Constitutional validity

Case BriefsHigh Courts

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

Background

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

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

Contentions

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

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

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

 Observations

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

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

Decision

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

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar and Shaji P. Chaly, JJ., while deciding the Constitutional validity of the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007, dismissed the writ petition making significant observations.

Brief Facts

Aggrieved by the inaction on the part of the respondents in honouring a claim made by the petitioner for reimbursement of travel allowances which he had to incur in connection with the hearings before the State Scheduled Castes/Scheduled Tribes Commission at Thiruvananthapuram, instant writ petition for the issuance of mandamus has been filed against the State Government, Kerala. Further, the petitioner seeks to issue a similar relief against the Subordinate Courts so to implement speedy trial provided under Section 14 of the Atrocities Act by taking up the Atrocity cases and related matters immediately after the custody and bail cases. Furthermore, the writ petition seeks to declare the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007 and the rules framed thereunder as unconstitutional on the ground of inconsistency and repugnancy with the Central Act. 

Issue

  1. Whether the State Government can form rules departing from central rules and thereby, deny rights conferred by the Central Government?
  2. Whether the State Government can disobey the rules framed by the Central Government for the benefit of the Scheduled Castes and Scheduled Tribes and decline to make provisions in the budgets thereby causing hardship to the poor people?
  3. Whether the subordinate courts can violate the law to the disadvantage of the Scheduled Castes and Scheduled Tribes by denying speedy trial though provided in Section 14 of the Act?

Contentions

The counsel for the petitioners made a submission on the following grounds;

  1. That the Central Act and the rules framed thereunder are binding on the State Government and it is, therefore, obligatory for them to act in consonance of the same.
  2. That the rules framed by the State Government do not fall under Rule 11, 12 or 15 of the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, as prescribed by the Central Government.
  3. That the State Government has failed to comply with the directive laid down under Rule 14, which mandates the State to allocate a certain sum in the Annual State budget for the SC/ST community.
  4. That the State is incompetent to make any law or enumerate any rule on the said subject, following which, the Kerala State SC/ST Commission Act, 2007 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 are liable to be declared as unconstitutional. The petitioners further cited, Barai v. Henry, (1983) 1 SCC 177 and Thirumuruga Hirupananda Variar v. State of Tamil Nadu, (1996) 3 SCC 15.
  5. That the District Magistrates and other similar officers callously neglected the duties prescribed for providing facilities and for making payments under the Schedule and the rules.
  6. That the lower courts do not implement speedy trials, as provided under Section 14 of the SC/ST (Prevention of Atrocities) Act, 1989, thereby causing hardship to the victims and witnesses, etc.

The counsel for the respondents submitted as follows;

  1. That the petitioner has filed complaints before the Kerala State SC/ST Commission seeking Travel Allowance(TA)/Dearance Allowance(DA) claims, including hotel bill, room rent, etc. for payment.
  2. That as per the Kerala State Commission for the Scheduled Castes and scheduled tribes Act, 2007 and the rules framed thereunder, there is no provision for paying TA or DA to the victims and witnesses who appear before the Commission, for the purpose of enquiry into the complaints. The Commission has no such fund to consider the claim.
  3. That the Commission is empowered to conduct an enquiry into cases where there are allegations of a miscarriage of justice during investigation and hence, the SC/ST complainants, who register complaints/petition before the State Commission, are not entitled to get TA/DA, when they appear before the Commission under any of the provisions of the Kerala State Commission for Scheduled Castes and Scheduled Tribes Act, 2007 and the rules framed thereunder.
  4. Cases under sections 3(1) and 3(2) of Prevention of Atrocities Act are registered in Police Stations and Special Cells are constituted for that purpose. Further, as mentioned in the SC/ST (Prevention of Atrocities) Rules, 1995, the District Magistrate, Sub Divisional Magistrate or other Executive Magistrate is the authority, liable for payment of such allowances to the victims of atrocity/dependent in the matter of investigation and trial.
  5. That even though the Kerala State Commission for Scheduled Castes and the Scheduled Tribes has the powers of a civil court, with regard to its function under Section 9, Rule 11 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, is not applicable to the Commission.
  6. That Four Special Courts for the trial of offences under the SC/ST (POA) Act cases, have been established at Manjeri, Mananthavady (Kalpetta), Kottarakkara (Kollam) and Mannarkkad (Palakkad). The work turn-out in the four Special Courts for the trial of offences under SC/ST(POA) Act cases are being monitored on a monthly basis by the Judges holding the administrative charges of the respective districts and necessary directions and guidelines are being issued for the speedy trial and disposal of those cases.

Observations

The bench made significant observations with respect to State’s competency to legislate in presence of a central law on the same subject, separation of powers and mutual interaction between the three organs in a democratic setup and instances where the Commission is obligated to make reimbursements. It cited several case laws and observations with respect to the above enumerated hereby;

1. Bhim Singh v. Union of India, (2010) 5 SCC 538;

“While observing that the Constitution does not strictly prohibit overlapping of functions as this is inevitable in the modern parliamentary democracy, the Constitution prohibits exercise of functions of another branch which results in wresting away of the regime of constitutional accountability. Only when accountability is preserved, there will be no violation of principle of separation of powers. Constitution not only requires and mandates that there should be right decisions that govern us, but equal care has to be taken that the right decisions are made by the right body and the institution. This is what gives legitimacy, be it legislation, a policy decision or a court adjudication.”

2.  V.K. Naswa v. Home Secretary, Union of India, (2012) 11 SCC 42;

“It is outside the power of judicial review to issue directions to the legislature to enact a law in a particular manner, for the Constitution does not permit the courts to direct and advice the executive in matters of policy. Parliament, as the legislature, exercises this power to enact a law and no outside authority can issue a particular piece of legislation. It is only in exceptional cases where there is a vacuum and non-existing position that the judiciary, in exercise of its constitutional power, steps in and provides a solution till the legislature comes forward to perform its role.”  [Also refer; Manoj Narula v. UOI, (2014) 9 SCC 1 and Supreme Court Employee Welfare Assn. v. UOI, (1989) 4 SCC 187]

 3. Regina (Countryside Alliance) v. Attorney General, (2008) 1 AC 719;

 “…The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.”

4.State of Himachal Pradesh v. Satpal Saini, (2017) 11 SCC 42;

“Reference was made to Supreme Court Employees’ Welfare Association, (1989) 4 SCC 187, that no writ of mandamus can be issued to the legislature to enact a particular legislation nor can such direction be issued to the executive which exercises the powers to make Rules in the nature of subordinate legislation.”

With respect to instances where the State Government is liable to reimburse the expenses incurred by the complainant, the Court highlighted the following points;

  1. Every victim of atrocity or his/her dependent and witnesses shall be paid expense from his place of residence to the place of investigation or trial of offence under the Act.
  2. The District Magistrate or any other Executive Magistrate shall make necessary arrangements for providing transport facilities or reimbursement of full payment to the victims of atrocity and witnesses for visiting the investigating officer, Superintendent of Police/Deputy Superintendent of Police, District Magistrate or any other Executive Magistrate.
  3. Every woman witness, the victim of atrocity or her dependent being a woman or a minor, a person more than sixty years of age and a person having 40 % or more disability shall be entitled to be accompanied by an attendant of her/his choice. The attendant shall also be paid traveling and maintenance expenses as applicable to the witness or the victim of atrocity when called upon during hearing, investigation and trial of an offence under the Act.
  4. The witness, the victim of atrocity or his/her dependent and the attendant shall be paid daily maintenance for the days he/she is away from the place of his/her residence or stay during investigation, hearing and trial of an offence, at such rates but not less than the minimum wages, as may be fixed by the State Government for the agricultural labourers.
  5. In addition to daily maintenance expenses, the witness, the victim of atrocity (or his/her dependent), and the attendant shall also be paid diet expenses at such rates, as may be fixed by the State Government from time to time.
  6. The payment of traveling allowance, daily allowance, maintenance expenses and reimbursement of transport facilities shall be made immediately or not later than three days by the District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate to the victims, their dependents/attendant and witnesses for the days they visit the investigating officer or in-charge police station or hospital authorities or Superintendent of Police, Deputy Superintendent of Police or District Magistrate or any other officer concerned or the Special Court.
  7. When an offence has been committed under Section 3 of the Act, the District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate shall reimburse the payment of medicines, special medical consultation, blood transfusion, replacement of essential clothing, meals and fruits provided to the victim of atrocity.

 Decision

While upholding the Constitutional validity of the State Act, the bench observed: “neither the Commission nor the State Government, is obligated to create a specific fund for reimbursement of the expenses, incurred by the complainant/witnesses for their appearance, in relation to inquiry and examination of a complaint by the Commission constituted under Section 3 of the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007, and such fund is required to be created by the State Government, only in the case of investigation or trial.”

It was further said that, the submissions made by the petitioner are not sustainable and cannot be countenanced, as there is no derogation or inconsistency between the Central and the State Rules. [M.P. Chothy v. State of Kerala, 2020 SCC OnLine Ker 4254, decided on 29-09-2020]

Case BriefsHigh Courts

Patna High Court: In a petition alleging Section 234E of the Income Tax Act, 1961 to be unconstitutional, ultra vires and in contravention of the Constitution of India, Division Bench of Sanjay Karol, CJ., and S. Kumar, J., disposed of the petition refuting all the said allegations and upholding Section 234E as constitutionally valid.

Two fold submissions have been made by the petitioner in the present petition which are (1) constitutional validity of Section 234E of the Income Tax Act, 1961 is challenged; (2) Initiation of proceedings under Section 200A of the Income Tax Act, 1961 is bad in law.

The factual matrix in the present matter is such that a fee for default in furnishing statement under heading Levy of fee in certain cases in chapter XVII-Collection and Recovery-Interest Chargeable has been levied on the petitioner and the same has been challenged.

While dealing with the first issue whereby the constitutional validity of Section 234E of the Income Tax Act, 1961 has been challenged, the Court found no substance in the said contention raised by the petitioner. It is held that under no circumstances can it be implied that the aforementioned statute has was passed by an incompetent legislature or that it has infringed the rights guaranteed under Part III of the Constitution of India. Section 234E is reproduced below for reference-

“234E. Fee for default in furnishing statements.

—(1) Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delivered a statement within the time prescribed in sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues.

(2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be.

(3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section

(3) of section 200 or the proviso to sub-section (3) of section 206C.

(4) The provisions of this section shall apply to a statement referred to in sub-section (3) of section 200 or the proviso to sub-section (3) of Section 206C which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after the 1st day of July, 2012.”

Further, relying on the position adopted by other Indian Courts of law while settling a similar issue in a string of case laws, the Court dismissed this contention raised by the petitioner basis the judgments delivered in the cases of Rashmikant Kundailia v. Union of India, (2015) 373 ITR 0268 (Bom), Dr Amrit Lal Mangal v. Union of India, (2015) 235 Taxman 0410 (P &H) and Biswajit Das v. Union of India, (2019) 413 ITR 0092 (Delhi).

Now with respect to the second contention of the petitioner that the proceedings under Section 200A of the Income Tax Act, 1961 is bad in law, the counsel for the petitioner, D.V. Pathy has submitted that the petitioner will be taking recourse under the statutory remedy that is available to him. He pleads for the issue of limitation to be relaxed.

Counsel of the respondents, Archana Sinha has submitted that the issue of limitation shall not be raised during the proceedings given that the petitioner takes recourse under the statute within a period of thirty days from the date of passing of this order.

In view of the facts, circumstances, authorities cited and the arguments advances, the Court disposed of the petition with the direction that the subject of limitation shall not come into the picture if statutory proceedings are initiated within a period of thirty days from the date of this order.[L.N. Sales Pvt. Ltd. v. Union of India, 2020 SCC OnLine Pat 1232, decided on 20-08-2020]

Case BriefsForeign Courts

Constitutional Court of South Africa: 9-Judge Bench of the Constitutional Court unanimously decided upon the constitutional validity of Section 2(1) of the amended South African Citizenship Amendment Act, 2010. The Court did not uphold the order passed by the High Court of South Africa, Gauteng Division, Pretoria, which declared Section 2(1) of the amended Citizenship Act as unconstitutional and invalid.

The five applicants of the present case, all of whom provided evidence before the court that at least one of their parents was a South African citizen at the time of birth, had approached the High Court in October 2016 and pleaded that an order be made declaring Section 2(1)(a) and (b) of the amended Citizenship Act as constitutionally invalid. Section 2 read that- “(1) Any person— (a)  who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010 [i.e. 1 January 2013], was a South African citizen by birth or by descent; or (b)  who is born or was born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, shall be a South African citizen by birth.” As alleged by them, this amended section carried various constitutional infringements. The first was that this section did not include a provision to retain the citizenship of those who came under Section 13 of the Births and Death Registration Act, 1992 which stated that if a child of a South African citizen is born outside the Republic, then they are eligible to attain citizenship. The applicants made the case that this amended section will effectively strip these citizens of their South African citizenship. The applicants had also pleaded that they be declared as South African citizens and the amended section be struck down as invalid.

The High court upheld their plea of unconstitutionality and granted them their relief with the exception of the 2nd applicant as there was insufficient information. The Constitutional Court now heard an application for confirming the order of constitutional invalidity granted by the High Court.

In its Judgment, the Court noted that while there is no express constitutional provision requiring Judges to furnish reasons for their decisions, reasoning is nevertheless an important duty and vital towards establishing legitimacy of the judiciary. The High Court in its judgement had not provided any coherent reasons for its decision and merely approved the draft order of the applicants. With this the Court goes into a detailed discussion of the history of South African citizenship starting from the 1949 Citizenship Act. The Court laid special emphasis on the fact that legal statutory provisions must be read in their ordinary understanding without resorting to philosophical and intended meanings. Further, Judges must adhere to a purposive understanding of statutes in the sense that they construe them in a way that gives effect to the core values enshrined in the Constitution. The Court addressed the first issue of- who was a South African citizen by birth? As per Section 2(1)(a) of the amended Citizenship Act, all those who fell within this definition on 31 December 2012 would remain citizens by birth in terms of the amended Citizenship Act but this in turn deprives and excludes those who acquired citizenship differently. The inconsistency that arose is that through the 2010 Amendment, the meaning of  “citizen by descent” has been drastically modified to even include those who have been adopted in terms of the Children’s Act, 2005 by a South African citizen but at the same time appears to remove the previous concept of citizenship “by descent” altogether. It was noted that it is illogical why a legislation would provide for citizenship by birth for children of foreign nationals while not providing for those who had previously been born to South African parents even though it was about the Republic. This brought into question the intended meaning of Section 2(1)(b).

The Court held that retrospective application cannot be simply implied unless it is explicitly stated and hence the usage of the word “is” in the aforementioned section might suggest a narrow, prospective-only interpretation that strips citizenship rights from a great number of people in the most unfair and unjustified manner. At the same time, a word such as “is” is capable of bearing a meaning that applies both to those born before and after the commencement of the 2010 Amendment because it refers to a state of existence, and does not define at what point does that existence arise.

Moreover, as discussed above, the Court bears a burden to arrive at an understanding that is constitutionally compliant and must promote rights rather than limit them. With this, the Court agreed the proper way to read Section 2(1)(b) was that “any person who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen” mean a person who is a child of a South African citizen, regardless of when that person is born or whether that person is born inside or outside the Republic. This in turn also validated the current wordings of Section 2(1)(a) to include persons born even outside the Republic. The Court therefore did not confirm the findings of the High Court that declared the amendment as invalid and upheld its constitutionality. [Chisuse v. Director-General, Department of Home Affairs, [2020] ZACC 20, decided on 22-07-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C Khulbe, J., addressed the challenge placed on the constitutionality of the Uttarakhand Char Dham Devasthanam Management Act, 2019 by Dr Subramanian Swamy in a very detailed manner and reached the conclusion that the same fails to be unconstitutional.

Uttarakhand Char Dham Devasthanam Management Act, 2019

The said act is entrusted with the management of Hindu temples to a Board whose chairman and members are nominated by the State Government.

Through this act legal provisions for temples and devasthanams located in Uttarakhand are made.

Chardham temples in Uttarakhand prior to the 2019 Act

Shri Badrinath and Kedarnath temples, were, prior to the 2019 Act coming into force, under the control and management of a managing committee constituted under the U.P. Shri Badrinath and Kedarnath Temples Act, 1939 which continued to remain in force till it was repealed by the 2019 Act.

Dr Subramanian Swamy

He sought to draw a distinction between the Somnath, Shirdi Sai Baba and Vaishno Devi temples and temples brought within the ambit of the 2019 Act.

Further he suggests that, after striking down the provisions of the 2019 Act as unconstitutional, the remedy lies in the promulgation of a Central Legislation in consultation with the heads of religious denominations who are members of the Hindu Dharma Acharya Saha.

What Dr Subramanian Swamy suggests, as an alternative to the 2019 Act?

He suggests of a Central Legislation passed by the Parliament.

Subject to constitutional limitations, including legislative competence, the power of either the Central or the State legislature to make laws is plenary.

Judicial Intervention

Whether the Board constituted under the 2019 Act should be continued in its present form, or be replaced by another, are all matters for the competent legislatures to decide, and are not matters for judicial intervention.

A legislation does not become unconstitutional merely because there is another view.

Submissions were put forth by Dr Subramanian Swamy, in-persons and Rajendra Dobhal, Senior Counsel and Manisha Bhandari, Counsel for Petitioners.

Advocate General appearing for the State Government and Ravi Babulkar, Senior Counsel for the Board and Dr Kartikey Hari Gupta, Counsel for the interveners, made submissions in support that the Legislation is intra-vires Part III of the Constitution.

Writ Petition is a Political Interest Litigation?

Bench while disagreeing to the said submission in view of the fact that Dr Subramanian Swamy who has invoked the jurisdiction of this Court questioning the validity of 2019 Act and the ruling dispensation in the State of Uttarakhand belong to the same political party.

Mockery of Constitutional Principles

Respondents actions make a mockery of the constitutional principles and are an abuse of the legal process and statutory power, they are vitiated by malafides and extraneous considerations as held by the Supreme Court in Supreme Court Advocates on Record Assn. v. UOI, (1993) 4 SCC 441

Further, No obligation is placed by the Constitution on the State Legislature to produce evidence before the Court, regarding improper management or mis-management of the Char Dham fund, necessitating the 2019 Act being made — Neither is it permissible for us, nor do we see any reason to do so, to declare the 2019 Act unconstitutional on this score.

Article 13 of the Constitution of India

Article 13 relates to laws inconsistent with and in derogation of the fundamental rights.

No post-constitution law can be made contravening the provisions of Part III, and therefore such a law to that extent, though made, is a nullity from its inception, and is still born.

As Articles 14, 25, 26 and 31-A, which the petitioners claim the 2019 Act violates, are all in Part III of the Constitution, if the 2019 Act is held to be in contravention of anyone of the aforesaid Articles, it is liable to be declared void to the extent of the contravention.

Article 14 of the Constitution & Tests of valid classification

Temples covered by 2019 Act are primarily the Char Dhams and the object sought to be achieved by the said Act is to rejuvenate these temples and to provide effective management thereof by constituting a Devasthanam Management Board, twin test of a valid classification under Article 14 of the Constitution of India are satisfied.

Object of classifying temples within the ambit of 2019 Act by the Devasthanam Management Board, undoubtedly reasonable. It cannot, therefore, be said to suffer from manifest arbitrariness violating Article 14 of the Constitution of India.

Is the Act ultra vires Article 26 of the Constitution of India? 

Article 26 of the Constitution confers freedom to manage religious affairs and, thereunder, subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

Article 26 (b) of the Constitution of India

Under Article 26(b), a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and include even practices which are regarded by the community as part of its religion.

Court stated that, as long as the law does not totally divest the administration of a religious institution or endowment, by a religious denomination, the State has the general right to regulate the right of administration of a religious or charitable institution or endowment; and such a law may choose to impose such restrictions the need for which is felt the most, and to provide a remedy therefor.

Hindu and Sanatana Dharma | Hindus, professing and having faith in Sanatana Dharma, constitute a religious denomination?

Sanatana Dharma showcases, to its followers, the wide view of the world and a way of life with a clear and sagacious picture of reality.

Section 2(l) of the 2019 Act defines “Hindu religion” to mean a sect of Hindus professing or having faith in Sanatana Dharma. All Hindus, by and large, profess and have faith in the “Sanatana Dharma”. They cannot, therefore, be equated to any religious denomination, for the chord of a common faith and spiritual organization, which unites the adherents together, is absent.

Court found no merit in the submission that Hindus professing and having faith in Sanatana Dharma constitute a religious denomination.

A bare reading of Sections 3(1) and (2) of the 2019 Act would show that it is only persons, who follow Hindu Religion, (which is defined in Section 2(l) to mean such sect of Hindus professing Santhana Dharma or having faith in it), who can be nominated as the Chairman and members of the Board, to manage the secular affairs of the Chaar Dhaams and other temples referred to in the 2019 Act. —- The impugned Act cannot be said to violate their fundamental rights under Article 26 of the Constitution of India.

Religious Denomination

No religious denomination can claim to manage the Badrinath and Kedarnath temples atleast from the year 1939. As both the Badrinath and Kedarnath temples were brought within the ambit of the U.P. Shri Badrinath and Shri Kedarnath Temples Act, 1939.

Denomination must be enjoying the right to manage the properties endowed in favour of the institutions. If the right to administer the properties is lost, the protection under Article 26 of the Constitution of India is not available.

Right of administration over the properties of the Badrinath and Kedarnath temples, even if any such right had existed earlier, was lost, on the 1939 Act coming into force, no such right can now be claimed by a religious denomination even if it existed.

Court on perusal of the contentions placed by Dr Subramanian Swamy held that viewed from any angle, the submission of Dr. Subramanian Swamy that the 2019 Act violates the fundamental rights guaranteed under Article 26 of the Constitution, necessitates rejection.

Gangotri Dham Temple

No material was placed on record to show that the Semwal Brahmins constitute a religious denomination, or that they established the temple, or even that they exercised control over the management of the Gangotri temple at any stage prior to 2002, their claim for protection, under Article 26(d) of the Constitution of India, necessitates rejection.

“…ever since 1939 when the Rules were framed, it is the temple committee which was managing the affairs of the temple, and not the Semwal Brahmin community.”

The priests at Gangotri are Semwal Brahmins, a sub-caste of Brahmins, and their identity as a sub-caste would not make them a religious denomination. The Gangotri Dham temple is a public temple, and there are no exclusive identified followers of any cult.

Public Temples

The Char Dham temples are all public temples. None of them, including the Gangotri temple, belong to a family nor are they, as held earlier, been established by a religious denomination.

The public at large has the right to worship the deity in all the Char Dham and associated temples.

Void ab initio

If the 2019 Act is held to violate any one of the fundamental rights guaranteed by Part III of the Constitution, including Articles 14, 25 and 26 thereof, the said Act is liable to be declared void ab initio.

Mere fact that the 2019 Act is not saved by Article 31-A(1)(b) of the Constitution, makes little difference and is of no consequence.

The “properties belonging to the dieties of the Char Dham temples” shall continue to remain the properties of the Char Dhams, and it is only its possession alone which shall be with the Char Dham Devasthanam Board.

While concluding the decision after a thorough analysis of the contentions and facts relevant to the present matter, Court held that

If the law violates the fundamental rights guaranteed to the citizens of the country, then the law can either be struck down or be read down to bring it in consonance with the Constitution of India. A provision may be read down and its creases ironed out, to save it from being declared unconstitutional.

Relying on several decisions of the Supreme Court and High Courts, it stated that the words “shall devolve” in Section 22 shall be read as “devolve on the Char Dham and shall be maintained by the board”.

Likewise the words “may further acquire land”, in the proviso thereto, shall be read as “may further acquire land on behalf of the Char Dham”.

When so read, Section 22 and its proviso would be saved from being struck down as ultra vires the provisions of the Constitution.

Hence, challenge to the validity of the 2019 Act, on the ground that it violates Articles 14, 25, 26 and 31-A of the Constitution of India, fails. [Dr Subramanian Swamy v. State of Uttarakhand, 2020 SCC OnLine Utt 329 , decided on 21-07-2020]

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Case BriefsForeign Courts

Supreme Court of Canada: While deciding the issues of constitutional validity of Genetic Non-Discrimination Act, S.C. 2017 criminalising compulsory genetic testing and non-voluntary use or disclosure of genetic test results in context of wide range of activities and Parliament’s jurisdiction over criminal law; a 9 Judge Bench of the Court with a ratio of 5:4 upheld the constitutionality of the 2017 Act, observing that Parliament has the power to criminalise actions such as forced genetic testing or disclosure of a person’s existing genetic test results as a condition of obtaining access to goods, services and contracts.

The Canadian Parliament enacted the Genetic Non-Discrimination Act, 2017 with the objective of establishing prohibitions relating to genetic tests. As per the legislation,  individuals and corporations cannot force people to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services and contracts; cannot refuse an individual access to goods, services and contracts because they have refused to take a genetic test or  disclose the results of a genetic test; and cannot use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services. The Legislation also amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination. The Government of Quebec objected on the ground that Sections 1 to 7 of the 2017 Act exceeded Parliament’s authority over criminal law under Section 91(27) of the Constitution Act, 1867.

The majority comprising of Karakatsanis, Abella, Martin, Moldaver and Côté, JJ., looked into the pith and substance of the legislation in question. They observed that while determining whether a law falls within the authority of Parliament/ Provincial Legislature, a Court must first characterize the law and then, based on that characterization, classify the law by reference to the federal and provincial heads of power under the Constitution. The title of the Act and the text of the prohibitions provide strong evidence of objective of combatting genetic discrimination and the fear of genetic discrimination based on the results of genetic tests. The provisions of the Act do not target a particular activity or industry, but instead targets the conduct that enables genetic discrimination. It was further observed that Section 91(27) of the Constitution Act, 1867, gives Parliament the exclusive authority to make laws in relation to the criminal law. The majority noted that, “the essential character of the prohibitions in the 2017 Act represents the Parliament’s response to the risk of harm that the prohibited conduct i.e. genetic discrimination and the fear of genetic discrimination based on genetic test results pose to several public interests traditionally protected by the criminal law- autonomy, privacy, equality and public health”. Genetic discrimination threatens the fundamental social value of equality by stigmatizing and imposing adverse treatment on individuals because of their inherited, immutable genetic characteristics. Thus in pith and substance, the Legislation is a response to the risk of harm that the prohibited conduct and discrimination based on genetic test results, pose to autonomy, privacy and equality. The dissenting opinion was delivered by Wagner C.J. and Brown, Rowe and Kasirer JJ. [Canadian Coalition for Genetic Fairness v. Attorney General of Canada, 2020 SCC 17, decided on 10-07-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Samit Gopal, J., addressed a petition assailing the constitutional validity of Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020 and asked the State of Uttar Pardesh to file a response for the same.

Present petition was preferred to assail the constitutional validity of “The Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020”.

Petitioner’s counsel submitted that Ordinance impugned deserves to be declared void being inconsistent with the provisions of Part-III of the Constitution of India. Citing the Supreme Court’s decision in Re: Destruction of Public & Private Properties v. State of A.P., (2009) 5 SCC 212, stated that a person is having a fundamental right to privacy. Such valuable right shall be seriously infringed by operation of the Ordinance of 2020.

Further, provisions of the Ordinance shall allow the persons to be viral for public at large as criminal without their adjudication for any criminal charge. The above stated Ordinance is also in contravention of Supreme Court’s decision in Rojer Mathew v. South Indian Bank Ltd., 2019 SCC Online SC 1456.

Adding to the above, it was emphasized that the intention of the Ordinance is only to frustrate and overrule the law laid down by a Division Bench of this Court In-Re Banners Placed on Road Side In The City of Lucknow v. State of Uttar Pradesh (PIL No. 532 of 2020), decided on 9-03-2020.

Bench in view of the above considered it appropriate to have adequate response of the State of Uttar Pradesh by a counter affidavit on or before 25-03-2020.

The case has been listed for 27-03-2020. [Shashank Shri Tripathi v. State of U.P., PIL No. 547 of 2020, decided on 18-03-2020]

Case BriefsHigh Courts

Karnataka High Court: B. Veerappa, J. dismissed the writ petition filed under Articles 226 and 227 of the Constitution of India,  by a Public Works Department Contractor.

In this petition Section 6 of the Karnataka Transparency in Public Procurements (KTTP) Act, 1999, was upheld by this Court. It enabled to make reservations in the process of Tenders for Scheduled Castes and Scheduled Tribes.

The facts of the case are as follows:

The Karnataka Transparency in Public Procurements Act, 1999 came into force w.e.f. 04-10-2000. The main intent behind coining this Act was that it streamlined the procedure in public procurement and also ensured accountability. The State Government made it mandatory for all the procurement agencies under the Government to follow the tendering process in public procurement.

Section 6 of the KTTP Act, says that no tender shall be invited, processed or accepted by a Procurement Entity after the commencement of this Act except in accordance with the procedure laid down in this Act or the Rules made thereunder. The KTTP rules are made by the Government of Karnataka, exercising the powers conferred under sub-section (1) of Section 23. The Government by the impugned amendments amended the provisions of Section 6 of the KTTP Act by the KTTP (Amendment) Act, 2016 and also inserted Rule 27(A) in the KTTP Rules by the Karnataka Transparency in Public Procurements (Amendment) Rules 2017.

Transparency in Public Procurements (Amendments) Rules, 2017, resulted in certain reservations created in the process of Tender, for the benefit of the Scheduled Castes and Scheduled Tribes. According to the Amendment, the Tender Inviting Authority has to reserve 17.15% of the works to the Scheduled Castes category and 6.95% of works to the Scheduled Tribes Category in the construction works. The value of such work should not exceed Rs 50,00,000. Hence, the petitioner challenged the said amendments.

The counsel for the petitioner, S.M. Chandrashekhar, contends that while making the reservations, the Constitution of India provided social, economic and educational and cultural safeguards to the Scheduled Caste and Scheduled Tribe under Articles 17, Article 46 and Article 15(4) of the Constitution of India. The Constitution of India also provides for political safeguards under Article 243D, Article 243T, Article 330 and Article 332. Service safeguards are covered under Article 16(4), Article 16(4A) and Article 16(4B). Article 164 of the Constitution of India provided other safeguards to the Scheduled Castes and Scheduled Tribes.

Further, Article 19(1)(g) of the Constitution of India states that every citizen has a right to practice any profession or to carry on any occupation, trade or business. The Amendment made by the State Government violated Article 19(1)(g) of the Constitution of India. Hence, it was contended by the petitioner that the amendment was ultra vires of the Constitution of India and should be struck down. It was brought to notice that the amendment was in violation of the Fundamental Rights and does not conform to constitutional principles and is discriminatory. It was also contended that the amendment is discriminatory and arbitrary, hence it is in violation of Article 14 of the Constitution of India on the same ground.

Still, further, Article 14 of the Constitution of India guarantees Equality, and the Right to Equality includes the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and equality of opportunity in matters of employment. Both the insertion of proviso to Section 6 of the KTTP Act and insertion of Rule 27(A) in KTTP Rules are arbitrary and unconstitutional and hence they should be struck as per the contentions of the petitioner.

The counsel for the respondent, R. Nataraj, Additional Advocate General, contended that the petition filed by the petitioner is not maintainable either in law or on facts and there it should be dismissed. The counsel further states that the Legislation is based on the principle of distributive justice, protect the interests of weaker sections of the people under Article 42 of the Constitution of India. The said Article protects the Scheduled Castes and Scheduled Tribes and protects them from social injustice and all the forms of the exploitation. The counsel further contends that the impugned Legislation was brought to minimize the inequalities, distributive its largess to the weaker sections and to make life worth living with dignity. It was said that providing reservation in Government contracts to the persons belonging to the above-mentioned group would also achieve the constitutional objectives of rendering socio-economic justice, which in turn improve their economic status so that their economic development is improved.

Further, it elaborated that Economic empowerment is a basic human right and a fundamental right as part of the right to live, equality and status and dignity to the poor, weaker sections, Dalits and tribe.

The two questions framed by the Court were:

  1. is the amendment of inserting proviso 6 in the KTTP Act and inserting Rule 27(A) in the rules are justified?
  2. I the amendment in violation of the Constitution of India?

The Court on considering these arguments mentioned for the first issue that the reservation shall only apply for education, employment and not in any other subjects including the Tender process and Part III of the Constitution does not provide such reservation for Scheduled Castes and Scheduled Tribes and therefore the impugned reservation is in utter violation of the provisions of Articles 14, 15(1), 16(1) and 19(1)(g) of the Constitution of India. Court held that though the argument is attractive the Court is not in the position to accept the same as the impugned reservation does not abrogate or abridges rights guaranteed by Part III of the Constitution and it is not violative of the basic structure.

It was observed that equal status is to be provided to those communities which are backward and is depressed. Along with that, it is for them on whom injustice has been perpetrated. It was the growth of the country and so that many parties in the country may not mislead the poor. Hence, the prayer of the petitioner was not accepted.

The first issue raised was answered in affirmative. The 2nd issue was answered in the negative holding that the impugned amendments were not violative of the Articles 14, 15, 16, 19(1)(g) and 21 of the Constitution of India and are reasonable and in consonance with the right and spirit of the Constitution of India. [Vishwanath H.M. v Govt. of Karnataka, 2019 SCC OnLine Kar 2671, decided on 20-12-2019]

Cyril Amarchand MangaldasExperts Corner

Background

In a landmark decision on 10-4-2019[1], a Division Bench of the High Court of Delhi (Delhi HC), pronounced a judgment relating to a batch of petitions filed by car manufacturers wherein the constitutionality of certain provisions of the Competition Act, 2002 (Act) was challenged. The genesis of the matter arose from the Competition Commission of India’s (CCI) findings in what has come to be known as the Auto Parts case[2]. The complaint alleged that 3 car manufacturers, M/s Honda Siel Cars India Ltd., Volkswagen India Pvt. Ltd. and Fiat India Automobiles Limited, restricted free availability of spare parts in the open market, which caused a denial of market access for independent repairers, in addition to other anti-competitive effects including high prices of spare parts and repair and maintenance services for automobiles.

After a detailed investigation by the Director General (DG) into the practices of 14 car manufacturers (the informant had only complained about 3 car manufacturers), the CCI found that the car manufacturers had contravened the provisions of Sections 3 and 4 of the Act and levied a penalty of 2% of the total turnover in India on each of the manufacturers. As a consequence, some car manufacturers filed a writ before the Delhi HC challenging the constitutional validity of certain provisions of the Act, which directly impacted the validity of the CCI’s final order in Auto Parts case[3].

Key Issues for Determination

The Delhi HC delineated the following key issues for determination: (i) whether the CCI is a tribunal exercising judicial functions; (ii) whether the composition of the CCI is unconstitutional and violates the principle of separation of powers; (iii) whether the “revolving door” practice at the CCI vitiates any provisions of the Act and more specifically, if the manner for decision-making provided under Section 22(3) of the Act is unconstitutional; and (iv) whether an expansion in scope of inquiry by the CCI is illegal.

Ruling on the first issue, the Delhi HC held that the CCI is in part administrative, expert (when discharging advisory and advocacy functions) and quasi-judicial (while issuing final orders, directions and penalties) and cannot be characterised as a tribunal solely discharging judicial powers.

On the second issue, the Delhi HC dealt with each of the provisions of the Act that were challenged by the petitioners and also undertook a comparison of regulatory models of different specialised bodies/tribunals vis-à-vis the CCI. In particular, Section(s) 61 and 53-T of the Act (which deal with exclusion of jurisdiction of civil courts and High Courts, respectively); Section 9 (which provides for the selection procedure/committee for members of the CCI); Section(s) 11, 55 and 56 (which deal with tenure of the members of the CCI and the provision for supersession by the Central Government in the event the CCI is unable to discharge its functions); Section 53-D (which prescribes the composition and constitution of the Appellate Tribunal) were upheld to be valid. Regarding Section 8 of the Act, the Delhi HC clarified that the requirement for the CCI to have a judicial member at all times is mandatory and in line with precedents of the Honourable Supreme Court of India (SC) as well. The Delhi HC declared Section 53-E of the Act (which deals with composition of the Selection Committee of the Appellate Tribunal), to be unconstitutional subject to the decision of the Honourable SC in Central Administrative Tribunal v. Union of India[4] (wherein certain provisions of the Finance Act, 2017 have been challenged).

Most importantly, the Delhi HC declared Section 22(3) of the Act which provides a casting vote (to the Chairperson of the CCI) to be void. It was held that the principle of equal weight for decisions of each participant of a quasi-judicial tribunal is destroyed by this provision. Whereas the proviso to Section 22(3), mandating a minimum quorum of three members (including the Chairman) for any meeting of CCI — where an adjudicatory decision is made — was upheld.

Regarding the “revolving door policy” the Delhi HC emphasised on the principle of “who hears must decide” and stated that any violation of this rule would render any final order void. It was also clarified that much would depend on the factual context and merely resorting to the practice of “revolving door” would not render Section 22 of the Act invalid or arbitrary. It is necessary that the party raising such objections must have been prejudiced.

Further, in line with the decision of the Honourable SC in Excel Crop Care Ltd. v. CCI[5], the Delhi HC held that the CCI is well within its power to expand the scope of inquiry to include other issues and parties. This is because at the prima facie stage, the CCI may not have all information in respect of the parties’ conduct.

Finally, the Delhi HC has directed the CCI to frame guidelines ensuring that the principle of “one who hears decides” is embodied in letter and spirit in its functioning. It concluded that in all cases where final hearings begin, the membership should not vary, and a matter should preferably be heard by 7 or at least, 5 members. The CCI has also been directed to ensure that a judicial member is present and participating at all times during a final hearing. The directions also mandate the Central Government to take expeditious steps and fill all existing vacancies in the CCI within 6 months.

Key Takeaway

While the directions of the Delhi HC will go a long way in entrenching principles of natural justice in the CCI’s practice and procedure, they may have immediate ramifications on its functioning (given that the CCI is currently composed of 3 members with no judicial member). Interestingly, this may also have a bearing on the decision of the Union Cabinet which had approved “right sizing” of the CCI to 4 members (including the Chairperson) in April last year.

Having said that, this may not be the last we hear from the judiciary as the Delhi HC order is likely to be challenged before the Supreme Court of India.

*Bharat Budholia, Partner can be contacted at Bharat.budholia@cyrilshroff.com, Aishwarya Gopalakrishnan, Principal Associate can be contacted at Aishwarya.gopalakrishnan@cyrilshroff.com and Dhruv Rajain, Senior Associate can be contacted at dhruv.rajain@cyrilshroff.com with the Competition Law Practice at Cyril Amarchand Mangaldas.

[1]        Mahindra Electric Mobility Ltd. v. CCI, 2019 SCC OnLine Del 8032.

[2]        Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.

[3]        Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.

[4]        WP (C) No. 640 of 2017 (SC).

[5]        (2017) 8 SCC 47.

Hot Off The PressNews

Petitioner named Imtiyaz Ali Palsaniya has filed for a review petition in the Supreme Court against the Constitution Bench decision in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), 2018 SCC Online SC 1642.

In the1448-pages detailed judgment, 5- Judge Bench comprising of former CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan, JJ. by a majority of 4:1, declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy.

The said judgment has been challenged by the petitioner who stated that ‘various grounds urged in applications filed weren’t considered by the Court.‘

[Source:https://theleaflet.in]

Case BriefsForeign Courts

Constitutional Court of South Africa: Bench comprising of Cachalia, Dlodlo, Goliath and Petse, AJ., Froneman, Jafta, Khampepe, Madlanga, and Theron, JJ., confirmed two declarations of constitutional invalidity given by the High Court of South Africa, Gauteng Division.

The facts of the case are that a settlement agreement was concluded between Nxasana, former National Director of Public Prosecutions (NDPP), President Zuma, Minister of Justice and Correctional Services whereby payment was made to Nxasana if he vacated his office. Following which Abraham was appointed as NDPP. Issue before Constitution Court was to confirm if the manner in which Mr Nxasana vacated office and Abraham was appointed thereafter were constitutional compliant.

Court was of the view that independence of office of National Director of Public Prosecution (NDPP) is essential to maintain and the fact that former President Zuma wanted to get rid of Nxasana suggested by a blank check offered to Nxasana to fill any amount he wanted, why the president did not go with the inquiry and rather went for huge payment in form of a settlement agreement. Thus, independence of NDPP office was compromised as all the terms of settlement agreement was constitutionally invalid. On the same reasoning Section 12(4) and (6) of the National Prosecuting Authority Act, 1998 were also constitutionally invalidated. This led to the question of constitutional validity of Advocate Abraham’s appointment to which court concluded that if the first act is set aside, a second act that depends for its validity on the first act must be invalid as the legal foundation for its performance was non-existent. Now that the manner in which Mr Nxasana vacated office has been declared constitutionally invalid, it follows that the appointment of Advocate Abrahams is constitutionally invalid. Court though invalidated removal of Nxasana and appointment of Abraham it did not reinstate Nxasana and directed that a new person should be appointed. [Corruption Watch NPC v. President of the Republic of South Africa,2018 SCC OnLine CCSA 14, order dated 13-08-2018]

Case BriefsHigh Courts

Bombay High Court: Following the orders of the Supreme Court to hear petitions challenging the constitutional validity of several provisions of the Real Estate (Regulation and Development) Act of 2016, a Division Bench comprising of Naresh Patil and Rajesh Ketkar, JJ. held the provisions to be constitutionally valid and legal after their harmonious construction.

The petitioners challenged the enactment on the following grounds:

1) By making Section 4 of RERA (requirement to deposit 70% of the amount realized from allottess in an escrow account) applicable to ‘ongoing projects’, the legislature has enacted a retrospective legislation without taking into consideration past agreements and contracts entered into between the promoters and the buyers and the rights and liabilities flowing from them.

2) Sections 5 and 6 (provisions for registration and extension) had been challenged on the grounds that only an extension of one year was allowed without considering circumstances other than force majeure that might be beyond the control of the promoter (like genuine dispute resulting in an injunction, shortage of raw materials), thereby making the provision unreasonable and arbitrary.

3) Challenging the obligation of the authority to complete the remaining development work consequent to lapse or revocation of registration provided in Section 8, the petitioners contended that the provision was very vague, lacked clarity and was also against the interest of the allottees in the absence of any guidelines governing such procedure. It was also contended to be in violation of Article 300-A since the authority cannot sell the unsold flats unless the property is vested with the authority along with the right to sell the same.

4) Section 18 was contended to be contrary to Articles 14 and 19(1)(g). In case the registration of promoter is revoked and the allottee doesn’t withdraw from the project, or if the promoter is not able to give possession of an apartment, then till the possession is handed over, a promoter has to pay interest for every month of delay (from the date of agreement of sale) till the handing over of the possession at such rate as may be prescribed. Hailing this provision as a penal provision, it was prayed that such a retro-active mandate should be held to be unreasonable, arbitrary and unconstitutional and also contrary to Article 20.

5) Since RERA doesn’t provide for any mechanism for redressal of the grievances of the promoter or for getting a refund in case the promoter desires to leave the project or his registration gets cancelled, the enactment is unreasonable.

6) The composition of the authority was challenged since there was no mandate to include a judicial member when the dispute resolution process would involve judicial scrutiny. The explanation to Section 46(1) including member of the Indian Legal Service who has held the post of Additional Secretary was also challenged on grounds of it being violative of established case law that “whenever an authority would discharge adjudicatory functions, presence of a Judicial member is mandatory” [Union of India v. R. Gandhi, (2010) 11 SCC 1]

The pleas of the petitioners were dismissed by the Court holding that RERA is not arbitrary and unconstitutional, keeping the objects and reasons of the legislation in mind that the interests of the allottees need to be protected. The Court however stated that “in case the authority is satisfied that there are exceptional and circumstances due to which promoter could not complete the project in spite of extension granted under Section 6, then the authority would be entitled to continue registration for completing the project”.

The Court also struck down the appointment of Additional Secretary as the judicial member in the Tribunal stating that “in the constitution of a tribunal, majority members must be judges or judicial officers.” [Neelkamal Realtors Suburban Pvt. Ltd. v. Union of India,  2017 SCC OnLine Bom 9302, order dated 06-12-2017]

Case BriefsSupreme Court

Supreme Court: Upholding the Constitutional validity of the provisions of Rule 3 and Rule 3-A of Chapter XXIV of the Allahabad High Court Rules, 1952, the Bench of Dr. A.K. Sikri and N.V. Ramana, JJ held that keeping in mind the administration of justice and regulating the Court proceedings and right to practice and right to appear before the high Courts and Subordinate Courts, power is conferred on the High Courts, to frame rules.

It was alleged by the appellant that the Rules put an unreasonable restriction on his right to practice as an Advocate and are also ultra vires the provisions of Section 30 of the Advocates Act, 1961 that provides for the right to practice of advocates in any Court. The impugned Rules put bar on the Advocate who is not on the Roll of Advocate or the Bar Council of the State to appear, act or plead before the High Court of Allahabad.

Stating that the right under Section 30 of the 1961 Act is subject to Section 34 which provides for power of the High Court to make rules, the Court held that the Act does not confer any absolute right to practice. The right can be regulated by the High Courts by prescribing conditions. If High Court keeping in mind, several relevant factors like the purity in administration of justice, the interest of the litigant public and easy availability of the advocate to assist the court for proper adjudication of the dispute pending before it or expeditious disposal of such proceedings or for any other valid or good reasons which High Court considered just and proper frames such rules. It was, hence, held that that Rules 3 and 3A of the Allahabad High Court Rules, 1952 are perfectly valid and legal and do not violate the right of the appellant under Article 19(1)(g) of the Constitution of India. [Jamshed Ansari v. High Court of Judicature at Allahabad, 2016 SCC OnLine SC 868,  decided on 26.08.2016]