was referred to Lok Adalat by trial court cannot be approved for doubting genuineness of consent decree. [Hemantha Kumar v. R. Mahadevaiah, (2022) 8 SCC 140]

Civil Procedure Code, 1908Or. 6 R. 17: Amendment of suit is not permissible when the same changes the nature of suit. [Asian Hotels (North) Ltd. v. Alok Kumar Lodha, (2022) 8 SCC 145]

Constitution of India — Arts. 226 and 227 — Law declared by High Court — Binding effect of: There is primacy of orders of High Court over those of statutory tribunals in case of conflicting orders. Law declared by the High Court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. Further, tribunals are subordinate to High Court insofar as the territorial jurisdiction of High Court is concerned. In case of conflicting orders passed by statutory tribunals and the High Court, it is the orders passed by the constitutional courts, which would prevail over the orders passed by the statutory tribunals. [State of A.P. v. Raghu Ramakrishna Raju Kanumuru, (2022) 8 SCC 156]

Protection of Women from Domestic Violence Act, 2005 — Ss. 17(1) & (2) and S. 19 — Nature and scope of right to reside in shared household: Scope of right to reside in the shared household conferred under DV Act and categories of women upon whom the said right is conferred, discussed. Wide and comprehensive scope of “domestic relationship”, explained in detail. [Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90]

Op EdsOP. ED.


The sole objective of the Insolvency and Bankruptcy Code, 20161 (IBC or the Code) is to provide an eloquent manner for revival, reorganisation, and resolution of distressed or bankrupt entities/persons in a time-bound manner. The very contemplation, advancing a time-bound mechanism for the resolution process makes it distinct from the previously existing laws relating to insolvency and bankruptcy. The legislation was brought to consolidate and amend the laws with respect to resolution and insolvency of corporate persons, partnership firms and individuals in a time-bound manner. However, within a period of just 5 years, the Code saw a series of amendments to make it more methodical and market driven. One such instance was the insertion of Section 12-A2 into the Code vide the IBC Amendment Act of 20183 which paved the way for erstwhile management of the corporate debtor and the creditors to settle the matters without facing the jostle of the court proceedings.

Lokhandwala Kataria Construction (P) Ltd. v. Nisus Finance and Investment Managers LLP4 was the first matter, in which both the parties were permitted by the Supreme Court to settle the matter using its inherent powers under Article 142 of the Constitution of India5, which states that in order to serve justice, the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order in any cause or matter pending before it. Furthermore, the Supreme Court set aside the order of the National Company Law Appellate Tribunal (NCLAT), whereby the appellate authority did not exercise its inherent powers under Rule 11 of the National Company Law Appellate Tribunal Rules, 20166. It provides for the “inherent powers” to the tribunals to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of process of the law. 

Purpose of Section 12-A

The introduction of Section 12-A in the Code validated the idea of settlements between the creditors and the erstwhile management, accelerating the resolution process of the corporate debtor as there stood no provisions for withdrawal in the Code, prior to the introduction of the abovementioned provision. In pursuance of this, the Insolvency Law Committee made the recommendation of altering the law to allow for withdrawal7.

The insertion of the abovementioned section was done through the IBC (Second Amendment) Act, 2018 w.e.f. 6-6-2018. The Code, before the amendment was made, did not provide any provisions for the settlement of debts between the creditors and the erstwhile management. It is noteworthy that neither the National Company Law Tribunal (NCLT) nor NCLAT ever exercised the inherent powers to grant withdrawal of applications that were admitted under Sections 78, 99 or 1010 of the Code. Despite the mutual consent of both the parties even if the applicant, creditors, and erstwhile management/promoters of the corporate debtor agreed to settle the matters outside court, after the admission of the application, the Code did not justify rendering the desired outcomes. Considering the scenario prior to the insertion of Section 12-A to the Code, it is indeed ironic that the inception of the Code was to warrant timely disposal of insolvency matters, but at the same time, it failed to address the prominence of an out-of-court settlement. Aggrieved by the limited remedies left to the creditors as well as the erstwhile management, parties started approaching the Supreme Court for relief. The Supreme Court under Article 142 of the Constitution of India passed orders for allowing the withdrawal of applications against the corporate debtor under the corporate insolvency resolution process (CIRP). In Uttara Foods & Feeds (P) Ltd v. Mona Pharmachem11, the Supreme Court gave directions to the Government to embody a provision under the Code for allowing withdrawal of application after the admission of CIRP, to prevent such applications to be filed before Supreme Court.

Withdrawal of application before the CoC is constituted

If an application is filed for withdrawal under Section 12-A of the Code, before the constitution of committee of creditors (CoC), the interim resolution professional (IRP) is duty-bound to place it directly before the adjudicating authority for its approval. It is pertinent to mention that the approval of the CoC stands invalid in such cases.

In Anuj Tejpal v. Rakesh Yadav12, the NCLAT, Delhi Bench held that:

41. Rule 11 of the NCLAT Rules, 2016 provides that “Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal.” The Supreme Court in Swiss Ribbons (P) Ltd. v. Union of India13 has clearly discussed the stage and has observed that “we make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of the NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case”. It is a well-settled proposition of law that substantive law takes precedence over a regulation and Section 12-A clearly refers to the withdrawal of an application under Sections 7, 9 or 10 after the constitution of the Committee of Creditors, seeking approval of 90% of the voting share of the CoC. Keeping in view the ratio of the Supreme Court in Swiss Ribbons (P) Ltd.14 and the aforenoted reason, we hold that in the facts and circumstances of the attendant case before us, we do not find force in the contention of the proposed intervenor applicants that the application for withdrawal, filed, prior to the constitution of CoC ought to be mandatorily dealt with the provisions under Regulation 30-A(1). We find it just and proper to exercise our inherent powers under Rule 11 in this case.

Withdrawal of application after the CoC is constituted

To move an application under Section 12-A of the Code, the procedure prescribes that the interim resolution professional shall forward the same to the CoC for approval. It is imperative to note that a majority vote of 90% is required for the approval. If the proposal crosses the first hurdle of the majority vote, it is then presented to the adjudicating authority. Further, it is at the discretion of the adjudicating authority to allow or dismiss such applications.

The question that is important to be addressed here is that of the 90% of the majority vote for the withdrawal of the application. It is a well-established fact that if a company goes under CIRP, all creditors of the company are subjected to the threat of financial loss. The idea behind the majority vote being 90% is to discourage individual actions and encourage collective actions and the decision to settle the matter must be unanimously agreed. This was substantiated in Shaji Purushothaman v. Union Bank of India15 wherein the NCLAT, New Delhi Bench held that:

9. If an application under Section 12-A is filed by the appellant, the “Committee of Creditors” may decide as to whether the proposal given by the appellant for settlement in terms of Section 12-A is better than the “resolution plan” as approved by it and may pass appropriate order. However, as such decision is required to be taken by the “Committee of Creditors”, we are not expressing any opinion on the same.

Therefore, the decision of withdrawal shall be taken by the capable creditors who possess an interest to revive the business of the corporate debtor. Further, in Vallal RCK v. Siva Industries and Holdings Ltd.16 , the Supreme Court categorically held that:

23. As already stated hereinabove, the provisions under Section 12-A IBC have been made more stringent as compared to Section 30(4) IBC17. Whereas under Section 30(4) IBC, the voting share of CoC for approving the resolution plan is 66%, the requirement under Section 12-A IBC for withdrawal of CIRP is 90%.

24. When 90% and more of the creditors, in their wisdom after due deliberations, find that it will be in the interest of all the stakeholders to permit settlement and withdraw CIRP, in our view, the adjudicating authority or the appellate authority cannot sit in an appeal over the commercial wisdom of CoC. The interference would be warranted only when the adjudicating authority or the appellate authority finds the decision of the CoC to be capricious, arbitrary, irrational and dehors the provisions of the statute or the Rules.

Withdrawal of application after Form G is released

One of the very frequently raised doubts pertaining to withdrawal is whether withdrawal can be made after Form G i.e. expression of interest (EOI) is issued. It is relevant to state herein that in Swiss Ribbons (P) Ltd. v. Union of India18 the Supreme Court held that:

81.…Regulation 30-A(1) of the CIRP Regulations, 2016 is not mandatory but is directory for the simple reason that on the facts of a given case, an application for withdrawal may be allowed in exceptional cases even after issue of invitation for expression of interest under Regulation 36-A of the CIRP Regulations, 201619.

The same was reiterated in Brilliant Alloys (P) Ltd. v. S. Rajagopal20 wherein the Supreme Court held that an application for withdrawal under Regulation 30-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (the CIRP Regulations) can also be made after the public invitation for claims was issued. The expression “shall” to be read as “may” and, consequently, the provision was held to only be directory. Further, in V. Navaneetha Krishnan v. Central Bank of India21, the NCLAT, New Delhi Bench, held that the application can be withdrawn only on the condition that it gets majority vote of 90% by the CoC.

Further, in Satynarayan Malu v. SBM Paper Mills Ltd.22 the NCLT Mumbai, allowed the withdrawal application after the resolution plan was approved by the CoC, stating that:

9. In the light of the foregoing detailed discussion and on due consideration of the provisions of the statute as also the connected Regulations it is hereby concluded that the proposal of this applicant for one-time settlement is in the benefit of this corporate debtor for its revival along with all the stakeholders. Moreover, it is a practical solution through which Allahabad Bank is also recovering 100% debt amount as affirmed by the bank authorities concerned through an affidavit dated 27-11-2018 conveying their consent for withdrawal of the petition on account of acceptance of one-time settlement. As a result, circumstances of this case demands that permission be granted to allow the withdrawal of application/petition (CP 1362/2018).

Therefore, considering the abovementioned precedents, it is imperative to state herein that under Section 12-A IBC and Regulation 30-A(1) of the CIRP Regulations, 2016 an application filed under Sections 7, 9 or 10 can be withdrawn after the issuance of Form G, provided the proposal gets 90% of the majority vote of the CoC. However, it is also imperative to state herein that Regulation 30-A of CIRP Regulations, 2016 prescribes that where the application is made under clause (b) after the issue of invitation for expression of interest under Regulation 36-A, the applicant shall state the reasons justifying withdrawal after issue of such invitation.

Withdrawal of application after the initiation of liquidation process

Another bone of contention is withdrawal after the initiation of liquidation process. The answer to this is, yes. An application filed under Sections 7, 9 or 10 can very well be withdrawn after the liquidation process has commenced. It is imperative to state herein that the pivot of the Code is to maximise the assets of the corporate debtor in order to save it from the wrath of liquidation.

In V. Navaneetha Krishnan v. Central Bank of India23, the NCLAT, New Delhi Bench held that:

5. However, in view of Section 12-A even during the liquidation period if any person, not barred under Section 29-A24, satisfy the demand of “Committee of Creditors” then such person may move before the adjudicating authority by giving offer which may be considered by the “Committee of Creditors”, and if by 90% voting share of the “Committee of Creditors”, accept the offer and decide for withdrawal of the application under Section 7 of the Insolvency and Bankruptcy Code, the observation as made above or the order of liquidation passed by the adjudicating authority will not come in the way of adjudicating authority to pass appropriate order.

Further, in V.S. Varun v. South Indian Bank25 the NCLT, Bengaluru Bench, held that:

7. The above-referred provisions pertaining to the withdrawal of the applications filed under Sections 7, 9 or 10 IBC, 2016 provide for filing an application by the applicant in the company petition. In the instant case, the company petition was filed under Section 10 IBC, by the corporate applicant i.e. M/s Aradhya Wire and Ropes Pvt. Ltd. itself. On admission of the company petition the corporate debtor was initially taken over by the RP and after passing of the orders of the liquidation by the Liquidator. The instant application has been filed by the Liquidator on receipt of the application from one of the promoters of the corporate debtor. The NCLAT in Shweta Vishwanath Shirke v. Committee of Creditors26held that the promoters/shareholders are entitled to settle the matter in terms of Section 12-A and in such case, it is always open to the applicant to withdraw the application. Hence, we are of the view that the instant application filed by the liquidator under Section 12-A of the IBC, 2016, is maintainable.

Therefore, an application filed under Sections 7, 9 or 10 of the Code, after the commencement of liquidation process can be withdrawn through the provisions of Section 12-A of the Code read with Regulation 30-A of the CIRP Regulations, 2016. However, the commercial wisdom of the CoC cannot be overlooked in any such scenarios.


In view of the above, it shall be concluded that an application filed under Sections 7, 9 or 10 of the Code can very well be withdrawn vide provisions of Section 12-A IBC, the adjudicating authorities may allow or disallow the withdrawal of such applications. It is pertinent to state herein that the applications can be withdrawn not only after issuing an invitation of EOI but in some cases, even after receiving resolution plans. In recent times, both legislature and the judiciary have strongly advocated for the settlement of cases as it promotes a win-win situation for both parties and also helps unclog the judicial system. The courts of law have, time and again, upheld and focused on the importance of protecting the interests, not only of the creditors but also of the corporate debtor, wherever possible. The adjudicating authorities have always taken a concrete stand, that ordering liquidation must be taken into consideration after all remedies have been exhausted, and hence be treated as a last resort.

Various contentions have also been raised to reflect the pitfalls of this provision and how it might affect the entire idea of the Code. It is imperative to state herein that it can be apprehended that a misuse of this provision might rescind the intent of the Code i.e. revival of the corporate debtor into a mere instrument for recovery and settling private disputes. A few stalwarts of IBC have also questioned about the withdrawal process stating that such actions of allowing withdrawal shall result in wastage of time and effort that has been invested during the whole CIRP period. However, it is pertinent to note herein, that such flexibility may go a long way in protecting the value of the assets of the corporates and various stakeholders. The original promoters with vested interests in the companies are better aware of the nitty-gritty involved in managing their company and these provisions further uphold the notion with which IBC was enacted, that is, protection of interests of the stakeholders and maximisation of the value of the assets of the corporate debtor. On the other hand, a very vital question arises for consideration i.e. regarding the fate of other creditors. It is pertinent to mention that even though insolvency proceedings are in rem and affect the substantive rights of rest of the creditors, the opinions of the other creditors who had filed their claims have not been considered while withdrawing. Further, considering the scenario mentioned hereinabove it is evident that Section 12-A does not mention about the interest of other creditors at all. Consequently, if the claims of other creditors are not settled, it indeed would lead to agitation of the other creditors and call for another round of litigation as there is a legislative vacuum on this point and suitable modifications may be required in this regard, or else the provision might call for ramifications that would destroy the intent behind bringing in the very provision under the Code. A suggestive measure in order to keep the other creditors in consideration is to inform them about the withdrawal of the main application whereupon the CIRP was initiated in the first place. An announcement informing the public at large, akin to the announcement made by interim resolution professional at the stage of initiation of CIRP, could be one of the ways through which it can be done appropriately.

At this instance, it is essential to note that the judiciary has very well considered the interest of other creditors in many matters and one such order has been very recently passed in Swamy Traders v. SNS Starch Ltd.27, wherein the NCLT Hyderabad Bench, held that,

3. Since the IRP reported that six operational creditors have raised their claims before the IRP, let the IRP inform all such operational creditors/petitioners that they are at liberty to seek recall of the earlier order in view of the order passed in this company petition.

Therefore, the IRP/RP must inform the rest of the creditors about the withdrawal of the application.

Further, in Anuj Tejpal v. Rakesh Yadav28 the counsel raised questions on the withdrawal as the rest of the stakeholders' interest are overlooked and they would be the one suffering as the claim made by them would still be unsettled.

Further, in Jai Kishan Gupta v. Green Edge Buildtech LLP29, the NCLAT, New Delhi Bench held that:

16. The question, however, remains that the Supreme Court has in the above para 82 left discretion with the adjudicating authority to allow or disallow an application for withdrawal or settlement. The last sentence of the paragraph states that “this will be decided after hearing of the parties concerned and considering all relevant factors on the facts of each case”. Thus, adjudicating authority has to consider all relevant factors on facts of each case and to take a decision. Para 83 of the judgment in Swiss Ribbons30 has dealt with a decision being taken by CoC under Section 12-A and left the door open that if CoC arbitrarily rejects a just settlement and/or withdrawal claim the NCLT, and thereafter NCLAT can set aside such decisions under Section 60 of the Code31.

Further, in Sushil Ansal v. Ashok Tripathi32, the NCLAT New Delhi Bench, held that:

12.…All parties concerned will be required to be heard before allowing withdrawal or settlement. It is also manifestly clear that the exercise of inherent powers is discretionary and invoked only to meet the ends of justice or prevent abuse of process of court. The adjudicating authority or the Appellate Tribunal will have to keep in view interest of various stakeholders and claimants before allowing such withdrawal or settlement. Scuttling of corporate insolvency resolution process cannot be permitted to jeopardise the legitimate interests of other stakeholders, more particularly in a real estate project where fate of innumerable allottees would be hanging in balanced….

14. Admittedly, the interim resolution professional has received 283 claims from allottees of different projects, financial creditors, operational creditors, other creditors and employees as detailed in Para 10 of the reply filed by Respondent 3 and the settlement deed does not take care of the interest of claimants other than Respondents 1 and 2. Therefore, allowing of withdrawal of application on the basis of such settlement which is not all-encompassing and being detrimental to the interests of other claimants including the allottees numbering around 300 would not be in consonance with the object of “the I&B Code” and purpose of invoking of Rule 11 of the NCLAT Rules. In a case where interests of the majority of stakeholders are in serious jeopardy, it would be inappropriate to allow settlement with only two creditors which may amount to perpetrating of injustice. Exercise of inherent powers in such cases would be a travesty of justice.

Further, in Gopal Krishan Bathla v. Crown Realtech (P) Ltd.33 the NCLAT New Delhi Bench held that:

7. The dictum of the Supreme Court is loud and clear. The National Company Law Tribunal can exercise inherent powers vested in Company Appeal (AT) (Insolvency) No. 28 of 2020 under Rule 11 of the National Company Law Tribunal Rules, 2016 to allow or reject an application for withdrawal or settlement prior to the constitution of the “Committee of Creditors.” However, such exercise of power would depend on consideration of all relevant factors in each individual case, after providing an opportunity of hearing to all parties concerned. A similar power is vested in this Appellate Tribunal under Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 and it is not disputed that such power can be exercised in appropriate cases on similar consideration as delineated by the Supreme Court. The question that arises for consideration is whether the instant case is a fit one for the exercise of such power.

The intent of Section 12-A IBC is to legislatively recognise post-admission settlement cases, which was introduced based upon the recommendations of the Insolvency Law Committee Report34. However, certain changes may be brought in to make it more effective and just.

*Founder, AB Legal. Author can be reached at <>.

**Senior Associate, AB Legal.

***Associate, AB Legal.

1. Insolvency and Bankruptcy Code, 2016.

2. Insolvency and Bankruptcy Code, 2016, S. 12-A.

3. Insolvency and Bankruptcy Code ( Second Amendment) Act, 2018.

4. (2018) 15 SCC 589.

5. Constitution of India, Art. 142.

6. National Company Law Appellate Tribunal Rules, 2016, R. 11.

7. Report of the Insolvency Law Committee.

8. Insolvency and Bankruptcy Code, 2016, S. 7.

9. Insolvency and Bankruptcy Code, 2016, S. 9.

10. Insolvency and Bankruptcy Code, 2016, S. 10.

11. (2018) 15 SCC 587.

12. 2021 SCC OnLine NCLT 5794.

13. (2019) 4 SCC 17.

14. (2019) 4 SCC 17.

15. 2019 SCC OnLine NCLAT 1151.

16. 2022 SCC OnLine SC 717.

17. Insolvency and Bankruptcy Code, 2016. S. 30(4).

18. (2019) 4 SCC 17, 87.

19. Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, Regn. 36-A.

20. (2022) 2 SCC 544.

21. 2018 SCC OnLine NCLAT 904.

22. 2018 SCC OnLine NCLT 32358.

23. 2018 SCC OnLine NCLAT 904.

24. Insolvency and Bankruptcy Code, 2016, S. 29-A.

25. 2022 SCC OnLine NCLT 218.

26. 2019 SCC OnLine NCLAT 1049.

27. 2022 SCC OnLine NCLT 214.

28. 2021 SCC OnLine NCLT 5794.

29. 2019 SCC OnLine NCLAT 916.

30. (2019) 4 SCC 17.

31. Insolvency and Bankruptcy Code, 2016, S. 60.

32. 2020 SCC OnLine NCLAT 680.

33. 2020 SCC OnLine NCLAT 1070.

34. Report of the Insolvency Law Committee.

Op EdsOP. ED.



Narcotic drugs and psychotropic substances are commonly used for an ample number of medical and scientific uses (even in that case one has to obtain the required permit or authorisation) however they cannot be used or are abused and trafficked since they could be harmful to any society. India after the enactment of the Narcotic Drugs and Psychotropic Substances Act, 19851 (NDPS Act) has taken a strict approach through the statutory control over narcotic drugs which has also been envisaged under Article 47 of the Indian Constitution.2 It mandates that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. It is a special Act, and it has been enacted with a view to making stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.ces.

The same principle of preventing the use of drugs except for medicinal use was also adopted in the three drug-related international conventions, namely, the Single Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has signed and ratified the abovementioned conventions.

Look out circular (LOC) is issued to make sure that an individual (accused) who is absconding or wanted by law enforcement agencies is restricted to leave the country. It is mainly used at immigration checkpoints at international airports and seaports by the immigration branch. The look out circular is issued under Section 103 of the Passports Act, 1967 by the Ministry of Home Affairs (MHA) after considering the report provided by the Narcotics Control Bureau in the cases of NDPS.

Since the NDPS Act is a special Act passed by the legislature that has laid down its own procedure and implementation in terms of search and seizure and investigation. However, in cases of NDPS where a crime has a jail term of fewer than 7 years then investigating authorities could serve notice to the accused under Section 41(a) of the Criminal Procedure Code (CrPC)4 under the head “When police may arrest without warrant”. Bail provision and admissibility of the confession made by the accused under Sections 375 and 676 of the NDPS Act respectively have different applicability in comparison to the procedure laid down in CrPC.

Does an issuance of Look Out Circular violate Articles 19 and 21

The objective behind the NDPS Act is simply to consolidate and amend laws relating to narcotic drugs which aim to prohibit the consumption, trafficking, and cultivation of drugs; including manufacturing, distribution, sale, and purchase. Issuance of LOC in the NDPS Act is similar to that of other cases involving preventing an individual from absconding from the jurisdiction. The look out circular is different from an arrest since LOC does not necessarily lead to arrest. LOCs can be of different types. They can seek to merely restrict a person against whom it has been issued with an objective to inform the investigation agencies concerned. The performa of the LOC also contains a request to detain the individual at the local police/investigation agency, which generally leads to arrest.

It is an established law that Articles 197 and 218 are an integral part of the right to free movement but questioning the violation needs to answer whether there was a violation of the due procedure established by law. For instance, if the investigation agency has failed to establish any evidence against the accused therefore the procedure laid down by the law of the country includes providing the right to be heard and every other procedural law then it would defeat the purpose of Articles 19 and 21 and could violate the right to free movement.

The right to travel abroad has been held to be a fundamental right protected under Article 21 of the Constitution of India. The Supreme Court in Satwant Singh Sawhney v. D. Ramarathnam9, after analysing various English judgments as well as judgments passed by the various High Courts in India concluded that under Article 21 of the Constitution of India, no person can be deprived of his right to travel except according to procedure established by law.

The Supreme Court in Maneka Gandhi v. Union of India10 held that the right to travel abroad as a fundamental right guaranteed under Article 21 of the Constitution of India, vide para 35 of the said case the Supreme Court held as follows:

35. … the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or Article 19(1)(g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be. Now, passport can be impounded under Section 10(3)(c) if the Passport Authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public. The first three categories are the same as those in Article 19(2) and each of them, though separately mentioned, is a species within the broad genus of “interests of the general public”.

Further, in Priya Parameswaran Pillai v. Union of India11 the Delhi High Court held that the extent of abuse of the process was evident. The petitioner, an environmental activist, was termed an “exceptional case” as defined under the OM for indulging in “anti-national activities”. Accordingly, Ms Pillai was not informed about the LOC. The Delhi High Court held that the actions of the respondents were in violation of Ms Pillai's fundamental rights under Articles 21, 19(1)(a) and 19(1)(g) of the Constitution, and called for the withdrawal of such a LOC.

Further, in the judgment of Karti P. Chidambaram v. Bureau of Immigration12, the Madras High Court held that it is quite clear, that it can no longer be argued that the right to travel abroad is not a fundamental right. It is, as a matter of fact, a second generation right which flows from the right to life and personal liberty conferred on the citizens, under Article 21, which can be taken away only by procedure, as established in law. While it may be true that the right to go abroad does not include the right to freedom of speech and expression; in some cases, the curtailment of the right to travel abroad could impact a citizen’s right of free speech and expression.

Also, in the judgment of Satwant Singh Sawhney v. D. Ramarathnam13, the Supreme Court held that the right to travel abroad was a part of personal liberty under Article 21 of the Constitution; in which Court relied on CBI v. Asif Khader14, it was submitted that there are prescribed guidelines for issuance of LOC and the respondent's case does not come under any of the requirements of the guidelines and therefore, there is no justification on the part of the petitioner in issuing a LOC which has the effect of restricting the movement of the respondent and thereby violating the right guaranteed to the respondent under Article 21 of the Constitution.

On the other side trail of judgments that favour the issuance of LOC, the Supreme Court while upholding the Madhya Pradesh Police Regulations in Gobind v. State of M.P.15 had struck a note of caution and vide para 28, observed as follows:

28. The right to privacy, in any event, will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute.

Further, in Nikesh Tarachand Shah16 the Supreme Court while considering the question of fundamental rights pertaining to life and personal liberty, held that fundamental rights, particularly Article 21 of the Constitution, were nothing less than sacrosanct and that constitutional courts would come to the aid of a person who is able to demonstrate the violation of such sacrosanct rights.

Therefore, it can be said that after all, it all depends on judicial pronouncement since considering the factual scenario on case-to-case basis, a judicial mind should be applied to whether the procedure established by law has been followed or not and if not then it could well be said that it violates Article 19 read with Article 21 of the Indian Constitution.

What circumstances urge the issuance of LOC

The Allahabad High Court in G.S.C. Rao v. State of U.P.17 has held that such LOCs cannot be issued as a matter of course, but only when reasons exist where the accused deliberately evades arrest or does not appear in the trial court. In these circumstances, it was held in G.S.C. Rao case18 that condition precedent for issuance of the LOC was absent and the same was held liable to be set aside.

Further in the judgment of Sumer Singh Salkan v. Director19, where the Delhi High Court held that the respondent could not have issued a look out circular in the absence of any material fact and evidence with the respondent to conclude that the petitioner is deliberately evading arrest/trial. In Sumer Salkan case20, the following questions arose for consideration:

A. What are the categories of cases in which the investigating agency can seek recourse of look out circular and under what circumstances?

B. What is the remedy available to the person against whom such look out circular has been opened? What is the role of the court concerned when such a case is brought before it and under what circumstances, the subordinate courts can intervene?

Those questions were answered as follows:

A. Recourse to LOC can be taken by investigating agency in cognizable offences under the Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants (NBWs) and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest.

B. The person against whom LOC is issued must join the investigation by appearing before IO or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered the issuance of LOC and explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where the case is pending or has jurisdiction over the police station concerned on an application by the person concerned.

The Delhi High Court21 held that “Recourse to an LOC can be taken by (an) investigating agency in cognizable offences under (the) Penal Code (IPC) or other penal laws, where the accused was deliberately evading arrest or (was) not appearing in the trial court despite non-bailable warrants and other coercive measures, and there was likelihood of the accused leaving the country to evade trial or arrest,” and thus directed the Ministry of Home Affairs to formulate guidelines for the same since it is strict in nature and misusing such stringent laws can be proved to be draconian law.

Therefore, as per the existing MHA guidelines and court directions from time to time, a look out circular can be issued in respect of a person who,

(a) is accused of a cognizable offence and is evading arrest; or

(b)is accused of a cognizable offence and is not appearing in a court for trial; or

(c)is accused of a cognizable offence and is likely to abscond or leave the country to avoid his arrest; or

(d)is an anti-national.


The aim and objective of the NDPS Act is to strictly prohibit the consumption, possession and trafficking of illicit drugs and psychotropic substances and commission of crime in this act would be treated severely. Thus, the investigation officer as well enjoys greater power in the sense of investigation including search and seizure and arrest. However, arrest issued under CrPC is distinctive in nature and its implementation that from look out circular since it does not restrict your movement per se but only restrict one to evade the arrest or fleeing away from jurisdiction.

It is well-settled law that Article 19 read with Article 21 is an integral part of the right to free movement but questioning the violation needs to answer whether there was a violation of the due procedure established by law. Thus, issuing a look out circular explicitly does not violate Article 19 read with Article 21 of the Indian Constitution but only if it is in violation or breach of any procedure laid down by the law. Specifically, in the case of the NDPS Act the investigation officer vests with enormous power with respect to search and seizure and submitting reports relying on which a LOC is issued thus several procedures have been laid down along with circumstances in which LOC can be issued clarified by Delhi High Court judgment and MHA guidelines. Thus, if the procedure has been followed the issuance of LOC does not violate any right since rights also come with reasonable restrictions. For example, bail provision and admissibility of the confession made by the accused under Sections 37 and 67 of the NDPS Act respectively have different applicability in comparison to the procedure laid down in CrPC. Thus, procedure laid in CrPC and the NDPS Act (special Act) is distinctive in nature and thus followed differently.

† Fifth year law student, BA LLB (Hons.), NALSAR University of Law, Hyderabad. Author can be reached at <>/<>.

†† Third year law student, BA LLB (Hons.), B.R. Ambedkar National Law University, Sonepat.

1. Narcotic Drugs and Psychotropic Substances Act, 1985.

2. Constitution of India, Art. 47, Directive Principal of State Policy contains provisions for public health, standard of living and prohibition of intoxicating drinks and drugs.

3. Passports Act, 1967, S. 10.

4. Criminal Procedure Code, 1973, S. 41(a), under head “When police may arrest without warrant”.

5. Narcotic Drugs and Psychotropic Substances Act, 1985, S. 37, under head “Offences to be cognizable and non-bailable”.

6. Narcotic Drugs and Psychotropic Substances Act, 1985, S. 67, under head “Power to call for information, etc.”

7. Constitution of India, Art. 19, Right to freedom of speech and expression.

8. Constitution of India, Art. 21, Right to protection of life and personal liberty.

9. AIR 1967 SC 1836.

10. (1978) 1 SCC 248.

11. 2015 SCC OnLine Del 7987.

12. 2018 SCC OnLine Mad 2229.

13. AIR 1967 SC 1836.

14. 2021 SCC OnLine Kar 15228.

15. (1975) 2 SCC 148.

16. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.

17. 2018 SCC OnLine All 5991.

18. 2018 SCC OnLine All 5991.

19. 2010 SCC OnLine Del 2699.

20. 2010 SCC OnLine Del 2699.

21. Sumer Singh Salkan v. Director, 2010 SCC OnLine Del 2699.

Op EdsOP. ED.


The provisions concerning the subject of natural guardianship in India are highly unequal and discriminatory. All the personal laws, be it the laws of Hindus, Muslims, or other communities, give a preferential right to father over the mother in matters of natural guardianship, thereby relegating mothers to a secondary position. This often creates hardships for divorced, separated, deserted or single mothers who sacrifice many of their rights and bear the brunt of the inequitable laws. With the gradual breakdown of the patriarchal outlook of Indian society and the rising status of women as independent and capable beings, the balance has been tilting in favour of the mothers who are both breadwinners for their households and able caretakers of their minors – thereby placing them on a par with their male counterparts.

In this paper, discrimination against mothers and derogation of their rights as natural guardians has been analysed. For this purpose, the paper has been divided into four parts. The first three parts analyse the statutes and judicial opinions on the mother’s right to natural guardianship. They involve a comprehensive review of the two important judgments – Githa Hariharan v. RBI1 and ABC v. State2 – on the question of natural guardianship rights of mother. The fourth part discusses the question of how discriminatory the laws on natural guardianship are and the consequential difficulties they create for mothers. Position of natural guardianship laws in foreign jurisdictions has also been discussed to substantiate the argument. Lastly, the changes which need to be incorporated in the laws have also been highlighted and the need for having equal and joint guardianship laws for married couples, and preferential natural guardianship for single mothers has been emphasised.

Natural guardianship: As revealed by the Indian laws

The legal framework governing the family matters in India is peculiar. Every religious community has its own set of laws that govern family matters of inter alia marriage, succession, and guardianship. Hence, people practising the religions of Hinduism, Islam, Christianity, and Zoroastrianism are governed by a bundle of laws distinctive to their religion.

With respect to the law on guardianship, the Hindus are governed by the Hindu Minority and Guardianship Act, 19563 (hereinafter referred to as “the 1956 Act”). Under the Act, a guardian is someone who looks after the person, or property, or both of a minor (a person below eighteen years of age) and the natural guardian of a minor is the father and after him, the mother.4 This provision has been reinterpreted to reflect changes in the law’s functioning and the same will be discussed later in the paper. The father is the natural guardian of an adopted son and after him the mother.5 The mother has guardianship rights over her illegitimate child and after her it is the father.6 Therefore, for a legitimate child and an adopted son, the father is the natural guardian and for an illegitimate child it is the mother.

As a natural guardian under the Hindu law, the father, or the mother exercise the power to do all acts which are advantageous for the minor and necessary for the protection or benefit of the minor’s estate, provided that they take permission from the court before mortgaging, charging, transferring, selling, gifting, exchanging, or otherwise any part of the immovable property of the minor.7

Under the Muslim customary law too, the natural guardian of a minor is the father, and the mother only has rights to custody of the minor till they attain a certain age. During the lifetime of the father and even after his death, for both legitimate and illegitimate children, it is only the male relatives on the paternal side that enjoy the rights of natural guardianship.8 Mother only enjoys custody over the illegitimate children.9 The father has exclusive powers to make decisions regarding the person, property, or marriage of the minor and can take any decision on their behalf which are beneficial to the minor’s person or estate.

For matters not mentioned in the Muslim customary law and for governing guardianship among people from other religions, the Guardians and Wards Act, 189010 (hereinafter referred to as “the 1890 Act”), which is a secular law, takes precedence. Under the 1890 Act, the courts are barred from appointing a guardian for a minor whose father or mother is not unfit to look after the minor.11 However, mother was included in the provision by an amendment in 2010.12

From an overview of the aforementioned laws, one can discern that the rights of father as a natural guardian of the minor outweigh the recognition of mothers as natural guardians. Since independence, the fathers have exclusive power over the person and property of the minor and mothers have been relegated to a secondary position. Their fundamental right to equality under Article 1413 of the Constitution of India was conspicuously forgotten and the mandate of Article 1514 to not discriminate on the basis of sex overlooked. Provisions of law which only recognise father as the natural guardian of the minor were being applied to the country.

To remedy the shortcomings of the laws in force and to improve the stance concerning the rights of mothers over their minor children, the Supreme Court in Githa Hariharan v. RBI15 interpreted the relevant provisions of the 1956 Act and the 1890 Act to incorporate the recognition of the mothers on a close footing with that of the fathers.

Recognition of mothers as natural guardians – The first win

Before this case, the courts recognised the father as the natural guardian of the minor and as long as the father was alive only, he could act as the natural guardian.16 Githa Hariharan v. RBI17 was a watershed judgment on the subject-matter of guardianship and paved the way for recognition of mothers as natural guardians. However, in the opinion of the author, the judgment of the Supreme Court on the matter is unsatisfactory and missed the opportunity to elevate the status of mothers as true natural guardians.

Facts of the case

The mother (the petitioner) and father had jointly applied for relief bonds in the name of their son before Reserve Bank of India (RBI) (the respondent). The parents had mutually agreed that the mother would invest the money held by the minor and while doing so would act as the minor’s natural guardian. Consequently, the mother signed the requisite forms as the natural guardian of the minor. However, RBI insisted that the mother either get the form signed by the father who was the natural guardian or get a certificate from the appropriate authority declaring the mother as the natural guardian. This led to a petition being filed in the court with the prayer for striking down Section 6(a) of the 1956 Act and Section 19(b) of the 1890 Act as they recognise the father as the only natural guardian and are hence violative of the constitutional rights guaranteed under Articles 14 and 15. The petitioner prayed for the declaration of the mother as the natural guardian.

Arguments raised

The petitioner argued that the 1956 Act and the 1890 Act demoted the mothers to a secondary position by recognising only the father as the natural guardian. Only “after” the lifetime of the father was the mother recognised as a natural guardian. Thus, the laws violated Articles 14 and 15 of the Constitution.

Judgment of the Supreme Court

The Supreme Court observed that the definition of “guardian” and “natural guardian” under the 1956 Act did not make any discrimination between mothers and fathers as such and since the mother was mentioned as a guardian under Section 6 of the 1956 Act, then it could not be said that the mother could not be a natural guardian. However, Section 6(a) of the 1956 Act states that the natural guardian of a minor is the “father, and after him, the mother”. A quick reading of the section would suggest that mothers acquire the right to natural guardianship only after the father, which would mean that she gets the right only after the death of the father.

While deciding on matters of guardianship and custody, the welfare of the minor is of the greatest consideration. For the welfare of the minor, guardianship could be given to the mother or any other suitable person by the courts even when the father was alive. This would be possible because the interests of the minor are of paramount importance. Thus, the words “after” as they appear in Section 6(a) would have to bow down to the welfare and interests of the minor.

Therefore, to remedy the anomaly in the law and to bring it in line with the rights ensured in the Constitution, the Supreme Court made such a harmonious interpretation of the provision at hand, so it is in tandem with the provisions of the Constitution. It remarked that “after” need not necessarily mean “after the lifetime” of the father, it could also be constructed as “in the absence of,” where the term absence would signify the absence of the father from the care of the minor’s person or property. Thus, in cases where the father and the mother have mutually decided that the mother should be the guardian; in cases where the father is completely absent from the life of the minor and takes no interest in their welfare; in cases where the father is physically unable to look after the interests of the minor because he lives in a different place or sufferers from some mental and/or physical incapacity and in other similar cases; the mother can act as the natural guardian of the minor.

Analysis of the judgment and its aftermath

Even before the Supreme Court rendered its landmark judgment in Githa Hariharan v. RBI18, in an earlier case of Jijabai Vithalrao Gajre v. Pathankhan19 the Supreme Court had given relief to a mother on similar arguments. In that case, the mother had leased property of her minor daughter when the father was alive. On appeal, the Supreme Court had observed that the mother had separated from the father and was solely looking after the minor and her interest and welfare. Though the father was alive, he had been absent from the life of the minor and had been as good as non-existent. Hence, the court recognised the mother as the natural guardian of the minor immaterial of the fact that the father was alive.

In Jijabai Vithalrao Gajre case20, the decision was given based on the facts and peculiar circumstances of the case. However, in Githa Hariharan case21, the verdict of the Supreme Court constructed a general interpretation of Section 6(a) of the 1956 Act and Section 19(b) of the 1890 Act and brought about a change in how the provisions were to be applied from the judgment onwards.

One cannot deny that Githa Hariharan case22 was monumental in availing natural guardianship rights to mothers. Yet, it is wished that the Supreme Court should have taken another step in the direction and should have struck down Section 6(a) of the 1956 Act as unconstitutional. Even with the interpretation which the Supreme Court has accorded to Sections 6(a) and 19(b) and the word “after” being constructed as “in absence of”, it is felt that the rights of a mother are still restricted to a certain extent.

It is reprehensible to observe that it took fifty-two years since independence of the nation for mothers to get natural guardianship rights. However, even these hard fought and achieved rights are minimal. By constructing “after” as “in absence of,” the laws once again put shackles on the rights of mothers while giving a free hand to the fathers. From the perspective of the mothers, what would have been truly a rewarding judgment in Githa Hariharan case23 would have been the unconditional recognition of the mothers as natural guardians. If the mothers had been given equal status alongside the fathers as the natural guardians, the judgment would have been welcomed with greater applause. However, in its place, the Supreme Court offered a conditioned concessional relief to the mothers by recognising their right to guardianship in only certain instances where the father was absent from the minor’s life. This still restricts the rights of the mothers only to the circumstances where the father is absent from the minor’s life. This is not much different than getting natural guardianship after the death of the father. Therefore, on arguments that Article 14 of the Constitution favours equality and Article 15 favours no discrimination on the grounds of sex, the Supreme Court could have struck down Section 6(a) as invalid and in violation of the Constitution and thereby given equal rights to natural guardianship to both, the mother, and the father.

Nevertheless, one cannot forget that changes in society do not happen overnight but take months or sometimes even years. Getting conditional rights to guardianship is still better than the previous provision of getting no rights until after the death of the father. Hence, the Supreme Court’s decision in Githa Hariharan24 can be termed as a small victory for all the mothers who had been suffering due to the unsatisfactory provision of the 1956 Act and the 1890 Act. With the consideration of the minor’s best interest and welfare weighed along with which one of the parents is better suited to look after them competently, it cannot be denied that if the mother is the one who is best suited and the one who will genuinely look after the welfare of the minor, then she would get the right to become the natural guardian. Essentially, the rights of parents are not above the welfare of the minor.

In Ramesh v. Anjanabai25, some property had been gifted to the plaintiff Ramesh, a minor, by his uncle. The plaintiff’s mother had acted as the natural guardian and signed the papers. The mother then gifted some share of the property to the wife of the plaintiff’s uncle to reach a compromise on disputes about the property. Later, the plaintiff, through the father as his natural guardian, had filed a suit for recovery of the property claiming that as per Section 6(a) of the 1956 Act, the mother could act as the natural guardian only after the death of the father and that since the property was alienated without the permission of the court, the gift of property was illegal. The Bombay High Court rejected the plaintiff’s contention that the mother could become a natural guardian only after the death of the father while taking support of Githa Hariharan26 and observed that the plaintiff’s father had been absent from the plaintiff’s life all these years and had not cared about the minor’s well-being. It was the mother who had been taking care of the plaintiff and had signed on the documents as the minor’s natural guardian and entered into the transactions as such. Therefore, in the absence of the father, the mother was the natural guardian of the minor and the property had been gifted by her in the capacity of the natural guardian to reach a compromise. The question of taking the court’s consent did not arise. Therefore, the gift of property by the mother, who was the natural guardian, was valid.

After going through the abovementioned case, it would be safe to say that though in the case, the mother was recognised as a natural guardian, reaching the same conclusion would have been much easier if mothers had been given equal and complete rights of natural guardianship irrespective of whether the father was alive or not. Moreover, while talking about mothers in these cases, one is only referring to those mothers who are either married, divorced, or separated.

With the rising inflow of modernised culture, India’s traditional culture has infused with modern ideas. Today, the traditional stance towards an unwed woman becoming a mother is being relaxed. While a taboo around the subject subsists, a cloud of uncertainty loomed around the rights of unwed mothers to natural guardianship who did know but were unwilling to disclose or did not know who the father of their child was. The discourse around the rights of unmarried mothers and their recognition as natural guardians began to increase.

Recognition of unwed mothers as natural guardians – The second win

Soon after Githa Hariharan case27, the rights of the mothers, who had been once married, over the guardianship of their children became crystal clear. Now, the question of unwed mothers’ natural guardianship rights over their children when the fathers were absent from their lives came to the forefront for consideration before the Supreme Court in ABC v. State (NCT of Delhi).28

Facts of the case

The petitioner was an unwed mother who was well educated, employed and Christian by faith. Since the birth of her son, she had looked after all the interests of the minor and taken care of his needs without any involvement from the father’s side in the child’s upbringing. Meaning to make her son her nominee in all her bank accounts and insurance policies, she had approached the appropriate authorities who told her that she either had to disclose the name of the father as the natural guardian or get a certificate from the court declaring herself as the natural guardian. She applied to the courts under Section 729 of the 1890 Act to be declared as the guardian and published a notice in the local newspaper of the same but refused to reveal the name or address of the father. She even gave an affidavit swearing that in the future, if any claim was made by the father to the guardianship of the minor, the guardianship could be altered as per the order of the court. The Guardian Court and the High Court refused to grant her request, stating that a guardianship application could not be entertained without giving a notice to the parents of the child under Section 1130 of the 1890 Act because even if the couple were unwed, it could not be presumed that the father did not want to have any interest in the welfare of the minor. She appealed to the Supreme Court.

Arguments raised

The petitioner argued that revealing the name and address of the father would cause harm to the future of the child if the father refused to acknowledge the child’s paternity. The father was already married and had a family of his own. Any revelation of the father fathering a child outside of his family would have grave repercussions in the society for the mother and child, and the father. Thus, requesting the petitioner to reveal the name of the father would be against her right to privacy. Likewise, under Section 7 of the 1890 Act, the welfare of the minor was the paramount consideration for appointing a guardian and the rights of the parents came after. Accordingly, the appointment of the mother would be in the welfare of the minor and the same should be decreed.

On the other hand, the respondent, the State, argued that Section 11 of the 1890 Act required a notice to be served on the parents of the minor, and by Section 19, no guardian could be appointed if the father of the minor was alive and not unfit to be the guardian. Hence, the mother cannot become the guardian.

Judgment of the Supreme Court

The Supreme Court observed that under Hindu and Muslim law as well as the Succession Act, 192531, the custody of the illegitimate child lay with the mother. In many foreign countries, mothers had a preferential right to guardianship over their illegitimate child irrespective of whether the father was taking care of the child or not. The court remarked that it was well known that mothers care for their children with all the love. Therefore, favouring maternity over paternity would not be an issue in the case of unwed mothers.

Therefore, in contemporary times when women choose to raise their child alone and give them all the care required, it would not be viable to impose a father on the well-settled and loving relationship of the petitioner and her child. Since the father was unconcerned with the minor’s well-being, there was no question of the minor’s welfare lying with the father. Issuance of notice to the father would not be in the welfare of the minor and only cause needless controversy. Therefore, the term “parents” in Section 11 of the 1890 Act was to be interpreted as referring to that parent who solely looked after the welfare and took care of the minor.

Since the unwed mother was the best person to look after the welfare of the child, she was made the natural guardian. Further, the Supreme Court also gave directions that in cases where single mothers register the birth of the child, only an affidavit regarding the same should be requested and the mother must not be compelled to reveal the name of the father.

Analysing the judgment

Thus, after ABC v. State (NCT of Delhi)32, the rights of an unwed mother to become the natural guardian of their illegitimate child became pre-eminent in cases where the father had been as good as non-existent from the child’s life. The judgment was under the 1890 Act, and hence became applicable to all the communities.

However, if one takes a closer look at the judgment, it can be discerned that the Supreme Court had not taken the decision based on the substantive question of whether the unwed mother could have the custody or guardianship rights, but on the question that whether notice had to be sent to the father for determination of natural guardianship of an illegitimate child. The court also refused to go into the question of the child’s custody and expressly observed that the case would not be applicable to the suit of those spouses who approach the court for declaration of custody of the child behind the back of the other spouse.33

Moreover, it seems that the Supreme Court’s decision on giving a chance to the mother to represent her guardianship case once again before the lower judiciary was motivated more by the fact that the father had been willingly unconcerned with the minor and had consciously been absent from the minor’s life rather than on the consideration that the mother was employed, earning a decent living for herself and her child and was doing everything required for the minor’s welfare. Focusing on the latter argument for giving its final decision would have presented a strengthened opinion of the court in favour of the changing position of women in society and departed from the prevailing traditional thought process that women are only caregivers and fathers the protectors. It would have displayed the evolving feminist ideas of the contemporary times and supported women who were caregivers and breadwinners. Nevertheless, one idea was strongly put forward by the judgment that uninvolved fathers had no natural right to guardianship.

It is important to note that the guardianship laws in India are based on a quagmire of different laws for different religions. Therefore, it cannot be said that every decision by the courts would be necessarily followed in the diversity of cases having different facts and circumstances along with consideration of the different faiths of the parties and the different laws applicable to them. Only one consideration, that is, the welfare of the minor and the interest of the minor remains consistent throughout the array of unique cases. Therefore, the welfare of the minor is predominant in questions surrounding the rights of parents to guardianship.

Shifting Indian culture and the need for equal guardianship laws

Traditionally, women had been identified as a responsibility of their father or husbands. Their life was restricted to the confines of the four walls of the house and men were considered as their protectors and earners of the house. Likewise, men were at the forefront while forming laws and deciding disputes. The customary laws of the various communities living within India have been influenced by the concept of patriarchy. Family laws are no exception to this process. Since the customary laws favoured men’s position as the caretakers of the household, the same conceptions were codified in the statute enacted soon after the arrival of the British in India. Thus, many of the social problems which women face today, stem from the single idea of patriarchy and male dominance.

After independence, though in light of the rights enshrined in the Constitution of India, a greater part of laws was made equitable, much could not be done about family laws as its tenets were dear to the people. This led to the codifying of some inequitable laws. One of them is the right to natural guardianship of the minor which is under scrutiny in this paper.

Until recently, a gendered division was prevalent in Indian society. Fathers were associated with affairs outside the home and mothers with those on the inside. This normalised the concept of patriarchal families and downgraded the position of women to a secondary level within the society. This particularly proved disadvantageous for the women who were beyond the perceived framework of the “complete happy family of four” – the father, the mother and their two children – and created many hardships for separated mothers, divorced mothers, and single mothers.

The experience of single mothers is a testimony of how they have been discriminated against over the years as people across India considered father as the designated welfare provider of the child. While enrolling her little daughter in a school with many splendid hopes for her future, a mother was stopped by the school authorities and asked to get a no-objection certificate from the child’s father as it must be the father who should sign the paper.34 Another mother was appalled when the passport officials refused to process her minor child’s passport application because it did not have her ex-husband’s signature.35 Another single mother observed that even when the law favoured the women it was the narrow-minded officers working in the government offices who brought up uncomfortable questions about paternity of the child.36

Shalu Nigam v. Regional Passport Officer37 was one such case before the Delhi High Court where an aggrieved mother had appealed to the court to direct the passport office to issue her daughter’s passport without mentioning the name of the father (the ex-husband) on the passport, which was “insisted” as necessary detail for the passport by the authorities. The father was as good as non-existent from the minor’s life. By mentioning the father’s name on the passport, the identity of the child would be changed as through the years nowhere was the father’s name mentioned in any of the minor’s documents. The High Court observed that there was no legal requirement making it mandatory to mention the father’s name in the passport and the passport authorities could not insist upon the same. The Supreme Court in ABC v. State (NCT of Delhi)38 had recognised single mothers as parents and natural guardians. Hence, the passport office could not insist on mentioning the father’s name in the passport and an affidavit sworn by the mother stating that the parents had divorced or that she was an unwed mother should be enough to consider the issuance of the passport without making it mandatory to mention the father’s name.

Similarly, in A. Aniswar v. Union of India39 the ex parte divorce of the mother had become final after the husband failed to show up. The minor child of the couple was issued with the “person of Indian origin” card, however later when the mother submitted the minor’s registration application as overseas citizens of India card holder, his application was rejected on the grounds that the mother must produce papers showing that she was granted custody of the minor after the divorce. She filed a petition before the Court against the rejection. The Madras High Court observed that in both Githa Hariharan40 and ABC v. State (NCT of Delhi)41, the mother had been recognised as the natural guardian of a minor and since the divorce had been decreed and the minor had always stayed with the mother since their return to India, it was established that the custody and the natural guardianship was with the mother. Thus, the petitioner, as the natural guardian, was competent to present the minor’s application before the authorities and her application must be considered by the authorities as expeditiously as possible.

Accordingly, it can be concluded that the hardships faced by divorced mothers, unwed mothers or single mothers have not decreased over the years despite the weight of the laws and the judiciary behind them. The vivid image of the “complete happy family of four” has become so widely imprinted in the minds of the people, that when a single mother comes forward, the conventional notions of a complete happy family which are deeply rooted in the minds of people make the society frown upon the status of single mothers. Many times, single mothers are even looked down upon for violating the ideal Indian family perceptions.

The conventional concept of a complete happy family of four is no longer an unassailable standard for the Indian family. The rising tide of single parents and especially single mothers has overturned this situation as women increasingly choose to raise their minor alone. With the evolution of technology and the availability of new methods of pregnancy like artificial insemination and in vitro fertilisation, today single mothers include women who have adopted a child, married women who are solely looking after the child, divorced women, separated women, deserted women, unwed mothers, and rape victims. The dissemination of live-in relationships has also contributed to the emergence of single motherhood.

It is only rational that with the rise of single mothers, the laws should shift in favour of mothers and allow them equal and joint rights to natural guardianship. Article 14 of the Constitution of India gives the right to equality before the law. Like must be treated alike and unlike must not be treated alike, and among equals law must be administered equally. Giving precedence to father over the mother under the Hindu and Muslim laws in matters of natural guardianship cannot pass the test of intelligible differentia as theorised under Article 14 as the primacy of father over the mother as the natural guardian cannot have a rational relation with the object of “welfare of the child” sought to be achieved in every single case. Likewise, Article 15 explicitly states that there can be no discrimination based on sex. Hence, no law enacted by the legislature shall discriminate between the people on grounds of gender.

Therefore, according to the Constitution, the laws should be equal for all. Both the father and the mother should be given equal rights to natural guardianship under all the laws and joint guardianship should be preferred in cases of married couples. For persuasive purposes and for identifying the practical application of the before mentioned suggestion of giving equal and joint guardianship to both parents, some guardianship laws in foreign jurisdictions have been analysed below.

Guardianship in foreign nations

In the United Kingdom (UK), according to the Children Act, 1989, parental responsibility means rights, powers, responsibilities, duties, and authority which a parent has according to the law in relation to a child and the child’s property. According to Section 2(1) of the Act, parental responsibility of the child of a married couple lies with both the parents. In case the child is born through artificial birth methods like artificial insemination, in vitro fertilisation, or others, then the parental responsibility lies with the mother and the other parent. Mother has the parental responsibility for a child born without marriage and the father can acquire parental responsibility for the child in accordance with the provisions of the law. Section 2(4) of the said Act expressly abolishes the rule that the father is the only natural guardian of the legitimate child and Section 2(5) paves the way for more than one person to have parental responsibility simultaneously. Thus, mothers are generally favoured as equal and joint natural guardians of their child in the UK.

Similarly, in New Zealand, the child’s mother automatically becomes the natural guardian of the child at birth.42 The fathers become the natural guardians of the child if they were married to, or were in civil union with, the mother. The father can also file an application before the Family Court to be appointed as the natural guardian and their application will be considered only if it is for the welfare of the child.43

In the United States of America, most of the States favour joint natural guardianship of parents.44 In France, by 1985, the right of the father as the sole natural guardian of the minor was abolished and both the mother and the father were given joint guardianship over their child, whether born of marriage or without marriage.45

Position in India and way forward

In foreign countries, both mother and father have equal and joint natural guardianship rights and the mother’s position is preferential in such matters. If the same is replicated in India by giving equal and joint natural guardianship rights to all the parents, and by giving single mothers natural guardianship (the fathers can become natural guardians by registration or by applying to the court), then the existing discriminatory problems which the mothers in the country face can be mitigated to a great extent.

The Law Commission of India Report released in the year 2015 specifically highlights the need to have equal natural guardianship laws for parents.46 It says that Section 6(a) of the 1956 Act should be amended to remove the superiority of one parent over the other in light of Article 14 of the Constitution and that both the parents should be given guardianship rights simultaneously while keeping in mind the welfare of the minor.47 Similarly, Section 7 of the 1956 Act should be amended to make both the parents the natural guardians of their adopted son and/or adopted daughter.48

The Ministry of Women and Child Development also emphasised the need to give natural guardianship rights to all mothers before the father, irrespective of the personal laws which govern them.49 Even the National Commission for Women (NCW) a couple of years ago recommended that the laws on natural guardianship should favour mothers, whether married, divorce, separated or single.50

Thus, the Law Commission’s Report and the ministry’s recommendations, both recognise that it is high time that mothers get equal and joint guardianship rights over their child along with the father. Now, it falls upon the legislature to amend all the existing personal laws in the country to highlight the same.


The realisation that the country’s guardianship laws are not equitable hits hard when one reads news about how a mother is unable to get her child admitted to a school without the father’s sign or no-objection certificate.51

With changing culture and social conditions, it is essential that a country progresses towards greater equality and freedom for its citizens. Though the Supreme Court’s judgment, in Githa Hariharan v. RBI52 only gave concessional rights to mothers as natural guardians in cases where the father was particularly uninvolved and uninterested and, in ABC v. State (NCT of Delhi) gave procedural relief to an unwed mother alongside the recognition of her guardianship rights, it cannot be denied that the Supreme Court’s path-breaking judgments signify the forward-thinking judiciary’s revolutionary shift towards reform in the natural guardianship laws of the country.

It is high time that women are given an equal share of recognition in society. With changing times, the position of women has undergone sweeping changes in the country where women fight the patriarchal model of society and strive for their rights. However, the family laws of the respective communities still hold back women from progressing forward in some aspects. Natural guardianship is one of them.

By amending Section 19(b) of the 1890 Act in the year 2010, the Government recognised the equal status of mothers in guardianship. It is now prayed that the legislature rises to the task of amending Sections 6 and 7 of the 1956 Act, and all other customary laws on the matter, and gives equal and joint natural guardianship rights to both mothers and fathers. While married, both the parents, as natural guardians, shall continue to exercise their guardianship duties simultaneously and in the welfare of the minor.

After divorce or separation between the couple, or in case of desertion or single motherhood, the mothers should be given the preferential right to guardianship by virtue of their maternity and the estranged fathers should be given a choice of getting themselves registered as a guardian, or of applying to the court for being declared as a guardian, if they are willing to share equal responsibilities in care and upbringing of the minor and are genuinely interested in the welfare of the minor. If at any time it is felt that the welfare of the minor child would not lie with the single mother and if the willing father presents itself before the court, then the natural guardianship, for the welfare of the minor, should be given to the father. Otherwise, other willing relatives of the minor can be given the guardianship rights by the courts. The welfare of the minor should remain the paramount consideration in all cases.

Therefore, the ball is now in the court of the legislature. It has the power to change the prevalent discriminatory state of affairs and bring equality and fairness to the laws on natural guardianship. It is high time that mothers get fair recognition as natural guardians of their children.

† 2nd year student of BA LLB (Hons.) at Damodaran Sanjivayya National Law University, Visakhapatnam.

1. (1999) 2 SCC 228.

2. (2015) 10 SCC 1.

3. Hindu Minority and Guardianship Act, 1956.

4. Hindu Minority and Guardianship Act, 1956, Ss. 4(a), 4(b) and 6(a).

5. Hindu Minority and Guardianship Act, 1956, S. 7.

6. Hindu Minority and Guardianship Act, 1956, S. 6(b).

7. Hindu Minority and Guardianship Act, 1956, S. 8.

8. Syed Khalid Rashid, Muslim Law (6th Edn., Eastern Book Company).

9. Mulla: Principles of Mahomedan Law (20th Edn.), S. 358.

10. Guardians and Wards Act, 1890.

11. Guardians and Wards Act, 1890, S. 19(b).

12. Personal Laws (Amendment) Bill, 2010.

13. Constitution of India, Art. 14.

14. Constitution of India, Art. 15.

15. (1999) 2 SCC 228.

16. Narain Singh v. Sapurna Kuer, 1967 SCC OnLine Pat 64.

17. (1999) 2 SCC 228.

18. (1999) 2 SCC 228.

19. (1970) 2 SCC 717.

20. (1970) 2 SCC 717.

21. (1999) 2 SCC 228.

22. (1999) 2 SCC 228.

23. (1999) 2 SCC 228.

24. (1999) 2 SCC 228.

25. 2003 SCC OnLine Bom 1177.

26. (1999) 2 SCC 228.

27. (1999) 2 SCC 228.

28. (2015) 10 SCC 1.

29. Guardians and Wards Act of 1890, S. 7.

30. Guardians and Wards Act of 1890, S. 11.

31. Succession Act, 1925.

32. (2015) 10 SCC 1.

33. (2015) 10 SCC 1, 24.

34. CRIS, “Single Mothers Fight a Lonely Battle”, Deccan Chronicle (14-4-2018), <> (accessed on 18-11-2021).

35. Arpita Raj, “Single Women Seeking Kids’ Passports Run into Red Tape”, The Times of India (10-12-2016), <> (accessed on 19-11-2021).

36. Arpita Raj, “Single Women Seeking Kids’ Passports Run into Red Tape”, The Times of India (10-12-2016), <> (accessed on 19-11-2021).

37. 2016 SCC OnLine Del 3023.

38. (2015) 10 SCC 1.

39. 2016 SCC OnLine Mad 12549.

40. (1999) 2 SCC 228.

41. (2015) 10 SCC 1.

42. Care of Children: Who A Guardian Can Be (Ministry of Justice New Zealand), <> (accessed on 20-11-2021).

43. Care of Children: Who A Guardian Can Be (Ministry of Justice New Zealand), <> (accessed on 20-11-2021).

44. ABC v. State (NCT of Delhi), (2015) 10 SCC 1, 12.

45. Frédérique Ferrand, National Report: France (University of Lyon), <> (accessed on 20-11-2021).

46. Law Commission of India, Report No. 257 on Reforms in Guardianship and Custody Laws in India (August 2015).

47. Law Commission of India, Report No. 257 on Reforms in Guardianship and Custody Laws in India (August 2015), para 6.3.

48. Law Commission of India, Report No. 257 on Reforms in Guardianship and Custody Laws in India (August 2015).

49. Shalini Nair, “Mother Should be Natural Guardian, Not Father, Says WCD Ministry”, The Indian Express (27-7-2017), <> (accessed on 20-11-2021).

50. Amrita Madhukalya, “Review Child Guardianship Laws: NCW to Government”, Hindustan Times (New Delhi, 12-10-2019), <> (accessed on 20-11-2021).

51. CRIS, “Single Mothers Fight a Lonely Battle”, Deccan Chronicle (14-4-2018), <> (accessed on 20-11-2021).

52. (1999) 2 SCC 228.

Delhi High Court
Case BriefsHigh Courts


Delhi High Court: In a case where a detenue filed for quashing of his detention order on the grounds of violation of constitutional mandate as laid down in Article 22 (5), a Division Bench of Siddharth Mridul and Rajnish Bhatnagar JJ., set aside the detention order as detenue is illiterate and the detention order must have been explained to him either in Hindi or any vernacular language, if he speaks or understands. Thus, the fact that he signed in English is not sufficient to form an opinion that he has full understanding of the language.

The present writ petition was filed under Article 226 read with Section 482 of Criminal Procedure Code (CrPC) seeking quashing of the impugned detention order passed by the Joint Secretary, Govt. of India u/s 3 (1) of Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 (PITNDPS) and anorder passed by the Deputy Secretary, Govt. of India u/s 9(f) of the PITNDPS confirming the detention order for a period of one year.

Counsel for detenue submitted that there was no need to detain the detenue under PITNDPS as he is already in custody in a case under the stringent provisions of NDPS Act and there is no likelihood of his release from custody in the near future.

He further submitted that the detenue being an illiterate person, the order of detention was not properly communicated to detenue as the same is in English language.

The State opposed the petition contending that the detenuestated that “CD and CDR would be seen by his advocate” which goes to show that he understood everything, having the assistance of his advocate. It was further submitted that all the documents were signed by the detenue in “English” which clearly shows that the detenue understood the contents of the documents supplied and made the representation signed by his advocate.

Placing reliance on Chaju Ram v. State of Jammu & Kashmir, (1970) 1 SCC 536, Nainmal Partap Mal Shah v. Union of India, (1980) 4 SCC 427, Haribandhu Dass v. District Magistrate, Cuttack, (1969) 1 SCR 227, the Court noted that simply because the detenue has put his signatures in English does not by any stretch of imagination shows that he understands English and as a consequence understood the grounds of detention.

The Court further noted that the manner in which the signatures of the detenue were obtained on the documents, leaves no shadow of doubt that the contents of any of the documents/detention order were explained to the detenue in vernacular or the language that the detenue understands, i.e., Hindi. The detaining authority was under an obligation to communicate to the detenue the grounds of detention effectively and fully in a language in the present case “Hindi”, which the detenue understood even if that entailstranslation of the grounds to the language known to the detenue.

Thus, the Court held that where a detenue is illiterate, the mandate of Article 22(5) would be served only if the grounds of detention are explained to the detenue in a language that he understands, so as to enable him to avail the fundamental right of making an effective representation.

[Sharafat Sheikh v. UOI, 2022 SCC OnLine Del 2725, decided on 02-09-2022]

Advocates who appeared in this case:

Mr. Tanmaya Mehta, Ms. Shreya Gupta, Mr. Anurag Sahay and Ms. Mallika Bhatia, Advocates, for the Petitioner;

Mr. Chetan Sharma, ASG with Mr. Ajay Digpaul, CGSC with Mr. Soumava Karmakar, Mr. Kamal Digpaul with Mr. Rakesh Duhan, Inspector, Narcotics Cell, Crime Branch, Advocates, for the defendant.

*Arunima Bose, Editorial Assistant has put this story together.

SCC Part
Cases ReportedSupreme Court Cases


Constitution of India — Arts. 300-A and 31 — Expropriation of private property by State — Compensation — Entitlement: State on ground of delay and laches cannot evade its legal responsibility towards those from whom private property has been expropriated. Right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Art. 300-A. It is cardinal principle of rule of law, that nobody can be deprived of liberty or property without due process, or authorisation of law. When it comes to subject of private property, high threshold of legality must be met, to dispossess an individual of their property, and even more so when done by State. [Sukh Dutt Ratra v. State of H.P., (2022) 7 SCC 508]

Criminal Law — Criminal Trial — Sentence — Principles for sentencing — Victimology — Just punishment — Recognises protection of victim’s right — Right of victim or their near and dear ones to seek enhancement of sentence: Victim’s right (including that of victim’s relations, heir or guardian), is a facet of human rights, a substantive and enforceable right and deserves equal regard. Criminal cannot be treated leniently solely on the ground of discretion vested in court. Victim’s relations, heir or guardian should be treated as victim. [Jaswinder Singh v. Navjot Singh Sidhu, (2022) 7 SCC 628]

Debt, Financial and Monetary Laws — Debt, Debt Recovery and Relief — Sale of debtor’s property — Maintainability of writ petition to set aside auction-sale: Hearing of writ petition challenging the auction-sale is not permissible, when proceedings invoked by petitioner in fora below were themselves found non-maintainable. [Deenadayal Nagari Sahakari Bank Ltd. v. Munjaji, (2022) 7 SCC 594]

Evidence Act, 1872 — Ss. 65-A and 65-B — Admissibility of electronic records — Non-compliance with requirement of certification of electronic evidence: Certificate under S. 65-B(4), Evidence Act is mandatory for production of electronic evidence, oral evidence in place of such certificate cannot suffice. [Ravinder Singh v. State of Punjab, (2022) 7 SCC 581]

Insolvency and Bankruptcy Code, 2016 — Ss. 5(13) and 53 — Claims of workmen/employees towards their wages/salaries during CIRP — Payability of, as CIRP costs: While considering the claims of the workmen/employees concerned towards the wages/salaries payable during CIRP, first of all it has to be established and proved that during CIRP, the corporate debtor was a going concern and that the workmen/employees concerned actually worked while the corporate debtor was a going concern during CIRP. Further, as per S. 5(13) only with respect to those workmen/employees who actually worked during CIRP when the corporate debtor was a going concern, their wages/salaries are to be included in CIRP costs and they shall have the first priority over all other dues as per S. 53(1)(a). Also, any other dues towards wages and salaries of the employees/workmen of the corporate debtor shall have to be governed by Ss. 53(1)(b) and 53(1)(c). [Sunil Kumar Jain v. Sundaresh Bhatt, (2022) 7 SCC 540]

Land Acquisition Act, 1894 — S. 23 — Compensation — Determination — Sale exemplars which may be considered: Sale instances of adjacent village either subsequent to land acquired or with respect to small areas of land — Whether may be considered, explained. [Ramrao Shankar Tapase v. Maharashtra Industrial Development Corpn., (2022) 7 SCC 563]

Negotiable Instruments Act, 1881 — S. 138 r/w S. 142 — Dishonour of cheque where a company is payee of that cheque — Filing of complaint in such a case — Maintainability — Prerequisites: When a company is payee of cheque based on which a complaint is filed under S. 138 of the NI Act, the complainant necessarily should be the company represented by an authorised employee. For maintainability of complaint in such cases, prima facie indication in complaint and sworn statement (either orally or by an affidavit) before court to the effect that complainant company is represented by an authorised person who has knowledge about transaction in question, would be sufficient. Such averment and prima facie material is enough to take cognizance and issue process. Issue as to whether aforesaid authorisation and knowledge about transaction is proper, is a matter for trial. [TRL Krosaki Refractories Ltd. v. SMS Asia (P) Ltd., (2022) 7 SCC 612]

Penal Code, 1860 — S. 300 [S. 300 Thirdly] and Ss. 341, 447, 504 and 506 — Case whether one of murder, when the assault is not made with any weapon, but only by legs and hands — Determination of: In this case, material clearly established that after deceased fell down with the help of co-accused, accused K kicked and assaulted deceased on his neck with his legs and hands. Ocular version supported by medical evidence, which indicated that the deceased suffered abraded contusion of reddish blue colour on the neck area and abraded contusion reddish in colour on the left side of the chest. Further, internal dissection revealed profuse bleeding over the muscles of the neck surrounding the arteries that were ruptured. Further, certain left side ribs also fractured. Ventral part of the sternum also broken into two pieces and the spinal cord at certain level also contused, edematous and elongated. Cause of death opined as haemorrhagic shock as a result of multiple injuries, hence, conviction of accused K under Ss. 302, 341, 447, 504 and 506, held, justified. [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521]

Rent Control and Eviction — Mesne Profits/Compensation/Occupation charges/Damages for wrongful use/trespass: Principles clarified regarding proper basis and reasonable manner of determination of mesne profits of residential property on termination of leave and licence agreement pending first appeal. [Anar Devi v. Vasudev Mangal, (2022) 7 SCC 504]

Service Law — Appointment — Invalid appointment/Wrong appointment/Illegal appointment: Appointment dehors statutory rules, reiterated, is void ab initio. [State of Odisha v. Sulekh Chandra Pradhan, (2022) 7 SCC 482]

Service Law — Judiciary — Promotion: In this case, for promotion to 25% of posts of Higher Judicial Service strictly on basis of merit through Limited Departmental Competitive Examination (LDCE) from Civil Judges (Senior Division), eligibility criteria applicable, only for Delhi Higher Judicial Service (DHJS), was modified, both in terms of: (A) Civil Judges who would be eligible, and (B) Period of qualifying service re different categories of Civil Judges, due to non-availability of candidates as per the existing prescribed criteria, and, parity of work performed by Civil Judge (Junior Division) and Civil Judge (Senior Division) in Delhi. Civil Judges (Junior Division), held, also to be eligible for promotion to DHJS via this channel if they satisfied the norms as specified herein. [All India Judges Assn. v. Union of India, (2022) 7 SCC 494]

OP. ED.SCC Journal Section Archives


In January 2020, the State of Kerala instituted a suit in the Supreme Court under Article 1311, challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015.2 According to the State of Kerala, these are class legislations which harp on the religious identity and country of origin of an individual; the State of Kerala has prayed that all these legislations be declared null and void, as they violate the principle of secularism, a basic feature of our Constitution, as also Articles 14, 21 and 25. The State of Chhattisgarh has challenged the National Investigation Agency Act, 2008 before the Supreme Court under Article 131, alleging that it usurps the power of investigation vested with the police under Schedule VII List II Entry 2 to the Constitution of India, thus violating the federal structure.3

Recently, the Kerala High Court dismissed4 a writ petition challenging the executive decision of the Union of India and Airports Authority of India to hand over Trivandrum Airport to private entities by holding that the appropriate remedy is to institute a suit under Article 131. In appeal, the Supreme Court remanded5 the matter to the High Court by a non-speaking order, leaving the issue on applicability of Article 131 open.

In all these suits, the first question would be of their maintainability under Article 131. It is debatable whether the grounds on which these suits have been instituted give rise to a question “on which the existence or extent of a legal right depends” (a requirement under Article 131), and what is the nature of the precise legal right in question.

Unfortunately, the contrary stands taken by the Supreme Court in State of M.P. v. Union of India6 and State of Jharkhand v. State of Bihar7 do not leave this issue free from doubt. In State of M.P.6, the Supreme Court observed: (SCC p. 276, para 20)

20. … when the Central laws can be challenged in the State High Courts as well and also before this Court under Article 32, normally, no recourse can be permitted to challenge the validity of a Central law under the exclusive original jurisdiction of this Court provided under Article 131.

In contrast, the Supreme Court in State of Jharkhand7 expressed its inability to agree with these observations in State of M.P.6, and referred the matter to a larger Bench.

In this backdrop, this article seeks to explore the contours of Article 131 of the Constitution of India, to determine the appropriate forum for adjudication of such disputes. To do so, the different capacities in which a State may invoke the jurisdiction under Article 131 shall be first discussed briefly, and thereafter, the scope and extent of Article 131 shall be traversed.


A State institutes a suit in the following capacities:

1. For or on Behalf of its Inhabitants — as “Parens Patriae” or in representative suits

2. For Vindicating its own Rights

For or on Behalf of its Inhabitants

Parens patriae

A welfare State acts as parens patriae of its inhabitants and has long been considered as a proper party to represent and defend its citizens’ rights, when their health, comfort, prosperity or property are endangered.8 In a suit under Article 131 against the Union, can a State act as parens patriae of its inhabitants?

A similar question was examined by the United States Supreme Court in Massachusetts v. Mellon9. The Commonwealth of Massachusetts challenged the constitutionality of the “Maternity Act” enacted by the US Congress, alleging inter alia, invasion of the rights of its citizens. The United States Supreme Court observed as under: (SCC OnLine US SC para 17)

17. … It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens … it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.

The Indian context differs from the United States’ — ours is a quasi-federal structure and single citizenship10; in this backdrop, these observations apply with even greater force to India. Individual States cannot rely on the doctrine of parens patriae to institute suits against the Union of India under Article 131, though they may well have this right when it is another State that they have a grievance against.

Representative suits

Citizens can challenge a Parliamentary legislation or executive action by filing individual petitions before the High Court. To prevent multiplicity of litigation, a State may take up their cause and institute a suit before the Supreme Court. In this circumstance, when the State consolidates their claims in a single representative suit, it does not contend that a legal right of the State is at risk, but is only representing the grievances of its inhabitants. In such a scenario, is recourse to the Supreme Court’s original jurisdiction permissible?

The nature of the parties that can invoke the Supreme Court’s jurisdiction under Article 131 would preclude a State from instituting such suits. In State of Bihar v. Union of India11, the State of Bihar prayed for a money decree citing short delivery of materials under a construction contract. The Court was required to determine if the suit was maintainable under Article 131 when not only the Union, but companies it owned were also arrayed as the defendants. The Supreme Court observed that apart from the framers of the Constitution not having contemplated a dispute involving a private party as amenable to the original exclusive jurisdiction of the Supreme Court, the express words of Article 131 clauses (a), (b) and (c) also exclude the idea of a private citizen, a firm or a corporation figuring as a disputant, either alone, along with, or in the alternative with a State or the Union of India.

Untwalia, J. in his opinion in State of Karnataka v. Union of India12, outlines the adverse consequences in allowing such suits to be instituted under Article 131: (SCC p. 715, para 216)

216. … If a restricted meaning were not to be given to the scope of the suit which can be filed under Article 131, very anomalous, and sometimes absurd, results may follow and it will be difficult to put a dividing line and a stop to the very wide scope of the suit resulting from such an interpretation. … The argument that the State is interested in protecting its people and officers when their legal right has been illegally invaded by the Central Government and, therefore, it has a locus to invoke Article 131, in our opinion, is too obviously wrong to be accepted.

American jurisprudence similarly holds that a State may invoke the US Supreme Court’s original jurisdiction only where the offending statute affects the property or the powers of the complaining State in its sovereign or corporate capacity,13 but not for the benefit of individuals.14

It follows that for a legal right in dispute to be amenable to the exercise of jurisdiction under Article 131, the legal right has to be of the State, and not of private individual(s).

For Vindicating its own Rights

A State can institute a suit on its own accord, on grounds similar to those adopted by the State of Kerala and the State of Chhattisgarh while instituting their suits. When considering this independent challenge, two remedies are available to a State — it can either institute a suit under Article 131 or approach the High Court under Article 226 of the Constitution of India. The right recourse would depend on the sphere in which Article 131 operates.


Article 131: Its historical antecedents

The Joint Committee on Indian Constitutional Reform in its 1933-1934 Session first contemplated about the Federal Court (Supreme Court’s predecessor) and its original jurisdiction. The Committee envisaged this jurisdiction to be an exclusive one, since in its opinion it would be altogether inappropriate if proceedings could be taken by one Unit of the Federation against another in the Courts of either of them. It further opined that the jurisdiction ought to include not only the interpretation of the Constitution Act, but also the interpretation of Federal laws enacted by the Federal Legislature.15 The Sapru Committee concurred with the view of the Joint Committee.16

Consequently, Section 204 of the Government of India Act, 1935,17 enabled the Federal Court to determine disputes between the constituent units of the Federation and also specified the nature of the disputes that the Court could be called upon to examine and decide.

As noticed in State of Rajasthan v. Union of India,18 the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kinds specified between the Federation and the Provinces should be adjudicated upon only by the highest Court of the land, which would be beyond the influence of any one constituent unit. The original jurisdiction of the Federal Court was not to provide a special forum to the constituents of the Federation to resolve ordinary disputes capable of being decided by other courts, but was meant for the adjudication of a special category of disputes arising between them. The jurisdiction conferred was not on account of the parties alone, but due to the unique combination of the parties and the subject-matter involved.

This historical background of Article 131 was noticed by the Supreme Court in State of Bihar11. Article 131 had its precursor in Section 204 of the Government of India Act, 1935, and is a remnant of federalism found in the Government of India Act, 1935.12 As noted by Chandrachud, J.,19 Article 131 proceedings are an expedited dispute resolution process not subject to an appeal as the two sovereigns should not be in protracted litigation with each other.

Nature of disputes under Article 131

Limitations while exercising jurisdiction under Article 131

Article 131 seems to have borrowed from Section 204 of the Government of India Act, 1935, two limitations on the exercise of jurisdiction:

1. Limitation as to parties mentioned in clauses (a), (b) and (c) of Article 131.

2. Limitation as to the subject-matter.20

The first limitation is fairly clear through the decision in State of Bihar,11 and has been discussed previously in this article.

With regard to the limitation as to the subject-matter, Article 131 does not specifically limit the kind of right that can be the subject-matter of dispute. In fact, the Federal Court in United Provinces v. Governor General in Council,21 interpreted the similarly phrased Section 204 of the Government of India Act, 1935 to encapsulate all disputes involving the existence of any legal right recognised by law and capable of being enforced. In this judgment, the Federal Court interpreted “legal right” broadly, and without regard to the history of Section 204. The Court relied on authorities that considered the meaning of “legal right” from the perspective of private parties in a dispute,22 without regard to the specific context in which the term is used. The interpretation did not take into account the special nature of parties i.e. the Union and the State(s), which invoke the jurisdiction of the Court. As would follow from the immediately following discussion in the article, such an interpretation of the term “legal right” does not accord with the role that Article 131 plays in the Indian Constitution.

Role of Article 131 and connotation of “Legal Rights”

Under the Constitution of India, Article 131 plays a seminal role in ensuring that the Union and the States act within the spheres of their authority and do not trespass upon each other’s constitutional functions or powers.12 As elaborated earlier, Article 131 was not meant for the adjudication of ordinary disputes, but for a special category of disputes having a bearing on the legal rights of the constituent units of the Federation.

While dealing with Article 131 and disputes over which it has jurisdiction, the Supreme Court specifically noted in State of Bihar11: (SCC p. 73, para 10)

10. Although Article 131 does not define the scope of the disputes which this Court may be called upon to determine in the same way as Section 204 of the Government of India Act, and we do not find it necessary to do so this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up.

Applying the same principle, the Madras High Court23 repelled the argument against maintainability of the State of Tamil Nadu’s challenge to the constitutional validity of Sections 60(4), (5), (6) & (7) of the Prevention of Terrorism (Amendment) Act, 2003 in a petition under Article 226. The ground of challenge was that the impugned provisions violated the separation of powers between the executive and judicial branch of the Government. The High Court rejected the suggestion that a suit under Article 131 was the more appropriate remedy by observing: (State of T.N. case23, SCC OnLine Mad para 12)

12. (b) … it is not each and every kind of dispute between the above disputants that the Supreme Court tries exclusively on its original side. The resolution of dispute is confined to only such questions whether on law or on fact on which the existence or extent of a legal right depends. Materially, the said disputes touch upon either Centre-State relations or inter-State relations.

(emphasis supplied)

The consistent position of the Supreme Court is that the right agitated in a suit instituted under Article 131 should have some bearing on the constitutional relationship that exists between the parties to the dispute, that is the State and the Union. This articulation is central to the interpretation of the phrase “legal right” occurring in Article 131.

In State of Karnataka,12 the State challenged the decision of the Union of India to set up a Commission to inquire into allegations of corruption against the Chief Minister of Karnataka. Bhagwati, J.’s concurring opinion explained the meaning of the term “legal right” in the context of Article 131 as under: (SCC p. 710, para 205)

205. It would also be convenient at this stage to consider what is the meaning of the expression “legal right” as used in Article 131. It is obvious that the word “right” is used here in a generic sense and not according to its strict meaning. “Right” in its narrow sense constitutes the correlative of duty, but in its generic sense it includes not only right stricto sensu, but “any advantage or benefit conferred upon a person by a rule of law”. … What has, therefore, to be seen in order to determine the applicability of Article 131 is whether there is any relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute. If there is, the suit would be maintainable, but not otherwise.

(emphasis supplied)

In Union of India v. State of Rajasthan,24 the Supreme Court decided whether a suit for recovery of compensation filed by the State of Rajasthan for the loss caused by Railways is maintainable in an ordinary civil court, or could be filed under Article 131. Delving into the nature of legal rights under Article 131, the Court observed: (SCC p. 244, para 12)

12. … we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities, etc. flowing therefrom. Any dispute which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government, a consumer of railway services, etc. like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution. It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court.

(emphasis supplied)

Adopting this principle, the Andhra Pradesh High Court in R. Krishnaiah v. Union of India,25 observed that the State cannot invoke this jurisdiction except when the dispute arises between the Governments in their sovereign capacity.

This makes it clear that the scope of “legal right” under Article 131 is restricted to the rights arising out of the relationship between the State and the Centre i.e. rights having a direct bearing on the federal structure of Indian polity, and does not encompass any and all legal rights that are enforceable in a court of law. In this background, the suit instituted by the State of Chhattisgarh challenging the National Investigative Agency Act, 2008 for the reason that the Union cannot unilaterally usurp the power of investigating a crime which otherwise falls in the domain of the “police” under Schedule VII List II Entry 2 of the Constitution, would be one that the Supreme Court would have to examine on merits. This suit involves the interplay of legislative and executive powers of the Union vis-à-vis the States, and touches upon the constitutional relationship between them.

In its suit challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015, the State of Kerala has attempted to hold the Union of India accountable to the principle of secularism, the tests of Articles 14, 21 and 25 and its obligations under certain International Conventions and Laws. As mentioned in the plaint, the State of Kerala does not wish to enforce these legislations as part of its obligations under Article 256 of the Constitution.26 But applying Bhagwati, J.’s tests in State of Karnataka12, can one say that the validity of these legislations involves “a right, liberty, power or immunity” qua the State of Kerala? Or would the broader understanding in Union of India v. State of Rajasthan24 apply, where the legal right is to be examined “in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc. flowing therefrom.”27

One can argue that ensuring that the basic structure of our Constitution is implemented in letter and spirit is the responsibility of both the Union and the States, and the States have no less of an obligation to defend the Constitution, and its core values.28 However, this argument is prefaced on the responsibility/role of the States to defend the Constitution. Once this role/responsibility is accepted, can one say that the validity of the legislations itself is a “relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute”. Similarly, even though one can argue that the responsibility of the State to defend the Constitution is its duty, it will be stretching it to say that the ability/responsibility of the State, as constituent of a Federation, to keep the Union alive to its duty of upholding the basic structure and constitutional provisions flows from its constitutional relationship with the Union. One can also argue that the obligation (or lack thereof) of a State to enforce an allegedly invalid legislation under Article 256 is a question on which the extent of the right or immunity of a State depends.29 However, giving such a broad interpretation to the scope of Article 131 would mean that anytime a State disagrees with or differs from a course of action proposed/undertaken by the Union (whether in the legislative sphere or the executive30), recourse under Article 131 would be permissible. This would expose Article 131 to precisely the same dangers as were expressed by Untwalia, J. in State of Karnataka12, and make it very difficult to put a dividing line to prevent recourse to Article 131 by the States at will.

However, recently, the Kerala High Court in Mahesh G.4 observed that the question of existence of the right of the State of Kerala and of the Kerala State Industrial Development Corporation to challenge decisions of the Union of India and Airports Authority of India is itself a question on which the existence or extent of legal right depends. The High Court dismissed4 the writ petition by holding that a suit under Article 131 ought to be instituted for challenging the policy decision taken by the Union of India to invite private bodies in the airport management sector. This judgment fails to consider the true meaning of “legal rights” as enunciated by the Supreme Court in State of Karnataka12 and Union of India v. State of Rajasthan24.

Suits under Article 131 stand in contrast with petitions for vindication of Part III Rights

Besides the distinction relating to the parties and their inter se relationships between ordinary suits and a suit under Article 131, the subject-matter and method of adjudication under Article 131 is also different from proceedings under other courts of law. As pointed out in State of Bihar11: (SCC p. 70, para 2)

2. … The other distinguishing feature is that the Court is not required to adjudicate upon the disputes in exactly the same way as ordinary courts of law are normally called upon to do for upholding the rights of the parties and enforcement of its orders and decisions.

The very nature of the disputes arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits12. In disputes between the Centre and the State in their sovereign capacity, the question is who the power rests with. In such a proceeding, the assertion of its rights/powers by the plaintiff inheres in itself the absence of the right/power of the defendant. This is so because the executive or legislative right/power has to be with either the Union or the State. This was noticed in State of Karnataka12, when it was observed that whereas in a civil suit, the right claimed by the plaintiff may reside neither in him nor in the defendant but in a stranger, in a proceeding under Article 131, one of the parties (plaintiff or the defendant) would possess the constitutional power to act.31 However, given the context in which the opinion was delivered, this can only apply where the dispute is between the State and the Union, and not when the dispute is between two States.

Additionally, in proceedings for vindication of fundamental rights or other legal rights, the right in question must be that of the plaintiff; for the suit or petition to be maintainable, the petitioner(s)/plaintiff(s) must demonstrate that their right exists and how the respondent-defendant threatens to or invades that right. In suits instituted under Article 131, the legal right in question need not be of the plaintiff. As observed in State of Karnataka,1232: (State of Karnataka case12, SCC p. 709, para 204)

204. It may also be noted that, on a proper construction of Article 131, it is not necessary that the plaintiff should have some legal right of its own to enforce, before it can institute a suit under that article. … What Article 131 requires is that the dispute must be one which involves a question “on which the existence or extent of legal right depends”. The article does not say that the legal right must be of the plaintiff. It may be of the plaintiff or of the defendant. … We cannot construe Article 131 as confined to cases where the dispute relates to the existence or extent of the legal right of the plaintiff, for to do so, would be to read words in the article which are not there.

(emphasis in original)

In this light, it would be untenable to conclude that proceedings can be instituted under Article 131 for the vindication of Part III rights. Moreover, as is evident, States of Kerala and Rajasthan, while challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, the Passport (Entry to India) Amendment Rules, 2015 and Foreigners (Amendment) Order, 2015 for violating Part III rights and the basic structure of the Constitution, do not, and cannot, assert that it is not the Union but they who have the competence to enact those legislations (which may or may not violate the basic structure or constitutional provisions). For this reason as well, these suits would not get to attract scrutiny under Article 131.

Alternate construction of Article 131 in relation to rights to which Article 226 extends

Article 226 provides a speedy and effective legal remedy to individuals for protecting their rights. The scope of Article 226 also extends to legal rights that are not fundamental rights. The rights enforceable through Article 226 are of an individual nature.33

While resolving a river water dispute (which are typically of an inter-State nature) in State of Karnataka v. State of A.P.34, the Supreme Court examined the relative scope of Articles 131 and 262 of the Constitution of India. The Court held that where Parliament has enacted a law for the resolution of water disputes, the jurisdiction under Article 131 would be ousted by Article 262 as the two overlap and the former is “subject to the provisions of the Constitution”. This would be the position notwithstanding the fact that the dispute is between the Centre and the State(s) or between two States.

The same principle would apply if one extends the jurisdiction under Article 131 to the entire spectrum of legal rights. As Article 131 and Article 226 would then operate in overlapping spheres, Article 131 would also be subject to Article 226. This would make Article 131 nugatory and take away the jurisdiction of the Supreme Court, when Article 131 explicitly confers upon the Supreme Court exclusive jurisdiction over certain disputes involving the constituents of our Federation. Moreover, it cannot be argued that the jurisdiction exists only by virtue of parties, as the subject-matter and nature of proceedings under Article 131 are unique.


It clearly emerges that the jurisdiction of the Supreme Court under Article 131 extends only to those disputes that satisfy the limitation as to parties and the limitation as to the subject-matter of the dispute. A State may institute a suit under Article 131 challenging legislative or executive actions of the Union only if the subject-matter of the dispute relates to the federal structure of the Constitution i.e. the distribution of legislative or executive power or rights involving its relationship qua the Union or another State; the dispute remains outside the scope of Article 131 when grounds relate to violation of fundamental rights, contractual rights, etc.

Suits instituted under Article 131 by the State of Kerala and the State of Rajasthan challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, cannot be said to involve a question on which the existence of a legal right of the State depends and would not be maintainable. It is indeed the duty and responsibility of all to uphold constitutional values and follow constitutional provisions, and even of individuals to ensure that the Union and the States do not violate them through their legislative or executive actions. However, the historical antecedents of Article 131 make it clear that its role is not to ensure adherence with every constitutional provision/value by the Union, but to ensure that the sovereign units of the Federation do not tamper with the delicate structure of the Indian polity and their inter se relationship. These suits do not fall in this category, and the questions raised therein would be more appropriately examined in a petition under Article 226.

It is also clear that the reasoning of the Kerala High Court in Mahesh G.4 failed to consider the true import of the term “legal right” and also the ratio of State of Bihar11, which forbids any entity other than the State from being a party to a suit under Article 131.35 However, one can say that the suit instituted by the State of Chhattisgarh challenging the National Investigation Agency Act, 2008, as being ultra vires Schedule VII List II Entry 2 would have to be examined on merits under Article 131.

Advocate, Allahabad High Court.

†† LLB (Ist Year), Campus Law Centre, Faculty of Law, University of Delhi. The authors express their gratitude to Shri S.P. Gupta, Senior Advocate and Prof. U.R. Rai for their guidance on the article, and Mr. Chintan Nirala, Advocate for his valuable suggestions. The errors are of the authors only.

*The article has been published with kind permission of SCC Online cited as (2021) 5 SCC J-9

1 131. Original jurisdiction of the Supreme Court.—Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

(a) between the Government of India and one or more States;

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States,

if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

2 OS No. 2 of 2020 — State of Kerala v. Union of India, registered on 24-1-2020. The State of Rajasthan has also preferred a similar challenge, with its suit being registered as OS No. 3 of 2020 — State of Rajasthan v. Union of India on 26-5-2020.

3 OS No. 1 of 2020 — State of Chhattisgarh v. Union of India, registered on 24-1-2020.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

5 K.P. Suresh v. Union of India, 2020 SCC OnLine SC 1210

8 Missouri v. Illinois, 1901 SCC OnLine US SC 25 : 45 L.Ed. 497 : 180 US 208 (1901); People of State of New York v. State of New Jersey, 1921 SCC OnLine US SC 117 : 65 L.Ed. 937 : 256 US 296 (1921).

10 States have exclusive powers only over legislative fields enumerated in Schedule VII List II and the Union is vested with overriding powers in most spheres, unlike the United States where the position is largely the reverse. People in the United States are citizens of the country (United States) as well as the State they reside in, while people in India are citizens only of India, and not of the individual States.

14 Massachusetts v. Missouri, 1939 SCC OnLine US SC 121 : 84 L.Ed. 3 : 308 US 1 (1939).

15 Joint Committee Report on Indian Constitutional Reform Vol. I, Part I, Paras 322 and 324.

16 Para 247. The report was titled “Constitutional Proposals of the Sapru Committee”.

17 204. Original jurisdiction of Federal Court.—(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other court, have an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or any of the Federated States, if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to—

(a) a dispute to which a State is a party, unless the dispute—

(i) concerns the interpretation of this Act or of an Order in Council made thereunder, or the extent of the legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State; or

(ii) arises under an agreement made under Part VI of this Act in relation to the administration in that State of a law of the Federal Legislature, or otherwise concerns some matter with respect to which the Federal Legislature has power to make laws for that State; or

(iii) arises under an agreement made after the establishment of the Federation, with the approval of His Majesty’s Representative for the exercise of the functions of the Crown in its relations with Indian States, between that State and the Federation or a Province, being an agreement which expressly provides that the said jurisdiction shall extend to such a dispute;

(b) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend to such a dispute.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

19 Id, p. 692, para 167.

20 “if and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

22 Dr T.E. Holland, Jurisprudence (Edn. 13) p. 82; John Austin, Lectures on Jurisprudence Volume 1, Lect. 16, p. 398 (1929); Sir John Salmond, Jurisprudence (Edn. 7, 1925) pp. 239-40).

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

23 State of T.N. v. Union of India, 2004 SCC OnLine Mad 65.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

26 256. Obligation of States and the Union.—The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608.

24 Union of India v. State of Rajasthan, (1984) 4 SCC 238.

27 Id, p. 244, para 12.

28 Guest Post: Article 131 and the Power of State Governments to Challenge Laws, accessible at:<> (last accessed 8-6-2020).

29 Since refusal to enforce such legislation may lead to potentially severe consequences, such as the Union invoking Article 356.

30 Under Article 257, States are obliged not to impede the exercise of executive power by the Union.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

12 State of Karnataka v. Union of India, (1977) 4 SCC 608, 691, para 163.

24 Union of India v. State of Rajasthan, (1984) 4 SCC 238.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

31 State of Karnataka v. Union of India, (1977) 4 SCC 608, pp. 691-692, para 165.

32 One cannot interpret this to mean that the legal right can be that of citizens or a third party. Such an interpretation would not be in accordance with the nature of the parties that can be respondent-plaintiffs in proceedings under Article 131.

33 Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., AIR 1962 SC 1044. Exceptions would be cases taken up in public interest or for writs of habeas corpus or quo warranto.

4 Mahesh G. v. Union of India, 2019 SCC OnLine Ker 6811.

11 State of Bihar v. Union of India, (1970) 1 SCC 67.

35 Kerala State Industrial Development Corporation cannot be a party to a suit under Article 131. The extended definition of “State” under Article 12 does not extend to Article 131. See State of Bihar v. Union of India, (1970) 1 SCC 67, 75, para 18.

SCC Part
Cases ReportedSupreme Court Cases


Advocates Act, 1961 — S. 16 — Procedure for designation of Senior Advocates: Clarification of Guidelines prescribed for Supreme Court and all High Courts in Indira Jaising, (2017) 9 SCC 766, given. Instead of ten marks to be allocated to a counsel who has put in between ten to twenty years of practice, held, marks be allocated commensurate with standing of person at Bar, that is to say, one mark each shall be allocated for every year of practice between ten to twenty years. [Amar Vivek Aggarwal v. High Court of P&H, (2022) 7 SCC 439]

Arbitration and Conciliation Act, 1996 — S. 34 r/w S. 19 of the MSMED Act, 2006 — Setting aside of award: Requirement of deposit of 75% of amount in terms of award as a pre-deposit as per S. 19 of the MSMED Act, is mandatory. [Tirupati Steels v. Shubh Industrial Component, (2022) 7 SCC 429]

Armed Forces — Pension — One Rank One Pension (OROP) Policy — Validity of OROP Policy Communication dt. 7-11-2015: OROP Scheme as originally envisaged, envisaging future enhancement in rates of pension to be automatically applied to past pensioners, while Communication dt. 7-11-2015 issued by Ministry of Defence to Chiefs of Army, Air Force & Navy stipulating future revision in pension to past pensioners “at periodic intervals” i.e. every 5 yrs, OROP Policy Communication dt. 7-11-2015, affirmed. Implications of Expression “automatically passed on” in original policy vis-à-vis “at periodic intervals” in Communication dt. 7-11-2015, explained. [Indian Ex-Servicemen Movement v. Union of India, (2022) 7 SCC 323]

Constitution of India — Arts. 21 and 39-A — Fair trial: Challenge to fairness of trial on account of trial being expedited by the trial court is not tenable, if the due procedure appears to be followed during the course of trial. [Mohd. Firoz v. State of M.P., (2022) 7 SCC 443]

Debt, Financial and Monetary Laws — Non-Scheduled Banks/NBFCs/Chit Funds/Saving Schemes/Financial leasing — Generally: Non-Banking Financial Companies (NBFCs) are solely and entirely regulated by RBI under the RBI Act, as opposed to under State regulations, namely, Kerala Money Lenders Act, 1958 and Gujarat Money Lenders Act, 2011. State enactments, as Kerala Act and the Gujarat Act are not applicable to NBFCs. [Nedumpilli Finance Co. Ltd. v. State of Kerala, (2022) 7 SCC 394]

Penal Code, 1860 — S. 124-A — Offence of sedition: In this case instances of glaring misuse of S. 124-A alleged and validity of S. 124-A was challenged on that ground. Union of India agreeing to re-examination to find out the manner in which the requirement of security interests and integrity of the State should be balanced with the civil liberties of citizens. Interim order pending such re-examination by Government, issued that: till the re-examination of S. 124-A IPC by the Government is complete, held, it will be appropriate not to continue the usage of the aforesaid provision of law by any of the Governments. Directions with regard to pending FIRs, investigations and criminal proceedings relating to S. 124-A IPC also issued. Central Government given liberty to issue directions to States/Union Territories to prevent misuse of S. 124-A IPC. [S.G. Vombatkere v. Union of India, (2022) 7 SCC 433]

Prevention of Money-Laundering Act, 2002 — Ss. 3, 4 and 8(5) r/w Ss. 2(1)(u), 5(1), 5(5) and 44(1) Expln. — Prosecution for offences under Ss. 3 and 4 of the PMLA — Maintainability of — Requirements of: It is the duty of court to look into the allegations and the material collected in support thereto and determine whether prima facie offence(s) under the PMLA are made out. Standard of proof for conviction for offences under Ss. 3 and 4 is that of proof beyond reasonable doubt. [J. Sekar v. Enforcement Directorate, (2022) 7 SCC 370]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24 — Lapse of acquisition proceeding — Claim for, by subsequent purchaser: Subsequent purchaser who purchased land after publication of notice under Ss. 4 and 6 of the Land Acquisition Act, 1894 and after award of Land Acquisition Collector, in view of law laid down in DDA, (2022) 8 SCC 771, held, not entitled to claim lapsing of proceedings under 2013 Act. [Delhi Admn. v. Pawan Kumar, (2022) 7 SCC 470]

Service Law — Penalty/Punishment — Judicial review/Validity — Interference with punishment imposed by disciplinary authority: Order of substitution of punishment of removal imposed by disciplinary authority to compulsory retirement by Tribunal which was affirmed by High Court on ground that respondent delinquent had completed 39 yrs of unblemished service and since entire defrauded amount was paid by him with interest and no loss was caused to Department, held unsustainable. [Union of India v. M. Duraisamy, (2022) 7 SCC 475]

Specific Relief Act, 1963 — Ss. 19(b), 10 and 20 — Specific performance of agreement to sell immovable property when property is sold to subsequent transferee with notice of the prior agreement to sell — Proper form of relief in such cases: It is not necessary for the prior buyer-agreement-holder to seek cancellation of sale deed executed in favour of a subsequent purchaser. It is sufficient to implead subsequent purchaser in suit and seek relief of specific performance against original owner and also seek direction to subsequent purchaser to join in execution of sale deed in order to completely convey title to the prior buyer-agreement-holder. [P. Ramasubbamma v. V. Vijayalakshmi, (2022) 7 SCC 384]

Wild Life Bill
Op EdsOP. ED.


Wildlife conservation has garnered considerable attention lately, but there are a lot of caveats in the conventional concepts of natural life protection, especially with the continuing debate over fundamental entitlements. The 1972 Stockholm Conference on Wildlife Conservation and Environmental Concerns had an international influence on wildlife conservation in India. In a precursor to the rise of environmental movements in the 1960s, Governments in the number of nations determined and took steps to conserve nature and mitigate environmental harm inside their own boundaries. However, unlawful acts continued unabated, and environmental harm continued to rise internationally until the Governments understood in the 1970s that it was not enough to manage such practices in their own nations; they required a comprehensive strategy.

The United Nations convened its first Conference on the Human Environment in Stockholm, Sweden, in 1972, the official statement of which is known as the Stockholm Declaration of 19721. The assertion’s 26 criteria take a broad view of human impact on the planet, indicating that ecological challenges have been addressed openly and on a global basis for the first time in history. The Stockholm Convention’s first goal is to safeguard human health and the environment (forests, animals, and so on) against persistent organic pollutants. This year we are celebrating the 50th anniversary of the same. Therefore, let us look at the latest advancement in the field of wildlife conservation, which is the Wild Life (Protection) Amendment Bill, 20212. This Bill amends the Wild Life (Protection) Act, 19723.

The Preamble, as its name implies, is a preliminary or introductory declaration to any Act or law, in this case, the Bill. It expresses the previous law’s philosophy, purpose, uses, principles, aims, concepts, and ambitions. The Preamble itself is problematic. Whereas earlier the emphasis was on the “protection of wild animals, birds, and plants”; the amendment introduces the term “management”. While seemingly innocuous, this implies a shift in the mindset of the Government from the protection of wildlife to its management as a resource. The proposed framework can be dealt with as the topic of this Bill, which establishes a framework for “invasive alien species” (IAS) in the Indian legislative machinery. Invasive alien species can be amphibians (such as cane toads), plants, insects, fish, fungi, bacteria, and even all types of organisms, including seeds and eggs. Species that grow and reproduce rapidly, actively spread, and can be harmful are named “invasive species”. Invasive alien species are species that settle outside their natural past or present range and whose introduction and/or spread threaten biodiversity.

There have been initiatives in India over the last decade to develop inventories of invasive plant species and to examine the consequences of invasive species in various sections of the nation. The Indian Council of Forestry Research and Education established a Forest Invasive Species Cell in 2009 to strengthen the invasive species management skills and produce an invasive species database. Invasive species control was incorporated into an integrated forest protection plan. The National Tiger Conservation Authority’s most recent tiger census includes a review of the spread of invasive species in tiger landscapes across the country. A nationwide invasive species monitoring system was also envisaged in the 12th five year plan. Despite being a well-intentioned measure, the Bill provisions' scope remains limited and insufficient for regulating the threat of invasive species in the Indian ecosystem. In its current form, the Bill’s limited definition of the term “foreign” excludes invasive native species from its scope. The Bill’s definition of IAS differs from the definition and characteristics specified by the Convention on Biological Diversity (CBD).

The Government’s major responsibility for invasive species management may be traced back to two sources — Article 48-A4 of the Constitution. Being a Directive Principle of State Policy requires the State to endeavour to protect and improve the environment. Conversely, the CBD and the Aichi Targets are part of the International Convention on Biological Diversity (ICBD) (Target 9). However, the issue of invasive species is not addressed by this statutory framework. It fails to recognise that invasive species native to India remain unregulated when introduced to a new habitat within the nation. It does not appear on the IUCN Red List of Threatened Species. The Bill fails to recognise the negative consequences of native invading species.

One further major concern is that the Central Government could declare animals listed in Schedule II as vermin, effectively stripping them of legal protection and allowing hunters, trappers, and traders to hunt, trap, and trade species such as hyenas, Indian foxes, jackals, martens, sparrows, and parakeets. The term “vermin” is not defined in the Wild Life (Protection) Act of 1972. However, Schedule V includes a list of species classified as “vermin”, such as rats, crows, and foxes. The Centre can declare wild animals of any kind as “vermin” in any region and for a specific length of time under Section 62 of the Act5. These animals have been classified under Schedule V, allowing them to be hunted. Many experts, on the other hand, have claimed that mass culling is inefficient and does not alleviate human-animal conflicts. In light of this, it is worth noting that Section 62 of the Act’s validity is suspect under Articles 146 and 217 of the Constitution. When establishing laws that impact wildlife, the State must be cautious, according to the Directive Principles of State Policy (DPSP) and the fundamental obligations.

The Supreme Court pertinently extended the right to life to animals under Article 21 of the Constitution in Animal Welfare Board of India v. A. Nagaraja8. Although this ruling garnered criticism from attorneys and constitutional experts, it has been acknowledged and elaborated upon by the High Courts around the country. For example, in 2018 the Uttaranchal High Court9 and in 2019 the Punjab and Haryana High Court10 recognised all members of the animal kingdom to be legal entities with separate legal personalities and rights comparable to those of live people. Although one may disagree with these decisions, they are legitimate legal interpretations for the time being. This enlargement of Article 21 also implies that the same safeguards that apply to people, such as the right not to be deprived of life or personal liberty unless it is done in a just, fair, and reasonable manner, apply to animals. There are no procedural rules governing how and when Section 62 can be used. As a result, the Government has complete discretion over which creatures should be classified as “vermin”.

However, Section 62 does not discriminate between those who are directly responsible for crop devastation and others of the same species in its current form. It also has a number of legal flaws, particularly in relation to Articles 14 and 21. Humans and the rest of the ecosystem should live in harmony, according to our constitutional framework. The section jeopardises this delicate relationship and calls into question our core human ideals of compassion, empathy, and respect for all living things. According to the Bill, there is no systematic method or evaluation for declaring a species vermin, population decreases, and significant ecological repercussions are possible. Similarly, there are no rigorous scientific studies that can be used to determine which species require more protection. Also as result, many species are absent from Schedules I and II, and fauna groups such as reptiles, amphibians, invertebrates, and bats are significantly underrepresented.

The inclusion of “circus” in the concept of “zoo” can have a negative impact on conservation and, in fact, is antithetical to conservation due to the stress that circus animals are subjected to. The use of the term “circus” will also be in direct conflict with the Government’s efforts to prohibit the use of animals in Indian circuses, as indicated by a draft notice issued on 28-11-2018, prohibiting the use of all animals in circuses across the nation. The law also misses a chance to address crucial conservation gaps, such as granting Project Elephant legislative status and conserving animal routes and habitats outside of the protected area network. The measure also essentially permits the commercial sale and purchase of live elephants, which are India’s national animal. Live captive elephants have been exempted from the prohibitions in Schedules I and II as a result of the modification. A certificate of ownership and/or approval from the State Government is all that is necessary for sale or transportation. This leaves a gaping breach that will have a severe influence on wild elephant populations as well as captive elephant well-being. While we celebrate Stockholm @50, the authors believe that this Bill is a step backward rather than forward.

† Assistant Professor & Research Scholar, CHRIST (Deemed to be University), Delhi NCR. Author can be reached at <>.

†† Second year student, CHRIST (Deemed to be University), Delhi NCR.

1. Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration of 1972).

2. Wild Life (Protection) Amendment Bill, 2021.

3. Wild Life (Protection) Act, 1972.

4. Constitution of India, Art. 48-A.

5. Wild Life (Protection) Act, 1972, S. 62.

6. Constitution of India, Art. 14.

7. Constitution of India, Art. 21.

8. (2014) 7 SCC 547.

9. Narayan Dutt Bhatt v. Union of India, 2018 SCC OnLine Utt 645.

10. Karnail Singh v. State of Haryana, 2019 SCC OnLine P&H 704.

Material Affairs
Op EdsOP. ED.



A person above eighteen years of age is considered capable of making decisions in his life and material affairs. However, an adult may not be in a position to take his own decision in certain circumstances like mental disability. In such a situation law provides for appointment of a guardian for the person. The present statutory framework does not provide for appointment of guardian for the property of an adult under disability, permanent or temporary. A person suffering from severe illness affecting his reasons may survive on life support for months. Such situations the leave material affairs of the person in an indeterminate state. The person may not be able to withdraw money from his bank account or sell his property for funding his treatment or exercise his right as shareholder in a company.

Existing legal provisions

The Guardians and Wards Act, 18901 deals with appointment of guardian for person and property of minors. The Hindu Minority and Guardianship Act, 19562 recognises parents as the natural guardian for minor for his person and property. The Hindu Minority and Guardianship Act, 1956 enables a natural guardian to appoint by his will a guardian for person and property of the minor. While dealing with the property of a minor, a guardian under both the Acts, is required to take prior permission of a court. A guardian is enjoined to deal with property as carefully as a man of ordinary prudence would deal with it, if it were his own and to do all acts which are reasonable and proper for the realisation, protection, or benefit of the property.

One of the objects3 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999 (for short the “National Trust Act, 1999) is to evolve procedure for the appointment of guardian and trustees for persons with disabilities. Section 144 of the National Trust Act, 1999 provides for appointment of a guardian of a person with disability on application of a parent, relative or registered organisation to Local Level Committee constituted under the Act. The guardian is required to have care of the person and is responsible for the maintenance of his property. Further, such guardian is required to submit inventory of property belonging to the person. Also, he is required to submit account of the property and assets in his charge, the sums received and disbursed on account of person with disability.

The Mental Health Act, 19875 in Chapter VI, provided mechanism to inquire into whether alleged mentally ill person was incapable of taking care of himself or of managing his property or both. Upon inquiry, the District Court had the power to appoint guardian to take care of the person and of a manager for the management of the property. The Mental Health Act, 1987 has been repealed by the Mental Healthcare Act, 20176.

The Mental Healthcare Act, 2017 deals with the medical treatment of persons with mental illness. Mental illness has been defined as substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet ordinary demands of life, mental conditions associated with the abuse of the alcohol and drugs. Section 57 of the Mental Healthcare Act, 2017, entitles a person to make an advance directive in writing specifying the way such person wishes to be cared for and also the way such person wishes not to be cared for mental illness. The advance directives are registered in online register which may be made available to mental health professionals. The person may appoint his nominee as representative who has the power to give directions in treatment considering the person's best interest. The Mental Healthcare Act, 2017 does not contain provision for appointment of a guardian for property of mentally ill person similar to the provision in repealed Mental Health Act, 1987.

The Rights of Persons with Disabilities Act, 20168 deals with a person with long term physical, mental, intellectual, or sensory impairment which hinders his full and effective participation in society equally with others. Section 149 of the Act has provision for appointment of limited guardian by the District Court or designated authority to take legally binding decisions on behalf of person with disability in consultation with such person. Limited guardianship has been explained as a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability. Limited guardianship is limited to a specific period, specific decision and situation and operates in accordance to the will of the person with disability.

The laws discussed are not adequate to deal with a situation when a person is in intensive care unit lying unconscious, not being able to operate his bank account to fund his treatment or take care of his property.

Writ jurisdiction

Usually, in cases of a person being in a state of incapacity or disability on account of being in a comatose condition or vegetative state, next of kin such person have approached High Courts invoking their jurisdiction under Article 226 of the Constitution10. In Sairabanu Mohammed Rafi v. State of T.N.11, the Madras High Court appointed the wife as guardian of the husband for the purpose of dealing with his immovable properties and also to operate his bank account. The husband was in coma. The Court observed that there is no legal provision to appoint a guardian in such situation. The Court also cautioned that the petitioner could have approached the civil court by way of common law remedy.

In Shobha Gopalakrishnan v. State of Kerala12, the Division Bench of the Kerala High Court, in words of P.R. Ramachandra Menon, J. responded to an “SOS call” (save our souls call) from two sinking families of the persons lying in coma who were in need of funds to provide treatment and life support to the victim. The Court held that a person in coma does not come with purview of multiple disabilities as per the National Trust Act, 199913. The Court made it clear that so far as the case of a patient lying in comatose state was not covered by any of the statutes for appointment of guardian and the petitioners were justified in approaching the Court under Article 226 of the Constitution. The Court has laid down detailed guidelines as a temporary measure till the field is taken over by the proper legislation. Some of the guidelines are:

(i) Petitioner should disclose the particulars of property of the person in comatose state.

(ii) Examination of the person by Medical Board.

(iii) Factual report by Revenue Authorities after visiting the person at his residence.

(iv) Making all legal heirs of the person party to the petition.

(v) In absence of close relative, social welfare officer can be sought to be made guardian.

(vi) Appointment shall be in respect of specific property or bank account of the person.

(vii) Submission of half yearly report regarding utilisation funds by the guardian with Registrar General of High Court.

The Bombay High Court in Rajni Hariom Sharma v. Union of India14 also observed that that there is no statutory provision for appointment of guardian for person lying in comatose state. In this case, a bank had refused to allow the wife to put her signature in place of her husband who was in coma. The Court allowed the petition of the wife to be appointed guardian of the husband exercising its writ jurisdiction. The Court directed monitoring of the guardian through State Legal Aid Committee for period of two years.

The Delhi High Court in S.D. v. Govt. of NCT of Delhi15 appointed Guardianship Committee consisting of the wife, son, and brother as nominated representative under the Mental Healthcare Act, 2017 and also to manage all affairs of the patient including medical treatment, healthcare decisions qua daily living, financial affairs dealing with immovable and movable assets, decision qua shareholding of the patient, operate bank account. In this case, the relatives contested as to who should be appointed as the guardian. The Court observed that under Order 32-A, Rule 5 of the Code of Civil Procedure16, the civil court would have jurisdiction to appoint guardian in respect of persons with disability. The Court noted the absence of provision in the Mental Healthcare Act, 2017 in respect of management of financial affairs, appointment of guardian or the manner in which the movable/immovable property of the mentally ill person is to be taken care of.

Powers of civil court

The provisions of Order 32-A of the Civil Procedure Code17 have been used by civil courts in appointing guardian for the property of a person under a disability. The relevant provisions of Order 32-A are:

1. Application of the order

(1) The provisions of this order shall apply to suits or proceedings relating to matters concerning the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this order shall apply to the following suits or proceedings concerning the family, namely:

* * *

(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;

* * *

5. Duty to inquire into facts

In every suit or proceeding to which this order applies, it shall be the duty of the court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.

Partly relying upon Order 32-A, G.P. Patel, J. of the Bombay High Court has decreed a suit18 filed by two advocates to be recognised as the guardian of a fellow advocate in respect of all his personal and professional affairs. The advocate had no lineal descendants. Therefore, the suit was not covered strictly by provisions of Order 32-A CPC. The plaintiffs submitted that the advocate was in urgent need of a legal guardian to look after his obligations including claim for medical treatment and managing his professional obligations regarding monies lying in the client account. The Court observed that there is vacuum in law in the current laws of guardianship in para 20 as under:

20. The present case falls only partly within the provisions of Order 32-A(2)(c). But as this plaint points out, the state of the law in India simply does not make any sort of provision for a situation such as the present one. Mr Damania is neither mentally challenged, nor of unsound mind nor a minor. He has no family. He is incapacitated by an illness and the current laws of guardianship do not provide any recourse in a situation like this. This is, therefore, something of a vacuum in law. That, however, does not mean that Courts are helpless or that situations such as these should go unattended and unaddressed. I can draw support from the provision of Order 32-A CPC, Kathawalla, J.'s previous order of 6-3-2017 and also in a properly brought suit make reference to the omnibus provision for doing substantial justice that we find in Section 151 CPC19. This says that nothing in the CPC limits or otherwise affects the inherent power of the Court to make such orders as may be necessarily for the ends of justice or to prevent abuse of the process of the Court.20

The Court held that the suit lied outside the usual frame of a regular suit which demands the issue and service of writ of summons, written statement, etc. Considering the cause of action and credentials of the plaintiff, the Court decreed the suit at interim stage. The Court also relied upon earlier judgment of the Bombay High Court in Pragnesh Podar v. Alka Podar21 in which case the Court decreed the suit by declaring the plaintiff as the lawful guardian of Narayan Podar and manager of the assets, business properties, affairs and operate bank accounts.

Parens patriae jurisdiction

The High Courts while allowing the writ petitions have discussed the doctrine of parens patriae which implies that the king is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The Constitution Bench judgment of the Supreme Court in Charan Lal Sahu v. Union of India22 has explained parens patriae jurisdiction as the right and duty of the sovereign in public interest to protect person under disability. In Aruna Ramachandra Shanbaug v. Union of India23, the Supreme Court has observed that the Court is also a “State” within the meaning of Article 1224 of the Constitution, therefore in the case of an incompetent person who is unable to take decision whether to withdraw life support or not, it is the court alone as parens patriae which must take the ultimate decision though the view of the near relatives, next of kin and doctors must be given due weight. The High Courts have exercised parens patriae jurisdiction to appoint a guardian.


The vacuum in law regarding appointment of guardian for adult to deal with his property and assets needs to be filled up with comprehensive legislation. Living person by a testament in entitled to give directions regarding his estate and affairs after his demise. Similarly, a living person should be empowered to appoint guardian for his person and property when he is in good health with express powers to manage his financial affairs during his illness. The guardian may be subjected to filing regular accounts with courts similar to the National Trust Act, 1999. Also, provisions in terms of guidelines laid down by the Kerala High Court would be useful in preventing abuse by the guardian.

† Practicing Advocate, Bombay High Court.

1. Guardians and Wards Act, 1890.

2. Hindu Minority and Guardianship Act, 1956.

3. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999, S. 10(f) (hereinafter National Trust Act, 1999).

4. National Trust Act, 1999, S. 14.

5. Mental Health Act, 1987.

6. Mental Healthcare Act, 2017.

7. Mental Healthcare Act, 2017, S. 5.

8. Rights of Persons with Disabilities Act, 2016.

9. Rights of Persons with Disabilities Act, 2016, S. 14.

10. Constitution of India, Art. 226.

11. 2016 SCC OnLine Mad 8091.

12. 2019 SCC OnLine Ker 739.

13. National Trust Act, 1999.

14. 2020 SCC OnLine Bom 880.

15. 2021 SCC OnLine Del 4856.

16. Civil Procedure Code, 1908, Or. 32-A R. 5.

17. Civil Procedure Code, 1908, Or. 32-A.

18. Nitin G. Thakker v. State of Maharashtra, Suit 75 of 2020, judgment dated 13-8-2020. [Pending uploading]

19. Civil Procedure Code, 1908, S. 151.

20. Nitin G. Thakker v. State of Maharashtra, Suit 75 of 2020, judgment dated 13-8-2020. [Pending uploading]

21. 2017 SCC OnLine Bom 10139.

22. (1990) 1 SCC 613.

23. (2011) 4 SCC 454.

24. Constitution of India, Art. 12.

SCC Part
Cases ReportedSupreme Court Cases


Army Act, 1950 — Ss. 125, 126, 69, 3(ii) and 70 — Criminal trial — Concurrent jurisdiction of court martial under Army Act and criminal courts under CrPC: When Designated Officer/Commanding Officer impliedly declined to exercise discretion to conduct trial in court martial. Trial by criminal court under CrPC, held, mandatory. In a case of concurrent jurisdiction, when court martial has impliedly declined to conduct trial, criminal court cannot direct the court martial to do the same. [State of Sikkim v. Jasbir Singh, (2022) 7 SCC 287]

Civil Procedure Code, 1908 — Or. 41 R. 27 — Admissibility of additional evidence in appellate court not adduced in the court of original jurisdiction: Admissibility of additional evidence under Or. 41 R. 27 CPC does not depend upon the relevancy of the issue on hand, or whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. That is, whether such additional evidence has a direct bearing on pronouncement of the judgment. [Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247]

Constitution of India — Arts. 21, 32 and 226 — Constitutional/Public Law Torts/Public Safety — Violation of life and personal liberty: Where life and personal liberty have been violated, absence of any applicable statutory provision(s) for compensation is of no consequence. Right to life guaranteed under Art. 21 is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of any statutory provision as such for preserving that right. Thus, a writ petition seeking compensation is maintainable. Furthermore, Art. 21 has to be read into all public safety statutes, since prime object of public safety legislation is to protect individual and to compensate him for loss suffered. Duty of care expected from State or its officials functioning under public safety legislation is very high. [Sanjay Gupta v. State of U.P., (2022) 7 SCC 203]

Constitution of India — Arts. 300-A and 226 — Right to property: Deprivation of property can only be permitted when and to the extent it is strictly in compliance with applicable law. Land reserved for public purpose under Town Planning law. Lapse of acquisition due to inaction of executive to acquire land within prescribed statutory time period cannot be interfered with by Court contrary to scheme of the applicable statute. [Laxmikant v. State of Maharashtra, (2022) 7 SCC 252]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions: In this case, directions were issued to implement roster point-based reservation for preferential candidates as followed by JIPMER in all AIIMS institutes. However, roster points need not be similar to that of JIPMER. This order directed to be applicable for admission from year 2022. Students Assn. [AIIMS v. AIIMS, (2022) 7 SCC 201]

Insolvency and Bankruptcy Code, 2016 — Ss. 8, 9, 5(20), 5(21), 3(6) and 3(12) — Procurer/purchaser of services/goods from corporate debtor by rendering advance payments to it — Consideration of, as operational creditor: Debt arising from a contract in relation to supply of goods/services by corporate debtor amounts to “operational debt”. [Consolidated Construction Consortium Ltd. v. Hitro Energy Solutions (P) Ltd., (2022) 7 SCC 164]

Land Acquisition Act, 1894 — S. 23 — Compensation awarded in another proceeding: Extent to which compensation awarded in another proceeding may be relied on, all relevant factors and necessity of consideration of it, explained. [LAO v. N. Savitha, (2022) 7 SCC 256]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 35 r/w Ss. 13(2), 13(4) and 2(1)(zc) to (zf) — Dues of secured creditor, priority of, over dues of Central Excise Department: Dues of secured creditor over the properties of assessee have priority over dues of Central Excise Department. Prior to insertion of S. 11-E of the Central Excise Act, 1944 there was no provision in the 1944 Act inter alia providing for first charge on the property of the assessee or any person under the 1944 Act. Further, S. 35 of the SARFAESI Act inter alia provides that the provisions of the SARFAESI Act shall have overriding effect on all other laws. Also, even the provisions contained in S. 11-E of the Central Excise Act are subject to the provisions contained in the SARFAESI Act. [Punjab National Bank v. Union of India, (2022) 7 SCC 260]

Esports in India
Experts CornerSiddharth Batra



Electronic sports (esports) have emerged globally during the last two decades and are evolving at an exponential pace in India. Its domain remains a grey area due to lack of awareness amongst the general public. Esports is a relatively new field, though popular among the younger population, but the general public is still unaware about it. In India, there is no specific set of regulations that govern esports or any other aspect related to it. The Government of India is yet to promulgate an enactment in order to govern the same, meaning thereby it remains fairly unregulated except for some State regulations.

In a press statement dated 4-2-2021, the Ministry of Youth and Affairs acknowledged the emergence of esports and also stated that esports are very different from iGaming and gambling2. The Prime Minister of India has also acknowledged the growth of the gaming sector while addressing the country with respect to the impact of Union Budget for 2022-20233. This indicates that esports are being recognised as an emerging field and requires Parliament to ponder over a legislation that will govern this specific field. The Data Privacy Bill is pending consideration before Justice B.N. Srikrishna Committee in the Parliament which will also have a direct impact on any legislation on esports. It is not just that we do not have legislation to govern esports, but the Ministry of Sports is yet to recognise a federation as per the sports code. In order to dwell upon the same, we need to shed some light on the global federations.

What is esports?

Esports are essentially electronic sports in which a large number of players with the necessary skill sets compete against each other on an online platform.4 It mostly consists of teams/individuals participating in online tournaments to achieve the highest levels/rankings.5 Esports are digitally assisted activities with varying degree of materiality, virtual environment, and technical involvement. Many sportsmen have opposing viewpoints because it does not need physical labour6. Nonetheless, the amount of mental effort required makes it as demanding as any other sport.

Esports are very different from conventional sports as one is played on the ground and the other is played virtually. Therefore, the mode of conduct is very different. As to the way a lawyer sitting anywhere in the country can attend a matter in the Supreme Court virtually, similarly, players in different States can participate in an event that is taking place in another part of the country or anywhere in the world. Therefore, the contours of esports are different from those of any conventional sport. India talks about one nation, one tax. Similarly, the legislation governing esports cannot be limited at the State level.

In conventional sports, it is the State level association and the State talent that has been nurtured in the homeland of the State. However, contours are different in esports, particularly in relation to a world opening up for the metaverse.

At the international level, federations have been formed with the goal of creating platforms for athletes to promote esports and to organise events. There are several such federations in India as well, however, none of them are currently recognised by the Ministry of Youth and Affairs.

Where will esports be placed under the Constitution?

Articles 2457 and 2468 of the Constitution of India, read with Schedule VII, bifurcate the subject-matter upon which the Union and the State can make laws. It implies that the Union's and the State's powers are distributed, and if there is an element that requires attention from both the Union and the State, it is subject to the concurrent list.

The entries from Schedule VII which are relevant and required for the purpose of the present discussion are as follows:

“List I

10. Foreign affairs; all matters which bring the Union into relation with any foreign country.

13. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.

97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.

List II

33. Theatres and dramatic performances; cinemas subject to the provisions of Entry 60 of List I; sports, entertainments and amusements.”

List I covers subject-matter upon which only the Union can frame laws.

List II covers the subject-matter upon which only a State can frame laws.

Lastly, there is a Concurrent List under which both the Parliament and State authorities can formulate laws and in case of any repugnancy, the law framed by the centre shall prevail.

Sports are currently a State subject in India9, but esports, given the band with it covers, cannot be legislated by one State alone. This leads us to the question as to whether esports can be regulated individually by separate States or we require a legislation at a national level for governing the same. In other words, either sports being a State subject as per Schedule VII, will have to be shifted to the Concurrent List to enable a national legislation on it or assuming competence on residuary subjects it shall form a part of List I.

However, Entries 10 and 13 of List I, Schedule VII discuss foreign affairs and participation in various events10. Its main objective is to vest the Union with the authority to regulate any event that takes place on a national or international scale. The basic rationale behind it is that the participants competing represent the country and not individual States.

If the notion that esports is not a segment of sport is accepted in view of the Schedule VII, then according to Entry 97 of List I, it can also fall under the ambit of List I, as anything that is not a subject of List II or List III automatically falls under the ambit of List I which is directly the subject-matter of the Union.

The possibility of adding “sports” to the Concurrent List has been discussed at various occasions. However, no steps have been taken in that direction. According to the Ministry of Youth and Affairs, no proposal is pending in this regard11.

So, if sports are shifted to List III, esports should also fall under List III as esports is a category of sports12. However, its scope is much broader than sports because, firstly, access to esports is much simpler and secondly, esports is linked to technology, therefore Central Government's involvement is necessary to safeguard people's interests from cybercrime. Data protection laws will play a big role while coming up with a legislation to regulate esports in India. As a result, esports should be included to the Union List since monitoring and assessment are necessary at all levels.

Present legislations and esports

At present, India is limited only to the following set of legislations related to esports; the Public Gambling Act, 186713 (Gambling Act) and the Prize Competitions Act, 1955. As per Section 12 of the Gambling Act, its provisions are not applicable to games which require skill. Therefore, Gambling Act cannot be stretched to a point where it touches esports as it is played virtually and requires a skill set. Evidently, esports is not covered under the Gambling Act and demands a separate legislative framework.

Since sports is a State subject, several State Legislatures have enacted legislations to regulate esports in their respective States. The Sikkim Online Gaming (Regulation) Act, 2008 (Sikkim Act) is one such example. It was enacted with the goal of regulating internet gaming and Tax on such activities. This statute also defines “online gaming” and “sports gaming”. It addresses various aspects related to online gaming such as mandating the licensing of online games, prescribing offences related to online gaming, defining punishment and so on.

The definition of “online gaming” and “sports gaming” are reproduced below:

2. Definitions:

(k) “Online gaming” means any gaming, where any player enters or may enter the game or takes or may take any step in the game or acquires or may acquire or may acquire a chance in any lottery, by means of a telecommunication device including the negotiating or receiving of any bet by means of a telecommunication device;

(p) “Sports gaming” means games involving the prediction or the results of sporting events and placing a bet on the outcome, in pad or in whole, or such sporting event;

Another notable example is the Nagaland Prohibition of Gambling and Promotion and Regulation of Online Games of Skill Act, 2015 (Nagaland Act), which was enacted to outlaw gambling and promote online gaming within Nagaland's territorial jurisdiction. The Act also places an obligation with respect to licensing.

The Nagaland Act defines “game of skills” as

2. Definitions:

(3) “Games of skill” shall include all such games where there is preponderance of skill over chance, including where the skill relates to strategising the manner of placing wagers or placing bets or where the skill lies in team selection or selection of virtual stocks based on analyses or where the skill relates to the manner in which the moves are made, whether through deployment of physical or mental skill and acumen.

The Nagaland Act also includes “virtual sports” under the definition of “games of skills”.

There is a visible disparity across various State legislations on the aspect of sports activities, as it falls under List II. For example, States including Andhra Pradesh, Assam, Odisha, Meghalaya, Nagaland, Arunachal Pradesh, Sikkim and Telangana have prohibited internet poker, others have no such prohibition. This demonstrates the enormous difference between State Legislatures on the aspect of governing sports activities and also indicate the need to establish consistency through a parliamentary legislation. Interestingly, none of the State legislations have yet defined esports, a completely distinct concept demanding a separate legislative framework.

Looking at current judicial trends, the Supreme Court of India in the landmark case of K.R. Lakshmanan v. State of T.N.14, provided a strict bifurcation between the “game of skills” and “game of chances”. Relying on such distinction in Varun Gumber v. UT of Chandigarh15, organised internet gaming tournaments, fantasy sports, and so on have all been characterised as “games of skill” by the Punjab and Haryana High Court. Further, it was ruled that fantasy sports, such as horse racing require skills and a sense of judgment in order to make the necessary moves. The High Court of Bombay in Gurdeep Singh Sachar v. Union of India16 also had a similar view, observing that fantasy gaming is not equivalent to gambling activities.

In 2018, an attempt towards consolidating esports related issues was addressed by Member of Parliament, Mr Shashi Tharoor by introducing a private Bill —”the Online Gaming and Prevention of Fraud Bill, 2018″. The objective of the Bill was “to establish an effective regime to maintain the integrity of sports in India by preventing and penalising sports fraud, regulation of online sports gaming and for matters connected therewith or incidental thereto”. However, the Bill is currently being debated in Parliament.17

Being a subject-matter of List II, few States have enacted laws to prevent gambling and promote online gaming but, as mentioned earlier, even they have not touched upon esports. Another pertinent issue is that of uniformity — only if a rigid set of laws are passed by the Parliament, can we expect the complications related to esports to get subdued. Promulgation of legislation will not only provide legitimacy to this industry but will also serve twin purposes of economic growth and data protection.

Comparative law

The laws connected to esports are addressed distinctly in the United States of America,18 as different aspects of it impact different segments of law. Gambling activities are lawful in the US if conducted within the jurisdiction where gambling is officially permitted or authorised by the gaming commission. No specific legislation however exists even in the US, placing India and the US at an equal footing in the matter of esports regulation.

Under the system prevailing in the United Kingdom,19 there is no specific set of regulations that solely govern esports.

Similar to position in the US, the subject-matter related to esports is bifurcated into different segments of law. While gaming and related aspects are covered under the Gambling Act, 2005 (Section 6), protection of data is covered under the Data Protection Act, 2018.

Many other countries like Japan, South Africa do not have a defined framework for regulation of esports and are still exploring the dynamics of it.


Esports, as stated at the outset, is a relatively new notion that is still evolving throughout the world. There are several federations striving to make it a worldwide phenomenon. In India, there are no regulations to govern esports. However, as stated earlier, the Ministry of Youth and Sports has acknowledged the rise of this form of sport.

If esports is listed in List II, each State will have a separate set of regulation which may result in lack of uniformity. It is therefore advisable that it is included in either List I or List III, and if it is included in List III, every State Government develop their own framework based on the national legislation. It is pertinent to add that while doing so, the State Government must not enact anything that fall repugnant to the central legislation. Recently, the Supreme Court struck down the West Bengal Housing Industry Regulation Act (WB-HIRA), 2017 in Forum for People’s Collective Efforts v. State of W.B.,20 observing that, “RERA being an exhaustive code regulating the contractual relationships between promoters and buyers in the real estate sector, WB-HIRA entrenches on an occupied field and is hence repugnant and void under Article 254(2) of the Constitution.”

* * *

† Advocate-on-record, Supreme Court of India. Author can be reached at <>.

†† Associate, Satramdass B & Co., Delhi, Author can be reached at <>.

2. Ministry of Youth and Affairs, Gaming and Esports Policy, Question No. 48, answered on 4-2-2021.

3. PM India, PM's address at webinar on positive impact of Union Budget 2022 on the education and skill sector <>.)

4. Karl Werder, Esport, The International Sports Law Journal (ISLJ).(not found)

5. Karl Werder, Esport, The International Sports Law Journal (ISLJ). (not found)

6. Juho Hamari and Max Sjöblom, “What is eSports and Why do People Watch it?”

7. Constitution of India, Art. 245.

8. Constitution of India, Art. 246.

9. Constitution of India, Sch. VII, List II.

10. Constitution of India, Sch. VII, List II.

11. Ministry of Youth and Affairs, Gaming and E-Sports Policy, Question No. 48, answered on 4-2-2021.

12. Daniel Kane, Brandon D. Spradley, “Recognising Esports as a Sport”, United States Sports Academy <>

13. Hereinafter referred as “Gambling Act”.

14. (1996) 2 SCC 226.

15. 2017 SCC OnLine P&H 5372.

16. 2019 SCC OnLine Bom 13059 : (2019) 75 GST 258.

17. Rushabh Gurav, “Contemporary Issues in E-Sports Law: ADR, Development and Regulation and the E-Sports Bill” published in International Journal of Law Management and Humanities, Vol 4 Issue 2.

18. Hereinafter referred as the “US”.

19. Hereinafter referred as the “UK”.

20. (2021) 8 SCC 599.

Dark Patterns
Op EdsOP. ED.


Dark patterns are malicious or manipulative interface designs or cyber tools that try to guide end users into desired behaviour patterns. This is widely seen in the Indian cyberspace presently as some companies combine the option of using the wallet and the post-paid option, often depicted as — wallet + postpaid. Here the user is many a time unable to exercise consent whether they want to avail the postpaid option if the wallet lacks sufficient balance for the payment required. Additionally, dark patterns could also be something as simple as an extra item being added into your cart during checkout, or even you being nudged into accepting terms that you were initially opposed to, or a tedious process to unsubscribe or delete an account.

What are dark patterns?

The term dark pattern was first coined by Harry Brignull who described dark patterns as manipulative user interface tricks “that make you do things that you did not mean to”. The US Federal Trade Commissioner Rohit Chopra also recently defined dark patterns as “design features used to deceive, steer, or manipulate users into behaviour that is profitable for an online service, but often harmful to users or contrary to their intent”.1 That is to say, dark patterns tend to violate users’ privacy and breach consent through the use of innovative technological designs in order to aid digital commercial platforms.

However, it important to note that while all dark patterns are deceptive in nature, majority are not considered to be fraudulent or deceptive with the current paradigm of data and privacy legislations. Some nudging patterns or methods employed in dark patterns might be inherently infuriating to the users, however, classifying them as illegal in the current legal framework is difficult. Further, dark patterns are numerous, and exploit myriad biases in individuals. Purdue research in 2018 attempted to classify them into 5 categories — nagging, obstruction, sneaking, interface interference, and forced action.2 Harry Bringnull, also categorised dark patterns into 12 forms.3 In this regard, the abovementioned example of wallet and post-paid options would be considered as interface interference; whereas instances where users are compelled to sign in or share their location can be considered as forced action.

Furthermore, dark patterns rely heavily on confirmshaming users into accepting certain terms and conditions that would initially be opposed to. Confirmshaming is the use of guilt-inducing, deceptive content to persuade users to take a specific action. Exit-intent pop-ups, and other conversion or retention-based windows and interactions use the strategy, which is a form of dark pattern.4 A common example of this is where YouTube asks users if they are okay viewing ads, without a subscription. LinkedIn was also subject to a class action lawsuit for the use of friend spam dark pattern. Their website made it appear as though users were sending the emails individually while actually sending automated emails to users’ contacts. A US $13 million settlement was ultimately paid by LinkedIn for their dishonest actions.5

The proliferation of dark patterns in the Indian cyberspace has brought privacy and cyberspace regulations to light. Dark patterns tend to exploit personal data, and their carte blanche use cannot be curbed with the existing statutes. Further, as dark patterns involve personal data — which could include details about a person’s attributes or characteristics and be used to identify them — and in some cases sensitive personal data or critical personal data, regulating it is all the more important. Informational privacy of users is also at stake when dark patterns are used to obtain consent by illicit means. Moreover, autonomy and dignity of individuals is involved when informational privacy is violated, as the same eventually amounts to a violation of fundamental rights, and the right to exercise free will and consent.

Dark patterns and the façade of decisional privacy

The General Data Protection Regulation (GDPR) defines consent as “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”.6 Dark patterns tend violate user consent and expectations by asking them to forfeit or jeopardise resources like time, money or social capital to an extent that they were not expecting to.7 This form of manipulation threatens the privacy of users by not only increasing the resources spent on the platform, but also by compromising the decisional privacy and invading personal autonomy.

In the Indian context, Clause 11 of the Personal Data Protection Bill, 2019,8 recognises user consent as a key component of data protection frameworks, where personal data cannot be processed without obtaining valid consent from the user. It also states that consent is valid only if it is: (a) freely given; (b) on the basis of an informed decision; (c) specific in nature; (d) clearly expressed; and (e) capable of being withdrawn. It also states that the provision of services cannot be conditional upon the provision of services or the performance of a contract, and users must be notified of any risks associated with giving consent. Through K.S. Puttaswamy v. Union of India (1) judgment discourse has fostered immensely in the privacy realm, the Court said that the individual and his privacy is inextricably linked.9

However, manipulation through dark patterns allows platforms to first collect infinite amount of data by exploiting the attention cycle, secondly use or disseminate the data collected, thirdly capitalise on the data by profiling users and their practices, and fourthly derive from the privacy costs associated with decisional privacy.10 Hence, the power of decision-making and privacy is compromised and eroded when dark patterns affect free will,11 or interfere with self-interest and autonomy of individuals. Additionally, consent must be freely and unambiguously given, an implicit or opt-out consent that does not constitute to a positive action cannot be considered as consent. Therefore, consent must be explicit, that is, there must be a clear, positive, affirmative act.

Attempts to regulate dark patterns globally

Internationally in an attempt to regulate dark patterns, the EU in Article 25 of the GDPR requires data controllers to implement privacy by design and by default, while this might help in prohibiting default settings, small print and other dark pattern strategies, it cannot prevent their use.12 Section 5 of the Federal Trade Commission (FTC) Act also looks to promote decisional privacy that the FTC should begin to enforce.13 The European Data Protection Board adopted “guidelines on dark patterns in social media platform interfaces”on GDPR Article 60.14 The guidelines provide designers and users of social media platforms with practical tips on how to identify and prevent so-called “dark patterns” in social media interfaces that violate GDPR rules. In the USA, states have also brought about legislations to protect users from dark patterns. The California Privacy Rights Act, in its new definition of consent includes an “agreement obtained through use of dark patterns does not constitute consent”. The law defines “dark patterns” as “a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice, as further defined by regulation”. The Colorado Privacy Act, definition of consent specifically excludes “agreement obtained through dark patterns”.

Remarkably, the abovementioned legislations and guidelines recognise that consent obtained through manipulation does not amount to effective consent. The Report of the Joint Parliamentary Committee on the Data Protection Bill, 2019,15 adopts the concept of data fiduciaries from the GDPR and acknowledges that a data fiduciary is required to give the data principal notice when collecting the data principal’s personal information, even if the information is not being taken directly from the data principal. Notably, it also states that the notice must contain the rights of the data principle, the nature and categories of personal data being collected, and the various purposes for which personal data is being processed. Implicitly, the Report also notes that to process sensitive personal data that is likely to cause significant harm to the data principal consent must be obtained, in clear terms. However, this pertains only to sensitive personal data, and excludes personal data, or non-personal data from the contingency of obtaining consent to process data; leading platforms to exploit users as they lack information. For example, if a postpaid and wallet option is combined and the wallet lacks balance, the user would be taking a loan without their knowledge. Thus, giving rise to questions like whether the users provided effective consent to a loan, and eventually raising a claim on the violation of fundamental rights under Articles 1916 and 2117 of the Constitution.

Legal implications of dark patterns in India

For a violation of Articles 19 and 21 of the Constitution to be legitimate it must pass the test of proportionality articulated by the Supreme Court in K.S. Puttaswamy v. Union of India (1)18 and Puttaswamy v. Union of India (2)19 which means the restrictions must be (a) imposed by law; (b) a suitable means of achieving a legitimate aim; (c) necessary and must not disproportionately impact the rights of citizens; and (d) have sufficient procedural guarantees to check abuse against State interference. However, in the case of dark patterns none of the above criteria are met, except to further the interests of commercial platforms. Regrettably, the Personal Data Protection Bill, 2019, and other existing models and discourse on data protection focus on the growth of the digital economy at the cost of individual privacy.20

As individual privacy is eroded through dark patterns, it eventually compromises the liberty and dignity of individuals as well, since their capacity to make decisions is deprived. This raises numerous questions in light of the Report on the Data Protection Bill, 202121 which also states that consent managers, who will be data fiduciaries registered with the Data Protection Authority (DPA), shall provide interoperable platforms that aggregate consent from a data principal. Simultaneously, as the DPA’s powers have not been delineated, nor are they broad enough like the FTC to regulate dark patterns, India faces a two-fold conundrum (i) of identifying a dark pattern; (ii) preventing misuse through an enforcement authority of the identified dark pattern.

The suggestion of including “privacy by design” in the report too cannot comprehensively prevent dark patterns.22 Therefore, recognising the term “dark patterns” by legislation is crucial. Additionally, drawing from the EU Guidelines, it is important for principles of transparency, accountability, and data protection, along with international best practices (GDPR provisions), and domestic regulations (upcoming Data Protection Bill) to be placed at the forefront that can help dark pattern assessments. The DPA may also consider formulating a checklist that serves to identify all the potential dark patterns, so that ethical design is used by UX designers in the future.


In conclusion, India’s lack of data protection legislation may lead to an unabated use of dark patterns, which may affect various socioeconomic classes differently, as only a minority of the population has the digital literacy and awareness to identify and evade dark patterns. However, considering India’s socioeconomic situation and class differences, it is necessary that dark patterns must be regulated through legislation; as not doing so involves unrestricted access to personal data of individuals — without any means for remedy in instances of misuse — which only serves to exacerbate information asymmetry.

† 3rd year student, BA LLB (Hons.), National Law University, Jodhpur. Author can be reached at <>.

1. Statement of Commissioner Rohit Chopra, Regarding Dark Patterns in the Matter of Age of Learning, Inc. Commission File Number 1723186, 2-9-2020, <>.

2. Colin M. Gray, et al., “The Dark (Patterns) Side of UX Design”, CHI 2018 Paper, April 21—26, <>.

3. Harry Brignull, “Types of Dark Pattern”, Dark Patterns (2019), <> <>.

4. Henry Brignull, “Confirmshaming”, Deceptive Design, <>.

5. John Brownlee, “After Lawsuit Settlement, Linkedln’s Dishonest Design is Now a $13 Million Problem”, FastCompany (5-10-2015), < 13-millionproblem> <>.

6. General Data Protection Regulation, Art. 4(11) (hereinafter “GDPR”).

7. Chris Lewis, Irresistible Apps: Motivational Design Patterns for Apps, Games, and Web-Based Communities (2014).

8. Personal Data Protection Bill, 2019, Cl. 19.

9. (2017) 10 SCC 1.

10. Gregory Day and Abbey Stemler, “Are Dark Patterns Anticompetitive?”, 72 Ala L Rev 1 (2020).

11. Ryan Calo, “Digital Market Manipulation”, 82 Geo Wash L Rev 995, (2014).

12. GDPR, Art. 25.

13. Federal Trade Commission Act, S. 5, <>.

14. Guidelines on Dark Patterns in Social Media Platform Interfaces: How to Recognise and Avoid them, European Data Protection Board, <>.

15. Report of the Joint Parliamentary Committee on the Data Protection Bill, 2019.

16. Constitution of India, Art. 19.

17. Constitution of India, Art. 21.

18. (2017) 10 SCC 1.

19. (2019) 1 SCC 1.

20. Internet Freedom Foundation, “#StartfromScratch: Constitutional Utopias of Digital Protection”, <>.

21. Guidelines on Dark Patterns in Social Media Platform Interfaces: How to Recognise and Avoid them, European Data Protection Board, <>.

22. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Sushrut Arvind Dharmadhikari, J. allowed a petition which was filed seeking direction to the respondents to pay him the compensation for his illegal detention for almost four years in jail. 


Petitioner is a poor villager, an FIR was registered against him for the offence under Section 302 of the Penal Code, 1860 (IPC) and via judgment dated 14-03-2005 the petitioner was sentenced to rigorous imprisonment for life and fine. A criminal appeal was preferred by him aggrieved by the above conviction and sentence, Consequently, by the judgment dated 25-09-2006 Court modified the conviction and sentence of the petitioner opining that this was a case of culpable homicide not amounting to murder. Therefore, conviction of appellant under Section 302 of the IPC was set aside and he was convicted for the offence under Section 304 Part II IPC and sentenced to 5 years rigorous imprisonment and fine. 

The petitioner was to be released on 25-09-2009 but he was not released. Neither modified warrant, as required under Rule 315 of the Criminal Courts Rules and Orders was issued by the Court concerned for his release nor the jail authorities approached the Court in this regard. The petitioner was finally released after almost 3 years 11 months and 5 days of illegal detention on 02-06-2012. 


The counsel for the petitioner contended that the petitioner was , shattered by his prolonged  i11ega1 detention for no fault of his and it was submitted that there is no dispute or any doubt that the petitioner was detained illegally in prison for almost 3 years 11 months and 5 days even after his sentence was reduced.  


Counsel for the State opposed the prayer and contended that by virtue of Rule 315 (2) of the Criminal Courts Rules and Orders read with Rule 768 of the Jail Manual, issuance of super-session warrant/ release warrant upon reversal/modification of sentence in appeal is the responsibility of the Court to which the appellate judgment or order is certified under Section 425 of the Criminal Procedure Code, 1973. 


The Court consequently established that the petitioner remained in jail illegally for a period of 3 years 11 months 5 days which has resulted in violation of the fundamental right guaranteed under Article 21 of the Constitution of India i.e. protection of life and personal liberty. The Court also recalled the case of Pooran Singh v. State of M.P., 2009 SCC OnLine MP 176 wherein it was established that the defence of sovereign immunity is not available when the State or its officers, acting in the course of employment, infringe a person’s fundamental right of life and personal liberty as guaranteed by Article 21 of the Constitution of India and the State can be directed in a writ jurisdiction under Article 32 and 226 to repair the damage done to the victim by paying appropriate compensation.


The Court thus directed the State to pay him the compensation of Rs.3 lakhs within a period of 2 months keeping in mind the fact that the petitioner was kept in illegal detention for almost 4 years. The Court further directed the Registrar (Vigilance), Madhya Pradesh High Court, Jabalpur to immediately hold an inquiry and submit a report within a period of two months to the Registrar General as to why the modified warrant was not issued from the Court of First Additional Sessions Judge. 

[Inder Singh v. State of Madhya Pradesh, Writ Petition No. 13667 of 2013, decided on 21-07-2022] 

For petitioner: Arun Vishwakarma 

For respondent: Swaphil Ganguly, Praveen Hamdeo 

*Suchita Shukla, Editorial Assistant has reported this brief. 

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Rajan Roy and Jaspreet Singh, JJ. took suo motu cognizance of a PIL which was in relation with the Rights to Decent And Dignified Last Rites/Cremation.

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m. The Court had directed the Senior Registrar of this Court at Lucknow to register a suo motu Public Interest Litigation with the title “In Re : Right to decent and dignified last rites/cremation” and place it before the appropriate Bench having jurisdiction to hear Public Interest Litigations.

The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.

The State Government placed a Scheme/Standard Operating Procedure (‘SOP’) for cremation of dead bodies. The Court perused the SOP and suggested that:

1. The relevant communication made through E-mail or Whatsapp should be preserved for a reasonable period, of say, one year and, if during this period any legal proceeding before the Court of law or any other Forum are initiated in respect of the events mentioned therein, then, the same shall not be weeded out till disposal of such proceedings so as to avoid unnecessary complications and further litigation.

2. The disposal of bodies consequent to a pandemic is a separate issue which should be kept aloof from the Scheme under consideration which primarily relates to cremation of bodies generally and as a consequence of accidents or any crime, except to the extent if the cremation of such body consequent to an accident or crime is of a person who was affected by any such disease in connection with pandemic/ epidemic, then, the guidelines for cremation of such bodies as applicable during pandemic/epidemic would prevail over the scheme/SOP in question.

3. The Officers and employees under the State who are to be involved in cremation of such bodies should be sensitized and counselled to follow the scheme/SOP strictly and in a manner so as to achieve the object rather than to defeat it. The observance and adherence to the scheme/SOP should not be an eye-wash nor an empty formality. The letter and spirit of the scheme/SOP is paramount as it touches upon valuable constitutional and fundamental rights.

The State was directed to publicize the Scheme/SOP and ensure that it is adhered throughout the State of Uttar Pradesh. State has to make sure that the Scheme/SOP is spread wide across the Police Stations, Hospitals, Primary Health Centers, District Headquarters, Tehsil, Collectorate, etc. so that the Stakeholders are aware of these Scheme/SOP after being notified.

The State applauded the efforts of amicus curiae and officials of the State for coming up with such Scheme/SOP so that in future such disputes and complications do not arise.

[Suo-Moto Inre Right To Decent And Dignified Last Rites/Cremat v. State of U.P.,  2022 SCC OnLine All 527, decided on 05-08-2022]

Advocates who appeared in this case :

Abhinav Bhattacharya, Ajit Singh, Anjani Kumar Mishra, Ashish Kumar Agarwal, Atul K. Singh, Atul Kumar Singh, Digvijay Singh Yadav, Jaideep Narain Mathur (Ac, Nadeem Murtaza, Onkar Singh,Pradeep Kumar Singh, Seema Kushwaha, Sharad Bhatnagar, Advocates, Counsel for the Petitioner;

C.S.C.,A. S, G., Anurag Kumar Singh, Ashok Shukla, Dr. Ravi Kumar Mishra, Manjusha, Pranjal Krishna, Satyaveer Singh, Advocates, Counsel for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where the mother (‘applicant’) who is in judicial custody for an alleged grave offence seeks interim bail to get her child admitted in a school, Swarana Kanta Sharma, J. took suo motu cognizance and directed Delhi police to ensure admission of the child recognizing right to education as a fundamental right of the child. The bail application was thus directed to be withdrawn and a compliance report was sought regarding admission.

The present application was filed by the petitioner seeking interim bail for two weeks in FIR registered under sections 302/365/292/397/411/120-B/201 & 34 Penal Code, 1860 (‘IPC’) for alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain. The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11-07-2021. The application was preferred by the mother of the child on the grounds that she is concerned about the admission to a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted to any school.

It was brought to the attention of the court that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. Investigating Officer (IO) also verified the same stating that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.

The Court noted that once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. Thus, the child must get admitted in a school at the earliest so that the shadow of nothing unpleasant happening falls upon the child’s life to darken her future.

The Court further noted that in the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is the education of the child. Thus, court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year 2022-23.

The Court directed the SHO concerned to get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education and asked the principal of the school to extend full cooperation for the admission of the child. The compliance report is directed to be filed within 10 days.

[Kamini Arya v. State of NCT of Delhi, 2022 SCC OnLine Del 2367, decided on 03-08-2022]

Advocates who appeared in this case :

Ms. Anu Narula, Advocate, for the Petitioner;

Mr. Manoj Pant, APP for the State with Inspector Devendra Singh, P.S. Mohan Garden, Advocates, for the State.

*Arunima Bose, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUp

Allahabad High Court

SC and ST Act, 1989

Section 3 (2) (v) of SC and ST Act, 1989 only attracts by way of documentary evidence to prove that the injured belongs to SC or ST; Conviction and sentence, modified

The Division Bench of Kaushal Jayendra Thaker and Ajai Tyagi, JJ. while deciding an appeal which was filed challenging the judgment and order of convicting accused-appellant under Sections 326 of Penal Code, 1860 (‘IPC’) and Section 3 (2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’) observed that to prosecute a person for an offence committed under Section 3(2)(v) of the SC/ST Act, there must be evidence to show that the accused committed the crime knowing that such person/victim is a member of a Scheduled Caste or a Scheduled Tribe.

Read full report here


Irony and tragedy of the Indian republic that criminals like Mukhtar Ansari are the law-makers; Former UP MLA denied bail

Read full report here

Allahabad High Court pained to see minors getting involved in age- inappropriate relations; Grants bail in the interest of infant and minor wife

Read full report here

High Court can grant transit anticipatory bail in a case registered outside its jurisdiction

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Steps must be taken to break unholy nexus between criminal politicians and bureaucrats; Bail denied to BSP MP

Read full report here

Parity can only be persuasive in nature and cannot be binding; Bail orders not to be given without assigning any reasons

Read full report here

Protection of life and liberty

Constitution of India does not permit to issue mandamus when there is no threat perception alleged or transpired; Petition dismissed for filing with a purpose of obtaining seal of this Court on illegal relationship

Read full report here

Manual Scavenging

No protective gears provided to the sanitation workers; DM and Nagar Ayukt, summoned

Read full report here

Stray Dog Menace

Allahabad High Court issues notice to Nagar Nigam on compensation to family after stray dog menace leaves one child dead and other seriously injured

Read full report here

Quashing of FIR

Sections 4 & 5 CrPC only applicable to proceedings under Special Acts; not when criminal jurisdiction is invoked

Read full report here

Bombay High Court

Doctrine of Proportionality

When assessing the doctrine of proportionality, one looks not only at the immediate cause inviting punishment but also at the entire context; Appeal dismissed

Read full report here


Registrar entitled to determine the registered proprietor of the Trademark [ISKCON v. ISKCON]

The Division Bench of G.S. Patel and Gauri Godse, JJ. disposed of an appeal which was preferred by ISKCON (International Society for Krishna Consciousness) Bengaluru aggrieved by the observations that this well-known trademark (ISKCON) is exclusively associated with the original Plaintiff (“Mumbai ISKCON”) and, by necessary implication, that Mumbai ISKCON is sole and exclusive registered proprietor of the mark in International Society for Krishna Consciousness v. Iskcon Appaeral Pvt. Ltd., 2020 SCC OnLine Bom 729.

Read full report here


Courts cannot be hyper technical in their approach when it comes to petitions under S. 125, CrPC; son liable to maintain father

Vibha Kankanwadi, J. partly allowed a writ petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class further modifying the maintenance amount to Rs 3000/- per month.

Read full report here

Corporate Law

Independent Non-Executive Director not liable for acts of company when not involved in day-to-day business

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Women Rights

Woman cannot be made to choose between career and child; Bombay High Court allows mother to relocate to another country with the child

Read full report here


Yes Bank-Dish TV Case: Beneficial Owner of pledged shares, contractually entitled to all rights, including voting rights in Annual General Meeting

Read full report here

Right to reproductive choice

Minor sexual assault victim lodged in observation home for murder allowed to terminate pregnancy

Read full report here


Slow pace of trial defeating the very purpose of POCSO Act; Court of Sessions to submit report of pending cases, number of Special Courts

Read full report here

Employee’s State Insurance Act

Nature of activities conducted by BCCI are commercial in nature, liable to pay employees contribution under ESI Act, 1948

Bharati Dangre, J. dismissed an appeal which was filed by Board of Control for Cricket of India (‘BCCI’), being aggrieved by the impugned judgment and order passed by the Employees Insurance Court at Bombay (ESI Court) dated 09-09-2021 where BCCI was held to be under the ambit of Employees’ State Insurance Act, 1948.

Read full report here

Calcutta High Court

Driving license

ACP, Traffic Department does not have the power to suspend the licence; directions issued to release driving licence

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Transfer of suit

Calcutta High Court transfers Matrimonial suit showing leniency towards wife

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Fundamental Duty

Fundamental duty to protect animals from cruelty; Directions issued to SP for finding out stolen pig from Court premises

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Noise Pollution

Vigil to be maintained to prevent noise pollution in general; Sound levels to be within permissible limits

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Chhattisgarh High Court


Chhattisgarh High Court entitles father-in-law to pay maintenance; “Estate of the husband can be preferred to claim over the estate of father or mother of daughter in law”

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Delhi High Court

Default in payment

Delhi High Court upholds Trial Court ruling in application filed under O. XIII A CPC for default in payment of rent by tenant due to COVID

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Gems or James Bond; Delhi High Court directs compensation to Cadbury against trademark infringement by Neeraj Food Products

Prathiba Singh, J. permanently injuncts Neeraj Food Products (‘defendants’) for trading JAMES BOND a chocolate product in pillow packs which is deceptively similar with Mondelez India Foods Private Limited (formerly Cadbury India Ltd.) (‘plaintiff’) GEMS, the name of which has derived inspiration from a copyrighted artistic character GEMS BOND. The Court thus directed the compensation upto 15 lakhs to Cadbury India finding deceptive similarity in the product under challenge.

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Delhi High Court refuses blanket injunction against GODADDY from registering SNAPDEAL trademark; Every infringement must be petitioned separately

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Delhi High Court grants permanent injunction against Facebake or Facecake from using the well known trademark Facebook

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Commercial Courts (Amendment) Act, 2018

‘Thin line between adjudication and legislation’; Delhi High Court rules out retrospective application of Commercial Courts (Amendment) Act, 2018

A Division Bench of Satish Chandra Sharma, CJ and Subramonium Prasad, J. refused to transfer the civil suits pending before the Additional District Judge, Patiala House Courts, New Delhi, to the designated Commercial Court as the Commercial Courts (Amendment) Act, 2018 (‘Amending Act’) shall not apply retrospectively and thus, the advantage provided under Section 19 of the Amending Act cannot be taken, as dispute relates before to the date of commencement of the Act, i.e., 03-05-2018.

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Once two adults’ consent to live together as husband and wife, no third-party interference including family is warranted; Directs SHO to provide mobile number

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Defense of consensual sexual intercourse immaterial if victim is minor; Bail rejected

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Delhi High Court grants Bail to a rape accused in view of the prosecutrix’s deposition as per the requisites of S. 164 CrPC

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Service Charge

Delhi High Court stays CCPA ruling on levying service charges in hotels and restaurants as an unfair trade practice

Yashwant Varma, J. stayed the ruling passed in the form of guidelines by the Central Consumer Protection Authority (‘CCPA’) vide order dated 04-07-2022 holding that the issue of whether the levy of service charge would amount to a restricted and unfair trade practice under Consumer Protection Act, 2019 requires consideration in view of precedents and incidental facts of the subject matter.

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Delhi High Court’s ruling that led to Supreme Court recognizing unmarried women’s right to a safe abortion

A Division Bench of Sathish Chandra Sharma, CJ and Subramonium Prasad, J refused termination of pregnancy to an unmarried woman whose pregnancy arose out of a consensual relationship after holding that her case was clearly not covered by any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 as on the date of the judgment.

This order, however, stands modified by the Supreme Court vide order dated 21-07-2022 wherein it has been held that woman cannot be denied right to safe abortion only on the ground of her being unmarried.

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Prevention of Money Laundering Act, 2002

Mere allocation of coal does not amount to ‘proceeds of crime’ u/S 2(1) (u) of PMLA, 2002; Proof of monetary gains wrongfully obtained from such allocation is mandatory

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Delhi High Court emphasizes on the importance of husband’s/father’s obligation towards estranged wife/child; Upholds maintenance decree granted by Family Court

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Delhi High Court directs Telegram and Mega to immediately take down any illegal content uploaded on their platform relating to DocTutorials

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Misleading advertisement

Delhi High Court grants ad interim injunction against Dabur India for openly disparaging Nihar Naturals Shanti Amla Oil by WhatsApp message

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Can examination authorities deny permission for appearance in a competitive exam for violating clothing guidelines? Delhi High Court answers

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Non-consideration of the grounds raised in a pre-grant opposition while granting patent per se constitutes violation of principles of natural justice

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Central Civil Services (Pension) Rules, 1972

Delhi High Court allows mercy petition filed by widow of a deceased/dismissed employee seeking ‘compassionate allowance’ in view of R. 41 of CCS (Pension) Rules, 1972

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Broadcasting rights

Delhi High Court restrains infringement of broadcasting rights of ‘Sony Ten Network’; Interim directions issued

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Gujarat High Court


Gujarat High Court denies bail to a 66 year old over recovery of poppy straw in commercial quantity from his property

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Delay in appointment of presiding officer of DRT leading to deprivation of legitimate right to speedy justice; Directions issued

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Municipality has power to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months notice

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Gauhati High Court


Facebook post “only an expression of her feelings”, does not mention ULFA-I; College Student gets bail

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Preferential Appointment

‘Cousin’ not a family member; cannot be considered for Preferential Appointment under Assam Public Services (Preferential Appointment) Rules, 1999

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State cannot force subordinate officers to retire prematurely on low physical fitness without following procedure under Assam Rifle Rues, 2010

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Representation of People Act

‘High-time to revisit S.126 of Representation of People Act’ ; Gauhati High Court dismisses proceedings against Assam CM for violating Model Code of Conduct

Rumi Kumari Phookan J. dismissed the criminal proceedings against Chief Minister of Assam, Dr. Himanta Biswa Sarma for violating the provision of the Model Code of Conduct during 2019 General Assembly Elections. The Court was further of the view that the provision mentioned under Section 126 of the Representation of the People Act, 1951 (RP Act) should be reexamined in the light of multi-phased elections and the expansion of digital and electronic media.

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Jammu and Kashmir and Ladakh High Court

S. 80 Civil Procedure Code, 1908

When can Courts dispense off with the requirement of notice u/s. 80, CPC? J&K and Ladakh HC elucidate

While deciding the instant appeal wherein substantial questions of law were raised vis-a-vis SectionS 80CPC; the Single Judge Bench of Vinod Chatterji Koul, J., held that the language of Section 80 is very clear in stating that at the time of filing a suit, if the plaintiff can establish that there is an urgency to seek relief, then the Court on its satisfaction, may dispense off with the requirement of notice before filing a suit under Section 80.

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Article 14 and 16, Constitution of India

Classification on the basis of educational qualification for the purposes of promotion, is permissible in law and does not offend the Constitution

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Double Jeopardy

Whether concurrent prosecutions under S. 138, NI Act and S. 420, IPC, will amount to double jeopardy? J&K and Ladakh HC analyses

While deciding the instant petitions, the question that came up before that Court was whether a person can be prosecuted for offence under Section 420 of IPC as also for offence under Section 138 of NI Act, on the same set of facts and whether or not it would amount to double jeopardy. The single Judge Bench of Sanjay Dhar, J., observed that the offences under Section 138NI act and Section 420IPC, are two distinct offences, therefore the principle of double jeopardy or rule of estoppel does not come into play.

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Administration of justice

For proper administration of justice, Judges should not make derogatory remarks against persons, unless such censuring is necessary for the case

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Hyderpora Encounter Case

J&K and Ladakh HC allows the family of deceased Amir Magrey to perform Fatiha Khawani; upholds compensation awarded by the Single Judge Bench

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Vacancy and appointment

Can waitlist candidates be considered for filling up vacancies caused by resignation of the selected/appointed candidates? J&K and Ladakh HC answers

On the issue of whether wait list candidates can be considered for filling up vacancies caused due to resignation of appointed candidates, the Division Bench of Pankaj Mithal, CJ., and Moksha Khajuria Kazmi, J., observed that “a select/waiting list prepared may remain operative and valid for a period of one year, but that would only be for a limited purpose of appointing the selected/wait list candidates on the vacancies which remains unfilled due to non-joining of the selected candidate for one reason or the other.”

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Jharkhand High Court


Date of application or Date of death — From when is the monetary compensation on account of death of an employee to be paid?

S.N. Pathak, J., allowed the writ petition directing Central Coalfields Limited (‘CCL’) to modify the monetary compensation in case of death or an employee who died in harness, calculating it from date of death of the husband of the petitioner.

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Dowry death

Upheld the decision of trial court; Accused convicted for dowry death

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Corporate law

Criminal proceedings against Directors cannot continue when the Company has not been arrayed as a party

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Karnataka High Court


‘S.I.R cannot be generated at the drop of a hat’; Karnataka High Court quashes corruption proceedings initiated by ACB under Prevention of Corruption Act, 1988

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Bail matter highlights “corruption” in Anti-Corruption Bureau; Karnataka HC judge alleges transfer threat for his observations against ACB and ADGP

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Able bodied person having the ability to earn is not entitled to seek permanent alimony from wife; Karnataka High Court dismisses appeal

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Foreign Exchange Management Act, 1999

Writ petition by XIAOMI India premature when alternate remedy available under S. 37 FEMA, 1999 left unattended

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No suppression of material facts if show cause notice issued is based on balance sheet; Appeal denied

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Karnataka High Court grants compensation to a law student who was arrested and handcuffed

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Kerala High Court

Citizenship and Marriage

Diplomatic officers empowered to apostille affidavits and do notarial acts; Indo-Canadian couple allowed to get married “online”

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Sexual Assault

Kerala High Court upholds conviction of a father for sexually assaulting his minor daughter

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Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide

While adjudicating a question of law as to whether pre-arrest bail can be granted to an accused while he is sitting abroad, P.V. Kunhikrishnan, J., doubted the findings of Single Judge in Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158. Answering the question of law in negative the Court stated,

“If an accused in a case leaves India after knowing that a case with grievous offences is registered against him and files a bail application before the High Court while sitting abroad, he is not entitled to an order not to arrest especially when there is no such power under Section 438 CrPC.”

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Birth certificate

Can Court direct to retrospectively amend birth certificate to expunge father’s name by replacing mother’s name as an only parent? Kerala HC decides

In a significant decision P. V. Kunhikrishnan, J., directed the Registrar of Births and Deaths to expunge the father’s name of the petitioner 1 from his birth certificate and issue a new certificate showing the name of his mother only as a single parent.

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Received a wrong product while shopping online? Read how Kerala HC addresses grievance of person who received wrong laptop from Flipkart

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Madhya Prdaesh High Court

DNA Test

‘Violation of individual privacy’; Request for DNA test denied in property dispute

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When does a Will becomes a suspicious document? Madhya Pradesh High Court answers

Dwarka Dhish Bansal, J., while dismissing a second appeal held that in presence of prior execution of agreement of Gift, the Will becomes a suspicious document.

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Highway guidelines

Major District Road (MDR) not subjected to 300 metres guidelines, since it is not a National or a State Highway; NOC for petrol pump granted

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Compassionate appointment

Substitution of an appointment on compassionate grounds through contractual appointment held illegal; directions issued

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Police carelessness

Madhya Pradesh High Court lambasts police force for blatant callousness and failure in tracing an 11-year-old missing minor girl

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Compulsory retirement

Irregular grant of bail may reflect upon competency of the Judge but does not mean that he is corrupt; Compulsory retirement set aside

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Madras High Court


Madras High Court directs State Government to include photographs of PM and President in print/electronic media for International Chess Olympiad

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Madras High Court directs State Police to alter FIR and add Ss. 417 and 420 IPC on alleged concealment of impotency by husband pre-marriage

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Freedom fighters’ pension cannot be taken as ‘income’ to deny family pension; Objective of Freedom Fighter Pension Scheme is to honour the sacrifices of the fighters

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Termination of pregnancy

Madras High Court allows termination of 27+weeks pregnancy of minor child victim of 13 years; Foetus to be preserved for criminal case under POCSO

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Proper reasons to be given for rejecting GST Registration Applications; Just writing ‘rejected’ would not suffice

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High Court cannot be an expert body for the purpose of forming an opinion on equivalence of degrees; Madras High Court upheld the Government Order

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Suspecting the character of spouse and making false allegations of extra marital affair in presence of colleagues/ students amount to mental cruelty; Madras High Court grants divorce

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Professional misconduct

Madras High Court deprecates the practice of implicating Advocates as accused along with their clients for offences allegedly committed by clients

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Can plea of poor internet connectivity be entertained if it deprives a student of his entitlement to take admission? Madras High Court directs State to compensate

G R Swaminathan J. directed the State to pay compensation of Rs 1 Lakh to a student who could not take admission in the medical course in the academic year 2021-2022 as he was unable to register his name on the portal for NEET counseling even after obtaining marks beyond cut off limit, due to poor internet connectivity.

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Old age homes

Madras High Court exercises parens patriae jurisdiction to deal with the issue of senior citizen welfare and old age homes; Guidelines issued

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Transgender rights

Madras High Court remarks transgenders are already part of most backward classes; Dismisses plea seeking separate reservations for them in government jobs

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Marriage of inter-faiths

Self-respect marriages can be performed only between two Hindus; Madras High Court upholds denial of marriage registration of an inter faith couple

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Patna High Court

Sexual Assault

Sexual assault on minors traumatic, destroys personality: Patna High Courts upholds father’s conviction for raping his minor daughters for 6 years

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Right to chose a life partner

Women have right to marry anyone of choice; Family/Societal Recognition not required under law

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Punjab and Haryana High Court


Co-owners of the joint property cannot prevent each other from using the property; appeal dismissed

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Motor accident

Motor Accident claims must be proved on the touchstone of preponderance of probabilities

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Punjab and Haryana High Court dismisses the order of the Magistrate; Only Juvenile Justice Board to pass orders where there is ‘Juvenile in conflict with law’

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‘Parole a part of reformative process’; Punjab and Haryana High Court grants parole to murder convict

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Non-compoundable offences

Proceedings in non-compoundable offences can be quashed on the basis of compromise between accused and victim

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Relief to actress Kangna Ranaut in ‘Shaheen Bagh Dadi’ defamation case; Trial Court directed to adjourn the matter

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Mental cruelty

Does incessantly filing complaints for tarnishing one’s reputation amount to mental cruelty? Punjab & Haryana High Court answers

While deciding an appeal arising from a divorce petition, the bench of Ritu Bahri, J. and Meenakshi I. Mehta, J. observed that “the facts and circumstances unequivocally speak volumes of the fact that the respondent has incessantly been filing the complaints against the petitioner as well as his family members and the petitioner even had to go behind the bars in connection with one of those complaints, resulting in harm/damage to his image and reputation in the eyes of their relatives and the society at large”.

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Rajasthan High Court

Illegal termination

Alleged illegal termination from Kotak Mahindra Bank pending for relief due to vacancy of competent authority; State appoints Deputy Labour Commissioner

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Order XVI R 1 and 2 Civil Procedure Code, 1908

Trial Court required to prima-facie ascertain the relevancy of the proposed witnesses while deciding application under Order XVI R 1 and 2 CPC

Dinesh Mehta, J. considered the stamp vendor and Sub Registrar as relevant witnesses in a case where registration of relinquishment deed was challenged, and it was pleaded to summon them as witnesses for ascertaining the claim. The Court stated that ascertaining the relevancy of the proposed witnesses while deciding application under Order XVI Rules 1 and 2Civil Procedure Code (‘CPC’) is to be prima facie established by the Trial Court.

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No award can be remitted to the arbitrator where there are no findings in the contentious issues of the award

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Telangana High Court

Employees Compensation Act, 1923

Whether the workwoman employed in Beedi manufacturing process is covered under the purview of Employees’ Compensation Act? Telangana High Court answers

M Laxman, J. allowed the appeal and remanded the matter for adjudication on merits and held that the deceased beedi worker falls under the definition of ‘workman’ as per Section 2(n)(ii) and Clause 2 of Schedule II of Employees’ Compensation Act, 1923 as well as Section 2(k) of Factories Act, 1948.

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Tripura High Court


It is not within the domain of the Court to direct the State- Government to create any post; Petition dismissed

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Uttaranchal High Court

Article 21, Constitution of India

Whether writ petition on cancellation of GST Registration affecting the Right to Livelihood is maintainable? Uttaranchal High Court answers

The division bench of Sanjaya Kumar Mishra, acting C.J., Ramesh Chandra Khulbe, J., held in the writ petition is maintainable, as the cancellation of GST registration affects the rights of livelihood enshrined under Article 21 of the Constitution of India.

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Animal slaughter

Uttaranchal High Court allows stay on Government order banning animal slaughter on the occasion of Bakra Eid in Manglaur

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*Suchita Shukla, has put this report together.

Op EdsOP. ED.



In February 2014, a two-Judge Bench of the Supreme Court in Aveek Sarkar v. State of W.B.3 ruled that the nude photograph of Boris Becker with his fiancée cannot be termed as obscene under Section 292 of the Penal Code4. The judgment has been hailed as a landmark judgment because the Court in this case discarded Hicklin test and decided to adopt the community standard test to determine whether a particular thing is obscene or not.

This was a welcome ruling because by this we finally got rid of the archaic Hicklin test which was propounded way back in 1868 in R v. Hicklin.5 The Supreme Court has now decided to adopt the community standard test which has been laid down by the US Supreme Court in Roth v. United States of America.6 However, it is pertinent to note that the American Supreme Court was forced to modify the community standard test because of its subjective nature. Hence, it can be said that even the current judgment has many flaws which need to be rectified in the due course of time.

Development of obscenity laws in United Kingdom, India and United States of America

Professor Laurence H. Tribe in his book Invisible Constitution has rightly argued that “when we ask questions, the kind of answers we actually get, depends to some degree who is answering them, including who is sitting on the side of Supreme Court”.7 The development of obscenity laws across various jurisdictions vindicates Laurence Tribe's remark without an iota of doubt. Different regimes and courts have attempted to define this term with their own set of societal understanding. The era of Victorian conservatism in England lead to evolution of the Hicklin test whereas a century later American Supreme Court took an altogether different approach and ruled that, one man's vulgarity is another's lyric.8

United Kingdom

History of obscenity legislation in Great Britain starts with King George III's proclamation of 1787, wherein he proclaimed that “his subjects must suppress all loose and licentious prints, books, and publications, dispensing poison to the minds of young and unwary, and he sought to punish the publishers and vendors of such publications”.9 Prior to the issuance of this proclamation obscenity was considered harmful only in those cases wherein it gave rise to breach of peace or it insulted religion.

Till 1857 any specific law concerning obscenity was not in place. However, there was a body of law enacted in various statues which sought to regulate obscenity in England. It was in 1857 when at the insistence of Chief Justice John Campbell British Parliament passed the Obscene Publications Act, 1857 (hereinafter referred as “the 1857 Act”), which authorised the Magistrates to find and destroy any obscene material.10

After the passing of 1857 Act, it was only in 1868 wherein in R. v. Hicklin11, the Queen's Bench was seized with a matter arising out of the newly passed 1857 Act. The question which posed before the Court was that whether a pamphlet entitled “The confessional unmasked” was obscene or not? Writing for the Court, Alexander Cockburn, C.J. laid down an authoritative definition and an authoritative test for obscenity under English Law. The Chief justice wrote that “the test for obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”.

The test laid down by the Queen's Bench12 had six constituent elements:

  1. Tendency to deprave and corrupt: The matter published had to have the tendency to “deprave and corrupt”, or to suggest to readers “thoughts of most impure and libidinous character”. However, the meaning of these terms was not clear as to what it suggests.13

  2. Not the reasonable person: The Court while deciding the question of obscenity was to judge the matter from the standpoint of a reasonable person, especially those whose minds are open to such immoral influences. As per Cockburn, C.J. reasonable person may include children or elder person i.e. person of more advanced years.14

  3. Presumed intent: While deciding the question of obscenity, purity of motive is no excuse for publication of indecent matter, neither the court had to look into the tacit or altruistic intent of the author. The question of obscenity was to be judged merely upon the selection of words by the author.15

  4. Irrelevance of contemporary books: The published work had to be judged on its own merits and it was not permissible for the court to look at other books which were in circulation at that time.16

  5. Accessibility: Circumstances of the publication in question becomes a relevant consideration and the court was to look into the accessibility of the publication. Thus, a medical treatise with illustration necessary for information of students or practitioners may not be treated as obscene, because it was intended to reach only to the limited audience though it might be indictable if exhibited in a shop window for every passer-by to see.17

  6. Work as a whole irrelevant: As per this test it was not the whole work or the theme which was to be looked into while deciding the question of obscenity, rather the presence of a single isolated paragraph may make the whole work obscene.18

However, the test laid down in R. v. Hicklin19 got partially modified by the Obscene Publications Act, 1959 which sought to replace the previous 1857 Act. The 1959 Act introduced provided some safeguards to the authors wherein the author cannot be charged for obscenity if he successfully proves that the publication in question is being justified as being for the public good on the ground that it is in the interest of science, art, literature or of other subjects of general concern.20 However due to some deficiency is the 1959 Act, British Parliament passed an amendment in the year 1964 to cure the deficiencies in order to strengthen the law against publishing obscene matters.

Section 1(1) of the Act took a shift from the traditional criminal liability and the issue of crime causation, or the motive of author has become immaterial. The present law as it stands today says “an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.21

Encompassing the principles of modern criminal liability, the essence of the offence is not the motive of the writer or the purpose of writing, but its tendency or the necessary effect to deprave and corrupt.22


If we read the history of colonial laws concerning the freedom of speech, we will find that the law of obscenity and sedition traces their origin in English Law of libel, but irrespective of their common law origin, there was a difference in its implementation. The law of sedition under the Penal Code23 was framed and implemented in such a manner which was considerably different from its English counterpart. However, the same was not the case with obscenity. The law concerning obscenity was modelled on similar lines as that in Britain.24

As it has been earlier mentioned that before the passing of 1857 Act, there was a body of law in England dealing with obscenity, but in India there was a complete void till 1856, when the then Governor General for the first time gave his assent to “An Act to Prevent the Sale or Exposure of Obscene Books and Pictures.”25 Modelled on the lines of English Town Police Clauses Act, 1847, the Act criminalised the distribution, sale, offer for sale, or wilful exhibition of any book, paper, print or representation in any shop, bazaar, street, thoroughfare, high road, or other such places of public resort.26

It is pertinent to note that the original draft of Penal Code prepared by Lord Macaulay nowhere mentions about a single provision regarding obscenity, except for a provision that penalised the outraging of the modesty of the woman by any sound or gesture.27 Section 292 was introduced in Penal Code by the Obscene Publications Act, 1925 (8 of 1925), in order to give effect to Article I of the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, which was signed by India in Geneva in 1925.28

Section 292(2) of the Penal Code penalises the sale, hire, distribution, exhibition, or circulation of any matter as mentioned under Section 292(1) of the Code. Section 292(1) of the Penal Code states that:

292. (1). … a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.29

However, it is pertinent to note that even after the enactment of the Penal Code, Hicklin test remained applicable with little modifications in deciding the question of obscenity both in colonial India as well as in independent India. Although few High Courts refused to accept the opinion of Cockburn, C.J. which stated that obscenity must be judged from the standpoint of immature persons, young and old, or from the perspective of those whose minds are open to immoral influences. But, apart from this the other limb of the Hicklin test was adopted by the High Courts in Colonial India.

Soon after the enactment of Constitution of India, the newly established Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra30 was asked to decide a matter pertaining to obscenity. In this case, Ranjit Udeshi who was a partner in a firm which owned a book stall in the City of Bombay. He was prosecuted under Section 292 of the Penal Code for selling and possessing the copies of D.H. Lawrence's classic text Lady Chatterley's Lover. Due to the titillating content, this book was considered as an obscene text under the Indian obscenity law. As a result, Ranjit Udeshi was convicted to pay a fine of 20 rupees or to suffer one week's simple imprisonment. The petitioner decided to challenge the constitutionality of Section 292 of the Penal Code.

In this case, Hidayatullah, J. adopted a modified version of Hicklin test. Writing the judgment for the Court, Hidayatullah, J. ruled three major modifications in the Hicklin test. The three major departures from the English Hicklin test were:

  1. Presence of sex and nudity in art and literature cannot be considered as the evidence of obscenity. Something more was required. Sex by itself was not enough to deprave and corrupt.31

  2. The work needs to be judged as a whole, and at the same time obscene words or passages had to be weighed against the non-obscene portions of the work, and it needs to be looked that whether non-obscene portion of the work were so preponderating as to throw the obscenity into shadow, or the obscenity is so trivial and insignificant that it can have no effect and may be overlooked.32

  3. Third departure from the test was in the form of defence to the offence of obscenity, if the publication in question was for the public good.33

The Penal Code was amended in the year 1969. Under the amended law the court was supposed to consider the work as a whole. The law inserted a “public good” exception which was also adopted by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra34.35

In Samaresh Bose v. Amal Mitra36, the Court was asked to decide that whether the Bengali novel Prajapati is obscene or not, as the novel depicted sexual encounters and used vulgar language. The trial court held the matter as being obscene. However, the Supreme Court disagreeing with the trial court finding observed that:

…the concept of obscenity is moulded to a great extent by the people who are expected to read the book. It differs from country to country, depending upon the standards of morality. Even the outlook of a Judge may differ from another Judge as it is a matter of objective assessment of the subjective attitude of the Judge hearing the matter.37

The Court further ruled that vulgarity and obscenity need not be confused with each other.38

Till 2014, the Supreme Court and the High Courts of our country followed the Hicklin test. However, in the year 2014, the Supreme Court in Aveek Sarkar v. State of W.B.39 formally abandoned the Hicklin test. In this case the Court was to decide that whether a semi-nude photograph of the iconic German tennis player with his dark-skinned fiancée was obscene or not. The photograph was first published in a German magazine, and then it was carried by Sportsworld and Anandabazar Patrika. The Court held that “a picture of a nude/semi-nude woman by itself could not be called obscene, unless it had the tendency to arouse the feeling of an overt sexual desire”.40 The Court placed more reliance upon the context in which the photograph appeared, and the message sought to be conveyed and found that it conveyed an important message to eradicate racism and apartheid in society.

The United States of America

In the United States of America, only “hardcore pornography” is considered as obscene under the First Amendment. However, the same was not always the case. In the year 1954, the American Supreme Court in Roth v. United States of America41 held that “sex and obscenity were not synonymous, and that if there was sex in art, literature or scientific works, that was not sufficient reason to deny the material the constitutional protection of free speech”.

The Court in this case further ruled that:

the material in question will be considered obscene if to the average person (not necessarily the reasonable person), applying contemporary community standards (not national or State standards) the dominant theme of the work taken as a whole, appeals to prurient interest (i.e. material having a tendency to excite lustful thoughts).42

However, the scope of the community standard test which was propounded in Roth case43 was subsequently restricted in Nico Jacobellis v. State of Ohio.44 The Court in this case ruled that the community standard test was limited only to hardcore pornography.

Eventually in 1974, the American Supreme Court in Marvin Miller v. State of California45 laid down a threefold test to determine whether something was obscene or not. Burger, C.J. wrote the majority opinion in which he laid the following guidelines:

(a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The contemporary community standard test laid down in Miller case46 required courts to determine whether something is obscene or not from the standpoint of the local community in which the trial takes place. This in the opinion of the researchers is quite a problematic ruling because the test is full of subjectivity. Something which is obscene for one cannot be obscene for all. In a heterogenous society it becomes even more difficult to determine or lay down a fixed community standard. Douglas, J. in a strong dissent has rightly ruled that “obscenity cannot be defined with precision. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a nation dedicated to fair trials and due process”.47 Douglas, J. reiterated this opinion in Paris Adult Theatre I v. Lewis R. Slaton48 that the contemporary community standard test is full of subjectivity and hence, it should be discarded. However, unfortunately the test laid in Miller case49 continues to hold the field.

However, there are a few exceptions to the contemporary community standard test as laid down in Miller case50. The first exception being that even those materials which will not be considered as obscene under Miller test can be regulated under some conditions. The American Supreme Court has upheld many laws which imposed time, place, or manner restrictions on sexually explicit but non-obscene speech.51

Secondly, the American Supreme Court has also ruled that mere possession of hardcore pornography cannot be considered as a crime because it violates right to privacy.52 Furthermore, the Miller Standard test does not apply in those cases wherein children are involved either as actors or consumers. The Court in Sam Ginsberg v. State of New York53 upheld a statute which made it a crime to sell sexually explicit non-obscene materials to minors. It is also pertinent to note that even possession of child pornography is considered as a crime and the accused cannot take the plea of right to privacy.54

Harm based test: A better alternative

The Canadian Supreme Court and the South African Constitutional Court have laid down the harm-based test to determine whether something is obscene or not. In Butler v. R.55, the Canadian Supreme Court classified obscene material into three categories. First are those that depict explicit sex with violence. The second is explicit sex without violence but subjects' participants to treatment that is degrading and dehumanising. Third being explicit sex without violence that is neither degrading nor dehumanising.

The Court further ruled that:

The first two categories of material can justifiably be outlawed and the same is also constitutionally permissible as well. The main objective of censoring such kind of material is not to preserve morals, but to protect the community from harm.56

The Constitutional Court of South Africa in De Reuck v. DPP57 upheld the constitutionality of the provision of a statute which criminalised the creation, distribution or possession of child pornography. The Court ruled that objectification and sexualisation of children violate their right to dignity. Hence, the law is constitutionally protected.58

A combined reading of both the judgments leads to the creation of harm-based test which understands harm in the context of protecting established constitutional values such as dignity and equality. This in the opinion of the researchers is a better test to regulate obscenity than the community standard test.

Conclusion and suggestions

“Freedom of expression … is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb the State or any sector of the population.” — Handyside v. United Kingdom59

If we look into the jurisprudence on obscenity laws, we will find that the Anglo-American approach is public morality based. On the other hand, the Canadian South-African approach is a harm-based approach. If we look into the Indian position on obscenity laws, we will find that it is mostly inspired by the Anglo-American approach. However, the Anglo-American approach suffers from the problem of subjectivity. Furthermore, it not only makes our obscenity law vague, but it also makes the fundamental rights of the citizens subservient to public morality.

Hence, the researchers believe that the Indian Supreme Court should discard the Anglo-American approach. Rather the Supreme Court should adopt the Canadian South-African approach which understands harm in the context of protecting established constitutional values such as dignity and equality.

Furthermore, the researchers believe that the morality clause as mentioned in Article 19(2) of the Indian Constitution60 neither depicts public morality or individual morality, rather it depicts constitutional morality. Hence only those works must be regulated which violates constitutional morality.

Now the question arises is what comes under the ambit of constitutional morality? Legal scholar Gautam Bhatia in his bookhasrightly argued that the most important aspect of constitutional morality is the right to equality.61 The author in his book has further contended that if we look into the Indian Constitution, we will find that there are many articles which ensure equality in Indian society (Articles 15-1862). Thus, a combined reading of all the articles lead to the creation of principle of anti-subordination: a concept which would end all sorts of discrimination existing in society. The same can also be applied in sexual content. If the content of the material results in any form of subordination, then the material is not constitutionally protected.63

For instance, in the case of pornographic films, scholars like MacKinnon and Andrea Dworkin have rightly argued that constructing a social reality of dominance and submission in a pornographic movie, does not merely depict subordination, but actually subordinates women. The content should not be viewed as a representation of reality but is a reality itself. Thus, such content needs to be regulated.64

Hence, the researchers believe that by applying the harm-based test, principle of anti-subordination and by interpreting morality under Article 19 as constitutional morality, we will be able to ensure that the law on obscenity is not used by the authorities to establish and then police norms of civility and behaviour, rather it is used by the authorities to restrict speech which is in violation of constitutional morality and Constitution.

* LLM, NLIU, Bhopal. Author can be reached at

** LLM, CUSB, Gaya. Author can be reached at

3. (2014) 4 SCC 257.

4. Penal Code, 1860, S. 292.

5. R. v. Hicklin, (1868) LR 3 QB 360.

6. 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957).

7. Laurence H. Tribe, The Invisible Constitution (1st Edn., 2008) p. 2.

8. Cohen v. State of California, 1971 SCC OnLine US SC 119 : 29 LEd2d 284 : 403 US 15 (1971).

9. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India, (1st Edn., 2017) p. 109.

10. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India, (1st Edn., 2017) p. 109.

11. (1868) LR 3 QB 360.

12. R. v. Hicklin, (1868) LR 3 QB 360.

13. R. v. Hicklin, (1868) LR 3 QB 360, 371.

14. R. v. Hicklin, (1868) LR 3 QB 360.

15. R. v. Hicklin, (1868) LR 3 QB 360.

16. R. v. Hicklin, (1868) LR 3 QB 360.

17. R. v. Hicklin, (1868) LR 3 QB 360. See also, Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India, (1st Edn., 2017) p. 113.

18. R. v. Hicklin, (1868) LR 3 QB 360. See also, Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 114.

19. (1868) LR 3 QB 360.

20. Obscene Publication Act, 1959, S. 13 (UK).

21. Obscene Publications Act, 1959, S. 1(1) (UK).

22. Durga Das Basu, Commentary on Constitution of India, Vol. 4 (9th Edn., 2014) p. 3784.

23. Penal Code, 1860.

24. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 108.

25. Mohit Kandpal, “Evolution of Obscenity from the Victorian Era to the Republic of India”, The NUJS Society for Advancement of Criminal Justice (5-1-2022), <>.

26. Mohit Kandpal, “Evolution of Obscenity from the Victorian Era to the Republic of India”, The NUJS Society for Advancement of Criminal Justice (5-1-2022), <>.

27. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 110.

28. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 110.

29. Penal Code, 1860, S. 292(1).

30. AIR 1965 SC 881.

31. Ranjit D. Udeshi v. State of Maharastra, AIR 1965 SC 881.

32. Ranjit D. Udeshi v. State of Maharastra, AIR 1965 SC 881, para 21.

33. Ranjit D. Udeshi v. State of Maharastra, AIR 1965 SC 881.

34. AIR 1965 SC 881.

35. Criminal and Election Laws Amendment Act, 1969.

36. (1985) 4 SCC 289.

37. Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, 313-314, para 29.

38. Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, para 35.

39. (2014) 4 SCC 257.

40. Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, para 23.

41. 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957), para 15.

42. Roth v. United States of America, 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957).

43. 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957).

44. 1964 SCC OnLine US SC 156 : 12 L Ed 2d 793 : 378 US 184 (1964).

45. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973), para 17.

46. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973).

47. Marvin Miller v. State of California, 1973 SCC OnLine US SC 156 : 37 LEd2d 419 : 413 US 15 (1973), para 51.

48. 1973 SCC OnLine US SC 165 : 37 LEd2d 446 : 413 US 49 (1973).

49. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973).

50. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973)

51. Coleman A. Young v. American Mini Theatres Inc., 1976 SCC OnLine US SC 142 : 49 L Ed 2d 310 : 427 US 50 (1976); City of Renton v. Playtime Theatres Inc., 1986 SCC OnLine US SC 31 : 89 L Ed 2d 29 : 475 US 41 (1986).

52. Robert Eli Stanley v. State of Georgia, 1969 SCC OnLine US SC 78 : 22 L Ed 2d 542 : 394 US 557 (1969).

53. 1968 SCC OnLine US SC 78 : 20 L Ed 2d 195 : 390 US 629 (1968).

54. Sam Ginsberg v. State of New York, 1968 SCC OnLine US SC 78 : 20 L Ed2d 195 : 390 US 629 (1968).

55. 1992 SCC OnLine Can SC 16.

56. Butler v. R., 1992 SCC OnLine Can SC 16.

57. 2003 SCC OnLine ZACC 19 : [2003] ZACC 19 : (2004) 1 SA 406.

58. De Reuck v. DPP, 2003 SCC OnLine ZACC 19 : [2003] ZACC 19 : (2004) 1 SA 406.

59. (1976) 1 EHRR 737.

60. Constitution of India, Art. 19(2).

61. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (1st Edn., 2016).

62. Constitution of India, Arts. 15 to 18.

63. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (1st Edn., 2016) p. 128.

64. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (1st Edn., 2016) p. 128.