Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a suit filed by Lieutenant Governor (LG) of Delhi (‘plaintiff’) seeking relief of permanent injunction and damages against the defendants on account of defamatory statements made on behalf of Aam Aadmi Party and its members (‘defendants’), Amit Bansal, J., restrained the defendants from posting any defamatory or factually incorrect tweets, re-tweets, hashtags, videos of press conferences/interviews, comments, captions and taglines against the plaintiff and/or his daughter in any manner.

It is the case of the plaintiff that the defendants no. 1 to 6 have launched a barrage of personal attacks against the plaintiff, making unsubstantiated and baseless allegations that the plaintiff has indulged in corruption and money laundering to the tune of Rs. 1,400,00,00,000/- (rupees one thousand four hundred crores) at the time of demonetization in November, 2016, while the plaintiff was the Chairman of the Khadi and Village Industries Commission (KVIC).

A legal notice dated 05-09-2022 was issued on behalf of the plaintiff to the defendants 1 to 6 calling upon the defendants 1 to 6 to refrain from making defamatory statements against the plaintiff, to which no reply has been received so far.

There are basically three allegations made which have to be adjudicated on the touchstone of element of truth. The three allegations are

  1. Acts of corruption during demonetization;

  2. Contracts assigned to plaintiffs’ daughter;

  3. Cash Payments made to weavers in Bihar.

The Court noted that all the allegations are unsubstantiated and have been made in a reckless manner without regard to the truth, in order to cause injury to the reputation of the plaintiff, the Court would be justified in granting an interim injunction. After suffering the brunt of such defamatory content, it is difficult to contemplate a complete restitution through damages and such cases demand immediate injunctive relief.

It was further noted that the plaintiff, being a Constitutional Authority, cannot meet the personal attacks being made by the defendants against him by taking resort to social media platforms and therefore, the only remedy available for the plaintiff to protect his reputation and prevent erosion of the same would be to approach the court of law and seek injunctive relief.

The Court opined that the damage caused to the reputation of an individual is immediate and far-reaching on the internet. Balance of convenience is in favor of the plaintiff and against the defendants. Grave and irreparable harm and injury would be caused to the reputation of the plaintiff if the aforesaid defamatory content continues to exist on the internet and the social media platforms of the defendants and defendants are permitted to continue making defamatory statements of this nature against the plaintiff.

Thus, the Court restrained the defendants and directed the defendants to delete/remove all the defamatory or factually incorrect tweets, re-tweets, hashtags, videos of press conferences/interviews, comments, captions and taglines against the plaintiff and/or his daughter published on the social media platforms, failing which, defendant 7 and 8 are directed to take down such defamatory content available.

[Vinai Kumar Saxena v. Aam Aadmi Party, CS (OS) No. 593 of 2022, decided on 27-09-2022]


Advocates who appeared in this case:

Mr. Maninder Singh, Senior Advocate with Mr. Mahesh Jethmalani, Ms. Bani Dikshit, Mr.Ravi Sharma, Mr. Uddhav Khanna, Mr. Ishaan Karki, Mr.Raghav Tewari, Mr. Ashita Chawla, Mr. Navneet R., Mr. Prabhas Bajaj, Mr. Kishan Kumar, Mr. Wed Khalo and Ms. Anjani Kumar RG, Advocates, for the Plaintiff;

Mr. Rajeev Nayar, Senior Advocate with Mr. Anupam Srivastava, Mr.Vasuh Misra, Mr. Rishikesh Kumar, Mohd. Irsad, Mr. Rakesh Kumar Sinha and Mr. Rajneesh Bhaskar, Advocates, for the Defendants 1 & Defendant 6;

Mr. Sandeep Sethi, Senior Advocate with Mr. Karn Bhardwaj, Mr. Udit Malik, Mr. Rishikesh Kumar, Mohd. Irsad and Mr. Rajneesh Bhaskar, Advocates, for the Defendants 2 and 3;

Mr. Arun Bhardwaj, Senior Advocate with Mr. Manish Sharma, Mr. Ninad Dogra, Mohd. Irsad and Mr. Rajneesh Bhaskar, Advocates, for the Defendant 4.

Case BriefsSupreme Court

Supreme Court: The bench of Dinesh Maheshwari and JB Pardiwala*, JJ has explained the true import of Section 13(1)(e) of the Prevention of Corruption Act, 1988  and has held that, under the said Section, it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term “known sources of income” would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. The onus on the accused is to account satisfactorily for the money/assets in his hands.

The Court stressed that the expression “known source of income” is not synonymous with the words “for which the public servant cannot satisfactorily account” under Section 13(1)(e) of the 1988 Act and have different meaning, scope and requirements.

While the expression “known sources of income” refers to the sources known to the prosecution, the expression “for which the public servant cannot satisfactorily account” refers to the onus or burden on the accused to satisfactorily explain and account for the assets found to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. Section 106 of the Evidence Act, 1872 applies.

The explanation to Section 13(1)(e) of the 1988 Act is a procedural Section which seeks to define the expression “known sources of income” as sources known to the prosecution and not to the accused. The explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and rowing investigation and enquire into the alleged sources of income which the accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have but are not legal or have not been declared.

The first part of the explanation refers to income received from legal/lawful sources. The second part of the explanation does away with the need and requirement for the prosecution to conduct an open ended or rowing enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the 1988 Act. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out the known sources of income of the accused public servant.

The undeclared alleged sources are by their very nature expected to be known to the accused only and are within his special knowledge. The accused, however, cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the CrPC. At the stage of Section 239 of the CrPC, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless.

[State v. R. Soundirarasu, 2022 SCC OnLine SC 1150, decided on 05.09.2022]


*Judgment by: Justice JB Pardiwala


For State: AAG V. Krishnamurthy

For accused: Senior Advocate Dr. K. Radhakrishnan

Rouse Avenue
Case BriefsDistrict Court

   

Rouse Avenue District Courts, Delhi: In a case relating to illegal interception/monitoring of telephone calls of National Stock Exchange ‘NSE' employees by iSec Services Pvt. Ltd, a privately owned company under the guise of contract of Study of Cyber Vulnerabilities, whose approval was given by Chitra Ramakrishna (‘applicant') and paid Rs. 4.54 crore to iSec Services as a consideration thus, attracting various offences under different statutes, Sunena Sharma, J. denies bail to the applicant as the material placed on record was sufficient to prima-facie show that the applicant was the major role player in the entire conspiracy as well as in projection of proceeds of crime as untainted money.

The applicant was associated with NSE as Deputy Managing Director/Joint Managing Director/Managing Director of NSE during the period of offence between 2009-2017 and said illegal activities ceased to exist after the applicant demitted office as Managing Director.

In the instant case, the applicant in connivance with Ravi Varanasi, Vice President NSE and Mahesh Haldipur (Head Premises) conspired together with iSec Services for illegal tapping of phone calls and snooping of NSE's employees under the guise of a legal contract which was given the name of Study of Cyber Vulnerability.

The telephone numbers to be monitored were purportedly identified by the applicant and conveyed to Ravi Varanasi who in turn provided the same to Mahesh Haldipur who further gave it to iSec. The suspicious numbers identified by the applicant were given to iSec to be put on recording and iSec used to prepare the transcripts of the recorded conversation of said numbers and share it with the applicant and other top officials of NSE.

Central Bureau of Investigation registered FIR under Section 120-B read with Section 409 & 420 of Penal Code, 1860 (‘IPC'), Section 20, 21, 24 & 26 of Telegraph Act, 1885, Section 3 & 6 of Wireless Telegraphy Act, 1933, Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988 and Section 69-B, 72 & 72-A of Information Technology Act, 2000 against iSec Services Pvt. Ltd. & other accused persons including the applicant.

The Enforcement Directorate (‘ED') also registered a case under Prevention of Money Laundering, 2002 (‘PMLA') for the offence of money laundering as defined under Section 3 and punishable under Section 4 of PMLA. The warrants were issued and the applicant was arrested by ED. Thus, present bail application was filed under Section 439 Criminal Procedure Code (‘CrPC') read with Section 45 of PMLA, 2002.

Placing reliance on Rohit Tandon v. Enforcement Directorate, (2018) 11 SCC 46, Anirudh Kamal Shukla v. Union of India 2022 SCC Online All 176 and Ranjitsing Brahmajetsing Sharma v. State of Maharashtra (2005) 5 SCC 294, the Court noted that monetary loss was caused to NSE by allowing the iSec to gain money out of illegal tapping of phone calls by using the direct lines of MTNL and for said purpose software and hardware of recording/monitoring server which was purchased by iSec for NSE from Nexco Techno Solution, were allowed to be installed in the upper basement of NSE building, under the guise of a legitimate contract of Study of Cyber Vulnerabilities. It is only with the active assistance and help of applicant and other top officials of NSE, that the iSec was able to generate money to the tune of Rs. 4.54 crores and give it a colour of untainted money by showing it to have been through a legitimate source.

On the contention that provisions of Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988do not apply, as the applicant is not a public servant within the meaning of the provisions of PC Act, the Court rejected the contention by relying on Delhi Stock Exchange v. K.C. Sharma LPA No. 331/199 2000 Vol. XCIII DLT 2333, wherein it was held that the Central Government has deep and all-pervasive control over the functioning of stock exchanges. It was further held that to ascertain if an ‘authority or an institution of self-government' established by notification or an order of the Central Government is a Public Authority or not, the main thrust should be not upon the composition of the company but upon the duties and functions performed by it.

On the contention that the applicant being a woman is entitled to the benefit of the first proviso to Section 45 (1) PML Act, the Court rejected the contention noting that extension of said benefit cannot be claimed as a matter of right as the discretion lies with the court to exercise such powers only in suitable cases.

Thus, the Court remarked that when the alleged offences were committed, the applicant was holding key positions of DMD/MD/JD in NSE and was actively involved in all important affairs of the company. She was the one who accorded approval to the façade contract of Study of Cyber Vulnerabilities and had dominion over the properties and funds of the NSE.

Thus, the Court held that there is absolutely no reasonable ground to record that the accused/applicant is not guilty of the offence alleged against her especially at this stage when the investigation is not yet complete.

[Chitra Ramakrishna v. Directorate of Enforcement, Bail Application No 201 of 2022, decided on 29-08-2022]


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

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and Hima Kohli and CT Ravikumar, JJ has referred, the matter relating to promise of freebies by political parties as a part of their election manifesto or during election speeches, to a larger Bench after observing that,

“Freebies may create a situation wherein the State Government cannot provide basic amenities due to lack of funds and the State is pushed towards imminent bankruptcy. In the same breath, we should remember that such freebies are extended utilizing tax payers money only for increasing the popularity of the party and electoral prospects.”

The petitions have been filed on the premise that such pre-election promises, which have a largescale impact on the economy of the State, cannot be permitted. These pre-election promises are being made by political parties without any assessment of the financial implications on the State is nothing but an attempt to attract the vote bank. This goes against the spirit of responsible electioneering and is adversely affecting free and fair elections. This severely affects the level playing field between the different political parties. The money that is being paid by the taxpayers is ultimately being misused for political parties/candidates to gain or retain power.

Solicitor General Tushar Mehta submitted before the Court that the Union of India has a very limited role when it comes to this issue. Even the Election Commission of India has limited scope to interfere in such promises which are being made by political parties/candidates. Hence, it was suggested that the Court may constitute a Commission to consider the issue.

Some political parties objected the very maintainability of these petitions on the ground that the issues raised in these petitions relate to policy or fiscal decisions of the State, which decisions are clearly outside the scope of the Court’s jurisdiction. Submitting that the issue must be left open to the political parties, it was argued,

“It is unimaginable that any Government or Court can prescribe or curtail the rights of political parties to make such promises or announcement of schemes. The political parties which are responsible for running of the Governments are conscious and aware of the problems of the people. It was, therefore, contended by the interveners to leave the issue open to the political parties.”

Some intervenors also argued that all promises cannot be equated with freebies as they relate to welfare schemes or measures for the public good. Not only are these a part of the Directive Principles of State Policy, but are also a responsibility of the welfare state.

Senior Advocate Kapil Sibal, who’s opinion was sought by the Court, was initially of the opinion that this is a serious issue which needs to be tackled in some manner. However, subsequently, he also expressed his doubts about the appropriateness of judicial intervention on the issue.

Taking note of the issue and the submissions, the Court observed,

“There can be no denying the fact that in an electoral democracy such as ours, the true power ultimately lies with the electorate. It is the electorate that decides which party or candidate comes to power, and also judges the performance of the said party or candidate at the end of the legislative term, during the next round of the elections.”

The Court stressed on consideration of the worry of the petitioners that under the guise of electoral promises, fiscal responsibility is being dispensed with, must also be considered.

It is important to note that in S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659, the Court held that the preelection promises do not fall within the ambit of corrupt practices as specified under Section 123 of the Representation of the People Act, 1951, and issued directions to the Election Commission of India regarding framing of certain guidelines, in the absence of any legislative enactment covering the field.

In the case at hand, it was argued before the Court that the reasoning in the S. Subramaniam Balaji judgment is flawed as it has not considered various provisions of the Representation of the People Act, 1951 and that it also incorrectly implies that the Directive Principles of State Policy can override the fundamental rights under Part III of the Constitution, which is against the law settled by a Constitution Bench of this Court in  Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

The Court, hence, held that the issue requires an extensive hearing before any concrete orders can be passed.  It hence, framed the following issues and referred the matter to a 3-judge bench as the judgment in S. Subramaniam Balaji was delivered by a two-Judge Bench:

  1. What is the scope of judicial intervention with respect to the reliefs sought in the present batch of petitions?
  2. Whether any enforceable order can be passed by this Court in these petitions?
  3. Whether the appointment of a Commission/Expert Body by the Court would serve any purpose in this matter? Additionally, what should be the scope, composition, and powers of the said Commission/Expert Body?
  4. Whether the judgment in S. Subramaniam Balaji requires reconsideration?

[Ashwini Kumar Upadhyay v. Union of India, 2022 SCC OnLine SC 1098, order dated 26.08.2022]

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: Krishnan Ramasamy, J. has granted interim injunction against YouTuber Savukku Sankar, restraining him from making defamatory remarks against Electricity Minister Senthil Balaji, and has observed that, Sankar prima facie, appears to have indulged in slander having posted various videos and tweets in social media platforms namely, YouTube, Twitter, etc. with false and disreputable claims against the applicant/plaintiff, who is a political executive, and this would, prima facie stain the personal and professional reputation of the applicant in society.

The suit was filed for damages and for mandatory injunction, restraining Sankar from, in any way, making, printing, publishing, broadcasting, disseminating or circulating the statements, articles, pictures, cartoons, caricatures, sketches, tweets and videos or any other defamatory statements, which causes damage or tends to lower the reputation of the applicant on social media.

Tamil Nadu Electricity Minister V Senthil Balaji submitted that Sankar is a suspended employee of the Department of Vigilance and Anti-Corruption and claims himself as a self-styled journalist, habitually defaming all the occupants of constitutional and executive offices and used to post videos and interviews in social media platforms, like YouTube and Twitter, etc.

Balaji further submitted that Sankar had the sole intention to defame the applicant, as he continuously made wild, false and defamatory statements against the applicant to tarnish his personal and professional reputation. For instance, Sankar posted some videos on YouTube, wherein, he made erroneous allegation against Balaji that

  • he is running all the TASMAC Bars in Tamil Nadu; that

  • he provided solar power plants on payment of 20 lakhs per megawatt;

  • he, while serving as the Minister for Transport, was involved in the job scam of 200-300 crores, and that he has given 200 crores to the DMK party for election expenses.

Further, Sankar published an alleged tweet on Twitter, that a person named Baskar died mysteriously and suicide note contains Balaji's name.

The Court observed that

“In a democratic set up, no one has right to disparage the reputation of another. In this case, the respondent, prima facie, appears to have indulged in slander having posted various videos and tweets in social media”

The Court further viewed that the applicant has made out prima facie case and balance of convenience is in favor of the applicant and if interim injunction is not granted, the applicant would be put to irreparable hardship. Hence, the court granted the interim injunction in favor of the applicant, restraining the respondent from making any defamatory remarks.

The matter will next be taken up on 09.09.2022.

[V Senthil Balaji v. A Shankar, OA. No. 509 of 2022, decided on 23-08-2022]


Advocates who appeared in this case :

For V Senthil Balaji: Senior Advocate AR. L. Sundaresan

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While dealing with a corruption case, Lisa Gill, J., allowed the bail petition preferred by the petitioner against the trial upon FIR dated 24-05-2022 and held that as the trial is not likely to conclude in the near future, no useful purpose would be served by keeping the petitioner incarcerated.

The FIR was registered under Sections 7 and 8 of the Prevention of Corruption Act, 1988 on the statement of one serving Superintendent Engineer of the Punjab Health System Corporation.

Facts:

The petitioner is a dentist by profession and also is an elected representative member of the Legislative Assembly in the State of Punjab. At the time of FIR, he was holding the portfolio of the Minister of the Department of Health. As per the FIR, the Officer on Special Duty (‘OSD’) with the petitioner called the complainant to set up a meeting with the petitioner. Due to some hurry, the petitioner left the meeting telling the complainant that whatsoever is told by the OSD be deemed to be said by the petitioner.

Arguments:

The counsel for the petitioner submits that due to this falsely implicated FIR, the image of the petitioner is tarnished, and his popularity is diminished. He submits that the allegations in the FIR do not constitute an offence. He also contends that the allegations are unsubstantiated by any evidence and the entire case is set up. He contends that the entire case is based on the telephonic conversation between a person who claims to be the OSD of the petitioner and the complainant. He also submits that the petitioner has been in custody since 24-05-2022. He points out that the complainant has never asked for recovery and neither has he sought it in this case. It was brought to the notice of the Court that the petitioner has no criminal history.

The respondent contended that the OSD, in the meeting, asked for a huge amount which the complainant refused to pay as he did not have that much money and agreed upon a sum that he could arrange to save himself from harassment. The complainant also stated that he was threatened to the extent that his career would be spoiled if he refused to pay the money. The complainant also mentioned that he is about to get retired, so not to spoil it and put such a person on deputation who agrees to pay the bribe amount. Hence, the complainant through this to take action against the petitioner and the OSD.

Observation and Analysis:

The Court observed that there is no reference to any evidence on record except for the said conversation. On the information given by the Advocate General, Punjab, the Court observed that the investigation is complete, and it is verified that the petitioner does not have any criminal record. Hence, the Court while allowing this petition held that the trial is not likely to conclude in the near future and no useful purpose would be served by keeping the petitioner incarcerated any longer.

[Vijay Singla v. State of Punjab, 2022 SCC OnLine P&H 1858, decided on 08-07-2022]


Advocates who appeared in this case :

For the Petitioners: Mr. Vinod Ghai, Senior Advocate, assisted by

Ms. Kanika Ahuja, Advocate

Ms. Kirti Ahuja, Advocate

Mr. Edward Augustine George, Advocate

Ms. Mahima Dogra, Advocate

For the Respondent: Dr. Anmol Rattan Singh, Advocate General, Punjab, assisted by

Mr. V.G. Jauhar, Senior DAG, Punjab

Mr. Pratham Sethi, Advocate.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: M Nagaprasanna, J. quashed the proceedings initiated against a public servant working as an Executive Engineer in the Karnataka Power Transmission Corporation Limited, (‘the petitioner') as the entire process initiated by the Anti-Corruption Bureau (‘ACB') is contrary to the law. This is due to no preliminary inquiry being conducted as was necessary, moreover, source information report was prepared in haste without following necessary steps and disproportionate assets being alleged are displayed on the source report as zero. The dates in the present case are of significance.

A crime was registered against one J. Jnanendra Kumar on 15-03-2022 in connection with which the house of one Munavar Pasha was searched as preliminary enquiry conducted by the ACB. While searching the house of Munavar Pasha two travel bags and one carton box, neither belonging to Munavar Pasha nor J. Jnanendra Kumar were found. They allegedly belonged to the petitioner. The ACB immediately prepared a source report, registered an FIR and conducted searches in the house and office of the petitioner on 17-03-2022. The house of the petitioner was searched on the basis of FIR registered on 16-03-2022 for offences punishable under Section 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988 Act (‘PCA, 1988') after drawing up a source information report which also was prepared on 16-03-2022. The proceedings emanating from this FIR form the subject matter of the instant petition.

What is a Source Information Report (‘S.I.R')?

A source information report is a report which forms the basis to charge a public servant with Section 13(1) PCA, 1988 which deals with criminal misconduct, and being in possession of assets disproportionate to his known source of income. Thus, the report in corruption parlance is a source information report. The preparation of S.I.R is the responsible work of a responsible officer i.e., Inspector of Police, under the guidance and supervision of a superior police officer, a Deputy Superintendent of Police and it has to be drawn up after calculating entire period of service of a public servant and arrive at a conclusion albeit, prima facie, that he has amassed wealth disproportionate to his known source of income.

The Court noted that on perusal of the SIR, the column total years of service of the petitioner reads ‘not yet ascertained’. Therefore, the ACB did not even know how many years of service a public servant has put in. The check period which is the most important ingredient of a source information report is left vague by stating ‘from the date of joining service to till date'. Wife's designation, salary particulars, Annual Property Returns (‘APR') etc. are not even looked into. The official income that is petitioner's salary and petitioner's wife's salary read as ‘yet to be ascertained’. The value of total property is mentioned, and the percentage of disproportionate income is zero as it is left completely blank. It is this source information report that becomes a FIR under Section 13(1)(b) and 13(2) PCA, 1988. Section 13(1)(b) PCA, 1988 deals with criminal misconduct against a public servant. The basis being the source information report, it is trite that the report assumes a great significance while imputing allegations of criminal misconduct.

Thus, placing reliance on P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, Lalita Kumari v. Government of UP, (2014) 2 SCC 1 and Charansingh v. State of Maharashtra, (2021) 5 SCC 469, the Court observed that the Anti-Corruption Bureau which performs a very significant role in checking corruption amongst public servants cannot indulge itself in such casual act of drawing up the source information report on the instant, registering the FIR and conducting the search. The entire narration of the allegation which would become criminal misconduct against the petitioner is on the basis of the records found in somebody else's house in connection with someone else's crime. Such a source information report against the petitioner is no report in the eye of law.

The Court concluded that there was no preliminary inquiry worth the name that was even conducted by the ACB in the case of the petitioner as every act of the ACB i.e., preparation of the source information report, registration of FIR and conduct of search on the house of the petitioner have all happened on one single day — 24 hours.

The Court thus held it was a fit case, where “the Court cannot turn a blind eye to the plea of petitioner for exercise of jurisdiction of this Court under Section 482 Criminal Procedure Code and obliterate registration of crime against the petitioner.”

[K R Kumar Naik v. State, WP No. 7911 of 2022, decided on 26-06-2022]


Advocates who appeared in this case :

Satish K, Advocate, for the Petitioner;

Manmohan PN SPl. PP, Advocate, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of G.S. Patel and Gauri Godse, JJ. dismissed an appeal which was filed assailing an order dated 05-09-2005 by Single Judge who had upheld a labour court award that confirmed the termination of his services.

Appellant was a bus conductor with the Maharashtra State Road Transport Corporation Pune Division (“MSRTC”) and while he was on duty on 12-12-1995 the inspections squad found that he had wrongly punched the tickets. There was an excess amount of Rs. 24.90 in his possession. The charge-sheet was issued to him and after conducting an inquiry, his services were terminated. He filed a complaint under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 (“MRTU and PULP Act 1971”). He ultimately withdrew this. He then again filed complaint under the same Act which also withdrawn. Then he raised an industrial dispute, and a reference came to be made to the Labour Court under Section 10(1) and 12 (5) read with Section 2A of the Industrial Disputes Act 1947. The Labour Court allowed both sides to lead evidence. An award was passed dismissing his reference. Consequently, the writ petition was filed assailing Labour Court’s award. The argument by the counsel of the petitioner was about the disproportionality of the punishment.

The Court remarked that, “As to the generality of the proposition that proportionality is crucial in any decision making process, there cannot be any doubt. But this does not mean that every infraction has to be allowed to be got away with just a slap on the wrist, as it was. When one assesses the doctrine of proportionality, one looks not only at the immediate cause inviting punishment but also at the entire context and, in a given case, a pattern or a history of conduct especially past conduct.”

The Court went on to explain in detail the reasoning given by the Labour Court and the Single Judge in the further petition. It was explained that the Single Judge had read the order of the Labour Court and noted that this was not a first or an isolated instance. In 1980, about fifteen

years earlier Sonawane was terminated because at that time he had failed to issue tickets to passenger after collecting fare. He was reinstated. Six years later in 1986 three increments were withheld because of absenteeism. In 1991, he was terminated because he was found to be reissuing tickets and it is at that time that a lenient view was taken reinstating him. In 1994, his annual increment was withheld for two months.

The Court agreed with the Single Judge’s reasons to not interfere with the order of the Labour Court.

“There is such a thing as too much leniency. The approach in this country of believing that when one works for government no action can ever be taken no matter how persistently one is found to be doing wrong is an approach that needs to now stop as fast as possible.”

The appeal was dismissed.

[Jaising Nivrutti Sonawane v. Maharashtra State Road Transport Corporation, 2022 SCC OnLine Bom 1570, decided on 21-07-2022]


Advocates who appeared in this case :

Mr RV Govilkar, with Mihir Govilkar & S Khan, Advocates, for the Appellant;

Mr GS Hegde, with PM Bhansali, Advocates, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a highly controversial extortion case of about Rs. 200 crores in Delhi’s Tihar jail, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., has directed conman Sukash Chandra to reveal names of the persons involved in the alleged crime syndicate.

The petitioner, Sukash Chandra Shekhar-infamously known as Conman Sukash for extorting about Rs 200 crores while sitting in a cell of Delhi’s Tihar jail-had filed the instant petition under Article 32 of the Constitution alleging that he was subjected to threats and was a victim of extortion racket run by some of the officers of the prison where he is presently lodged. Asserting that his health and safety are in danger, he has prayed for various reliefs including his transfer from Tihar jail.

Earlier, by the order dated 17-06-2022, the Court had directed the authorities concerned to suggest the appropriate jail for transferring conman Sukash to which the respondents had suggested that Mandoli jail in Delhi, which is guarded by paramilitary forces, would be appropriate. However, the respondents had pressed that shifting of the petitioner from Tihar Jail is unwarranted. Similarly, the Enforcement Directorate had also approached the Court seeking vacation/recall of order dated 17-06-2022.

On the contrary, the Commissioner of Police, NCT of Delhi (Respondent 2) asserted that while being inside Tihar Jail, the petitioner was running a crime syndicate and was paying approximately Rs. 1.5 crores every month for getting certain facilities, including mobile phone, without any hindrance, to pass messages to the members of his syndicate. It was further alleged that some of the jail officials were on a monthly payroll of the petitioner.

Relying on the assertions made by Respondent 2, counsel for the petitioner, Senior Advocate R. Basant submitted that Respondent 2 itself had accepted that the jail officials were receiving certain money from and on behalf of the petitioner. It was further submitted that during the period between July, 2020 to August 2021, the amounts paid by the petitioner or on his behalf aggregated to about Rs. 12.5 crores, major part of which was in cash.

However, on being asked by the Court as to who were the persons who made payments on behalf the petitioner, the petitioner expressed his inability to respond to the query immediately, only to add later that the persons could be identified from the affidavit submitted in reply. The Court noted,

“If we go by the assertions made in the affidavit in response, while being in jail, the petitioner was able to garner support from outsiders who paid Rs. 12.5 crores on his behalf to the public servants or other interested persons.”

Opining that in order to come to the conclusion, whether the petitioner was subjected to extortion (as asserted in the petition) or he was running a crime syndicate and was bribing his way through (as asserted by the respondents), it would be necessary to understand the identity of the persons and the manner in which they made the payments on behalf of the petitioner, the Court directed the petitioner to submit a list of persons, giving all the details as to the payments made by any and every one of them and to whom the payments were made.

The matter is listed on 26-07-2022 for further hearing.

[Sukash Chandra Shekhar v. Union of India, 2022 SCC OnLine SC 894, decided on 13-07-2022]


Advocates who appeared in this case :

AOR Aftab Ali Khan, Senior Advocate R. Basant and Advocates Ashok K. Singh, Ankita Baluni, Sandeep Kumar Bhardwaj, Deepak Kumar, Akshay Sahay, Sonakshi Monga, Tanishq Mehta, Advocates, for the Petitioners;

SG Tushar Mehta, ASG S.V. Raju, ASG K.M. Nataraj, AOR Mukesh Kumar Maroria, AOR Gurmeet Singh Makker, Zoheb Hossain, Piyush Beriwal, Rajat Nair, Sairica Raju, Swati Ghildiyal, Anand Kirti, Advocates, for the Respondent(s).

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: HP Sandesh J. while dealing with an application filed under Section 439 Criminal Procedure Code, ‘CrPC’ by Deputy Commissioner who is accused of taking bribe of Rs 5 lakh from the complainant for passing an order in his favour, took note of the inefficiencies in the investigation and remarked that if the investigation agency has failed to consider the public interest while dealing with a corruption case involving ADGP, then the Court ought to monitor the investigation in such circumstances.

The bail order was heard and dispensed vide order dated 07-07-2022 which further culminated in a transfer threat received by HP Sandesh J, who in his own words’ remarked vide order dated 11-07-2022

“Hon’ble sitting Judge came and sat by the side of me and stated that he received a call from Delhi (not disclosed the name) and said that the person who called from Delhi, enquired about me and immediately I replied that I am not affiliated to any political party and the Hon’ble Judge did not stop the same there itself and further said that ADGP is from North India and he is powerful and also gave an instance of transfer of Senior Judge of this Court to some other State and told that for no mistake on his part, he was transferred and chances of one side feeding to them”

The case details are such that on 20-5-2022, a case was filed by a complainant before the Anti-Corruption Bureau (ACB) against the Deputy Commissioner. The allegation stated that when the complainant met the DC, he instructed the complainant to meet his Personal Assistant and when he met the Personal Assistant, he demanded an amount of Rs.15 lakhs to get an order passed by the Deputy Commissioner in favor of the complainant. The amount was bargained and reduced to Rs.5 lakhs and accordingly, the amount was accepted by the Deputy Tehsildar (accused 2) who is working in the office of the Deputy Commissioner. The accused 2 filed a petition under Section 439 of Cr. P.C seeking regular bail.

When the petition was heard, the State and ACB claimed the person who has received the money is not an employee in the Deputy Commissioner’s office, but it was revealed by the Personal Assistant of the Deputy Commissioner that the person who has received the amount is working in the Appeal Section. The accused 2 said in his statement that he collected the amount as per the instructions of accused 1 i.e., the Personal Assistant.

However, the Court noted that the ACB did not register the case against the Deputy Commissioner and registered a case only against the clerk and the subordinate officials, despite there being ample material before the ACB. The Court also noted that the counsel appearing for ACB, instead of assisting the Court, submitted that this Court has to consider only the bail petition and not the other materials.

Thus, a simple bail matter highlighted various inefficiencies by the ACB which led to the Court relying on judgments Manohar Lal Sharma v. Principal Secretary 2014 SCC OnLine SC , Kedar Narayan Parida v. State of Orissa, (2009) 9 SCC 538 to observe ADGP who is representing the institution and who is in helm of affairs of ACB did not exercise his powers legally to protect the institution, thus, this Court in the interest of general public since general public are facing difficulties in the Government departments to get the work done from the below rank to the top rank without bribe and hence in the interest of general public, the Court can monitor the investigation.

Further directions were also given by the Court vide order dated 07-07-2022 regarding summoning the documents of B report filed against accused persons alleged of accepting the bribe amount, along with the B- reports filed by ACB since 2016 till date along with its current status (being pending or not).

Deputy Secretary to DPAR mentioned an illegal mining case relating back to 2009-10 against the ADGP in question, where again the investigation was not carried out in depth in respect of the involvement of various officers from the Department concerned. Thus, this Court recommended investigation and necessary action to be taken at the earliest.

The Court further passed directions in the aforesaid matter stating that Deputy Secretary to DPAR is supposed to place all the relevant materials before the Court and directed the CBI to place the report in respect of the said investigation pertaining to ADGP in the aforesaid case on the next date of hearing i.e., 11-07-2022.

The Court vide order 11-07-2022 stated that the Court found inaction on the part of the ACB while dealing with the bail matter at the last hearing and thus observed the same. It was here when the Judge mentioned the transfer threat call which has been already reproduced verbatim above.

Thus, the Court directed the Chief Secretary and DPAR to not post any tainted officer in an institution which is established to prevent corruption by analyzing the details of service records and integrity of the officer.

Even on a mention by ACB Counsel, regarding filing of SLP in Supreme Court slated to be heard on 12-07-2022, the Court further directed to communicate the order to the Chief Secretary as well as to the Secretary to the DPAR and Registrar (Judicial) to keep the further investigation materials in safe custody.

The said order however stands by the Supreme Court vide order dated 18-07-2022 after it was observed that lack of enthusiasm of ACB and ADGP in a matter are not relevant for deciding bail application of accused.

[Mahesh PS v. State of Karnataka, 2022 SCC OnLine Kar 1363, decided on 07-07-2022 and 11-07-2022]


Advocates who appeared in this case :

B L Nagesh, Advocate, for the Petitioners.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta* and V. Ramasubramanian, JJ., held that non-supply of satisfaction note to the assessee will not make the whole act of search and seizure contrary to Section 132(1) of the Income Tax Act,1961.  

Reversing the impugned decision of the Gujarat High Court, the Court held that formation of reasons to believe being an administrative act, the courts have only limited power to determine whether such reasons are whimsical or malafide, the sufficiency of the grounds which induced the competent authority to act is not a justiciable issue to be determined by courts. 

Factual Backdrop  

The appellant-assessee had transferred a sum of Rs. 10 crores to M/s Goan Recreation Clubs Private Ltd. during the financial year 2016-17. He had secured the loan by way of a mortgage of the property situated in North Goa. Thereafter, the assessee became the Director of the Company from 18-05-2016 to 23-06-2016. Later on, Rs. 10 crores were repaid and the mortgage was released on 10-07-2017. In the income-tax return filed by the assessee for that financial year, he had shown an interest income of Rs.42,51,946 which had been taxed as well. 

In the above backdrop, the Revenue had started a search and seizure operation against the assessee, suspecting that unaccounted black money was involved in the transaction since the Company stepped into the business of gaming and entertainment and launched a casino in Goa without having any adequate capital. Further, the company had made cash deposits of a total Rs.13,79,10,500 soon after demonetization.  

Grievances of the Assessee  

The assessee challenged the act of authorization for search and seizure before the Gujarat High Court on the ground that it was a fishing enquiry and the conditions precedent as specified in Section 132 of the Act were not satisfied. The assessee contended that he was not supplied with the satisfaction note as required to be disclosed in terms of Explanation to Section 132(1) of the Income Tax Act,1961  inserted by the Finance Act, 2017 with retrospective effect i.e., on 01-04-1962.  

Findings of the High Court 

The High Court found that none of the reasons to believe to issue authorization met the requirement of Section 132(1)(a), (b) and (c), hence the warrant of authorization dated 07-08-2018 issued under Section 132 of the Act was quashed. Consequently, all actions taken pursuant to such a warrant of authorization were rendered invalid.  

Whether the Revenue has Reasons to Believe 

The Revenue submitted that it was not expected to disclose to any of the members directly or indirectly involved in the cob-web of financial transactions with the core groups, viz. Sarju Sharma and associated group of companies as any inkling of action were likely to compromise the confidentiality and secrecy of the case.   

The Court noted that the detailed satisfaction note showed multiple entries in the account books of Sarju Sharma and others. Further, manner of Sarju Sharma who was either in Siliguri (West Bengal) or in Goa contacting the assessee in Ahmedabad for a loan of Rs.10 crores did not appear to be a normal transaction. Subsequent repayment of mortgage and the interest income reflected in the relevant assessment year appeared to be the steps taken by the assessee to give a colour of genuineness. Therefore, the Court opined that the Revenue had a reason to suspect that such entry was an accommodation entry and the cobweb of entries required to be unravelled including the trail of the money paid by the assessee. The Court observed, 

“The intention of the Revenue was to un-layer the layering of money which is suspected to be done by the assessee since the accommodation entry is a common modus operandi to bring the unaccounted black money to books for a brief period.”

Noting that the Revenue suspected that the investment of Rs.10 crores for a short period was not for earning interest income as the same was repaid in the same assessment year and intended to investigate the fund trail of the money paid by the assessee, the Court opined that such belief was not out of hat or whimsical.  

“The test to consider the justiciability of belief is whether such reasons are totally irrelevant or whimsical. the Court has to examine whether the reason to believe is in good faith; it cannot merely be pretence.”

Considering the reasons recorded in the satisfaction note including the investment made by the assessee for a brief period and that investment was alleged to be an accommodation entry, the Court said that it cannot be said to be such which does not satisfy the prerequisite conditions of Section 132(1) of the Act. 

With regard to non-supply of satisfaction notice to the assessee, the Court opined that such a notice would have been sufficient notice of the material against the Company and its group, to defeat the entire attempt to unearth the cobweb of the accounts by the Company and its associates. The Court opined that the Revenue may fail or succeed but that would not be a reason to interfere with the search and seizure operations at the threshold, denying an opportunity to the Revenue to unravel the mystery surrounding the investment made by the assessee.  

Hence, the Court held that the view of the High Court that the authorization to search the premises of the assessee was invalid, could not be sustained.  

Findings and Conclusion  

With a view to restate and elaborate the principles in exercising the writ jurisdiction in the matter of search and seizure under Section 132 of the Act the Court made the following observations:  

  1. The formation of opinion and the reasons to believe recorded is not a judicial or quasi-judicial function but administrative in character;  
  2. The information must be in possession of the authorised official on the basis of the material and the opinion must be honest and bona fide. It cannot be merely pretence 
  3. The authority must have a reasonable belief that the person concerned has omitted or failed to produce books of accounts or other documents; or such person is in possession of any money, bullion, jewellery or other valuable article indicating non-disclosed income;  
  4. The Courts can examine whether the reasons recorded are actuated by mala fides or on a mere pretence and that no extraneous or irrelevant material has been considered;  
  5. The question as to whether such reasons are adequate or not is not a matter for the Court to review in a writ petition. The sufficiency of the grounds which induced the competent authority to act is not a justiciable issue;  
  6. The relevance of the reasons for the formation of the belief is to be tested by the judicial restraint as in administrative action as the Court does not sit as a Court of appeal but merely reviews the manner. The Court shall not examine the sufficiency or adequacy thereof;  
  7. In terms of the explanation inserted by the Finance Act, 2017 with retrospective effect from 01-04-1962, such reasons to believe as recorded by income tax authorities are not required to be disclosed to any person or any authority or the Appellate Tribunal.  

In view of the above, the Court concluded that the High Court was not justified in setting aside the authorization of search. Consequently, the appeal was allowed and the impugned order was set aside. The Revenue was held to be at liberty to proceed against the assessee in accordance with the law.  

[Director of Income Tax (Investigation) v. Laljibhai Kanjibhai Mandalia, 2022 SCC OnLine SC 872, decided on 13-07-2022] 


*Judgment by: Justice Hemant Gupta 


Appearance by:  

For the Appellant: Balbir Singh, Additional Solicitor General  

For the Respondent: Datar, Senior Advocate  


Kamini Sharma, Editorial Assistant has put this report together 

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a bail application, after the single judge Bench of Karnataka High Court criticised the Anti-Corruption Bureau (ACB) and the Additional Director General of Police (ADGP) for their lack of enthusiasm, the 3-judge bench of NV Ramana, CJ and Krishna Murari and Hima Kohli, JJ has observed that the alleged involvement of the ADGP, and the enthusiasm (or lack thereof) of the ACB officers are irrelevant and beyond the ambit of bail proceedings.

In the case at hand, allegation have been made against the Deputy Commissioner that when the complainant met him, he instructed to meet his Personal Assistant and when the complainant met the Personal Assistant of the Deputy Commissioner, he demanded an amount of Rs.15 lakhs to pass an order in favour of the complainant by the Deputy Commissioner and the same was bargained for Rs.8 lakhs, Rs.5 lakhs and when the complainant agreed to pay a sum of Rs.3 lakhs, insisted him to pay an amount of Rs.5 lakhs and accordingly, the amount was accepted to pass an order in favour of the complainant. A person who is not an employee of the Deputy Commissioner’s office but works in the Appeal Section is said to have collected the amount as per the instructions of the Personal Assistant of the Deputy Commissioner.

Upon noticing that ACB has not taken any action against the Deputy Commissioner despite being provided with all, H.P. Sandesh, J had, in the impugned order of Karnataka High Court, observed that “the Additional Director General of Police (ADGP) is not working for the institution for which he has been appointed that too prevention of corruption for which the said institution is established”.

The High Court noticed that the ACB, only after the Court found the material, arraigned the Deputy Commissioner as accused and arrested him and also conducted the raid on the house of Deputy Commissioner. It directed CBI to place the report in respect of the investigation pertaining to ADGP in the cases pending against him on the next date of hearing.

Justice Sandesh went on to narrate an instance that happened on 01.07.2022 in Chief Justice’s Farewell Dinner. He wrote,

“A Hon’ble sitting Judge came and sat by the side of me and stated that he received a call from Delhi (not disclosed the name) and said that the person who called from Delhi, enquired about me and immediately I replied that I am not affiliated to any political party and the Hon’ble Judge did not stop the same there itself and further said that ADGP is from North India and he is powerful and also gave an instance of transfer of Senior Judge of this Court to some other State and told that for no mistake on his part, he was transferred and chances of one side feeding to them”

As shocking as these revelations were, the Supreme Court, however, observed that the impugned proceedings arose out of a bail application under Section 439 of the Cr.P.C.

“Rather than considering the bail application on its merits, the learned Judge has apparently focused on other elements which may not be relevant and are, in our prima facie view, beyond the scope of inquiry in respect of proceedings under Section 439 of the Cr.P.C.”

Considering that the valuable rights of the accused who seeks enlargement on bail under Section 439 Cr.P.C., should not be adversely affected, the Court stayed the proceedings against the ADGP for not being linked to the pleadings of the accused for bail.

The High Court will continue hear and dispose of the bail application of the said accused, expeditiously, without reference to the pendency of the Special Leave Petitions before the Supreme Court.

[Seemant Kumar Singh v. Mahesh PS, Diary No(s).20525/2022, order dated 18.07.2022]


Counsels

Tushar Mehta, SG, Nikhil Goel, AAG. Shubhranshu Padhi, AOR, Ashish Yadav, Adv, Vishal Banshal, Adv., Rajeshwari Shankar, Adv, Mukul Rohatgi, Sr.Adv., Amit Kumar, Sr.Adv., Avijit Mani Tripathi, AOR, Shaurya Sahya, Adv., Aditya Shanker Pandey, Adv,  S.Nagamuthu, Sr.Adv.,  H.S. Chandramouli, Sr.Adv, Anand Sanjay M.Nuli, Adv., M.P. Parthiban, Adv., Agam Sharma, Adv., Keerthana Nagaraj, Adv., M/S. Nuli & Nuli, AOR

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. allowed a writ petition and issued several directions setting aside the compulsory retirement of the petitioner from judicial services.

Petitioner had joined Madhya Pradesh Judicial Services as a Civil Judge Class-II on 25-10-1985. He was promoted to the Higher Judicial Services on 09-06-1997 and was designated as permanent on 03-01-2002. He was appointed to the Junior Administrative Grade on 09-06-2002. On 13-02-2003, a memorandum of charges was served on the petitioner while he was posted as an Additional District and Sessions Judge, Begumganj, District Raisen. High Court of Madhya Pradesh (Respondent 2) proposed to hold a departmental enquiry against him under Rule 14 (IV) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. The charges against the petitioner were related to certain judicial orders passed by him between 21-06-2001 to 12-08-2002 when he was posted as an Additional District and Sessions Judge at Guna.

The Enquiring Officer submitted his detailed report to the Disciplinary Authority exonerating the petitioner from all the charges. On 18-11-2005, a show cause notice was issued to the petitioner by the High Court indicating that the High Court disagrees with the findings of the Enquiring Officer. Later, an impugned order was issued to the petitioner compulsorily retiring him from service. Thus, instant writ petition was filed.

Counsel for the petitioner contended that the act of the respondents was erroneous and liable to be interfered with. That even though, the Enquiring Officer held that the charges have not been proved, the Disciplinary Authority reversed the same. It was also contended that even after making a request there was no grant of opportunity of a personal hearing to the writ petitioner.

The Court failed to appreciate the findings of the Disciplinary Authority. The Court opined that even according to the Disciplinary Authority, the grant of bail is in violation of the mandatory provisions, the same may reflect upon the competency of the Judge in understanding the law. It cannot lead to a conclusion that he is either corrupt or the order has been passed for extraneous consideration.

There may be a possibility that the concerned Judge has either misread the evidence or has applied it wrongly. At the most it only reflects upon his judicial competency and not that he is either corrupt or the order has been passed for extraneous consideration.

The Court further noted that the Enquiring Officer came to the conclusion that the writ petitioner may have been lenient in the grant of adjournments. The Court failed to understand as to how the Disciplinary Authority comes to a conclusion that the leniency shown by the Judges to the Bar requires to be ascertained in a microscopic examination.

One really does not know as to what happens when an adjournment is sought for. It is not proper to come to a conclusion that only because an adjournment has been granted, the integrity of a Judge has to be doubted.

The Court was unable to find any noting by any authority regarding his integrity, consequently the Court held that there wasn’t any valid reason for the Disciplinary Authority to reverse the findings of the Enquiring Officer and that the Disciplinary Authority committed a gross error in reversing the findings of the Enquiry Officer. The Court issued the following directions while allowing the petition:

(i) The order passed by the Disciplinary Authority dated 18.11.2005 (Annexure P/4) and the impugned order dated 12.05.2006 (Annexure P/10) compulsorily retiring the petitioner from services are hereby set aside;

(ii) The petitioner shall be entitled to 25% of the arrears of pay from the date of dismissal namely compulsory retirement w.e.f. 12.05.2006 upto the age of superannuation;

(iii) The respondents to rework his salary, his entitlements and all his retiral benefits accordingly;

(iv) He is entitled for re-fixation of his pay, pension and all related issues as a consequence of this order;

(v) The same shall be paid to the petitioner within a period of four months from the date of receipt of a copy of this order.

[K.C. Rajwani v. State of Madhya Pradesh Law & Legislative Affairs, 2022 SCC OnLine MP 1550, decided on 23-06-2022]


Advocates who appeared in this case :

Mr Brian Da’Silva assisted by Mr Abhishek Dilraj, Advocates, for the Petitioner;

Mr Suyash Thakur, Advocate, for the Respondent 1;

Mr Ashish Shroti, Advocate, for the Respondent 2.


*Suchita Shukla, Editorial Assistant has reported this brief.

by Shubham Priyadarshi
Op EdsOP. ED.

Introduction

On 10-12-2021, in a televised interview, the former Chief Justice of India (hereinafter “CJI”), Justice Ranjan Gogoi, when asked about whether there exists corruption in the Supreme Court of India (hereinafter “the Court”), he was quoted as saying, “corruption is as old as society. It has become a way of life, an acceptable way of life. And Judges do not fall from heaven.” This statement invited comments, which criticised the former CJI. There has also been a call for initiation of contempt proceeding against him for the comments he made, because if that is not done, the ultimate result could be the eternal erosion of public faith in the institution of the judiciary.2

This incident is but one manifestation of the problem that permeates through the exercise of the power of contempt, and it is the power of contempt that is the subject of this article, which is structured as follows: the author will first elucidate the meaning of the term “contempt”, and trace the origin of the power; second, the author shall briefly mention the characteristics of the pre-independence statute and why the provision of contempt of court was incorporated as a reasonable restriction in Article 19(2) of the Constitution of India3 (hereinafter, “the Constitution”); third, the author shall discuss the Report of the Sanyal Committee and the provisions of the existing statute, and why a challenge thereto would not have made much of a difference; fourth, the author shall enumerate the conditions, as laid down by the Court, to determine the validity of a reasonable restriction, and show that the statutory status quo criminalising contempt of court cannot be reasonably accommodated in the present constitutional scheme; and finally, the author shall discuss that one of the important purpose which is sought to be achieved through contempt proceedings can and has always been achieved by another method.

Comprehending the meaning and tracing the origin

Judiciary has been considered the custodian of the Constitution and is entrusted with deciding disputes arising from adverse claims. To effectively perform the duties entrusted to the sentinel, the dignity and authority of the court as an institution must be respected and protected. However, juxtaposed with the other two branches of the Government, the courts appear to be the weakest, as they control neither the sword nor the purse. And thus, to compel obedience where it is not otherwise forthcoming but is nevertheless necessary, the courts have been vested with the power to punish those recalcitrant entities who flout the directions (of the court), referred to as power to punish for contempt.4

In general parlance, contempt is either a feeling or an act manifesting that feeling through which one does not respect someone or something.5 A perusal of legal literature gives us the following meaning of contempt of court, as understood in common law:

An act or omission calculated to interfere with the due administration of justice. This covers criminal contempt (that is, acts which so threaten the administration of justice that they require punishment) and civil contempt (disobedience of an order made in a civil cause.6

Reference to common law is necessary because if one traces the origin of the concept of contempt of court, leading back to the annals of the House of Lords and the alleyways of England. The phrase contemptus curiae has been used in English Law for eight centuries.7 Law conferred the power to enforce discipline within its precincts and punish those who failed to comply with its orders. In other words, the contempt jurisdiction was evolved to meet the need of tackling intheface contempt. In the twelfth century, the contempt of the king’s writ was mentioned as an offence in the laws of King Henry I. In the same laws, there was mention of pecuniary punishment for contempt or disregard of orders. In England, for centuries, contempt of court has been a recognised expression and initially applied to defaults and wrongful acts.8 Because of the increase in the number and the complexity of disputes, the judiciary took over the role as the final arbiter of justice from the sovereign. The courts thus came to be considered representatives of the king. And in the same way that the king could not be abused or scandalised because the king was understood to have been an incarnation of God and wielder of divine justice, and no one would have the thought of obstructing a proceeding with impunity, the same considerations applied to the courts.9

Justification of contempt of court in modern times is found in the observations of Wilmot, J. in Rexv. Almon10. In that case, Almon was a bookseller who was tried in 1765 for publishing an alleged libel about Lord Mansfield. One of the charges Almon made against Lord Mansfield related to a court action involving Wilkes. Due to some confusion, the action was abandoned, and the opinion was never delivered. However, at a later point in time, Wilmot, J.’s son got his father’s opinion published, which has become one of the most crucial pieces of observation on the topic:

The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt to the court acted in the face of it… and the issuing attachments by the Supreme Courts of Justice in Westminster Hall for contempt out of court stands upon the same immemorial usage as supports the whole fabric of the common law; it is as much the lex terrae and within the exception of Magna Carta as the issuing [sic] any other legal process whatsoever. I have examined very carefully to see if I could find out any vestiges or traces of its introduction but can find none. It is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it and therefore (it) cannot be said to invade the common law, but to act in an alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society.11

The present position in England is reflected by Spycatcher case12. The Daily Mirror levelled criticism in the harshest manner against the Judges when they had imposed an embargo on the memoir of a former intelligence officer on the ground that it revealed sensitive information. The paper wasnot held in contempt, despite calling Judges old foolsand posting a photo of them upside-down to represent that they were not thinking straight. When asked about it, Lord Templeman said that Judges in England took no notice of personal insults unless it was done with malice. Recently, in the fallout of the Brexit case, The Daily called the Judges enemy of the people and still wasnot held in contempt.13

Unfortunate incorporation of a colonial practice as reasonable restriction

In an unfortunate, albeit not an unexpected development, while elsewhere, there was discussion about tackling the arbitrariness in power to punish for contempt,14 in colonial India, it was given a new lease of life through the Contempt of Courts Act, 1926. One of the avowed objectives of this legislation was to address the issue of uncertainty and ambiguity concerning the exercise of contempt jurisdiction with respect to subordinate courts to the respective High Courts.15 However, the Act did not merely clear (some) confusion concerning contempt of subordinate courts, it also provided a legislative base for officers of the British Raj to curtail criticisms, irrespective of merits of same, which were being levelled against the malfunctioning judiciary. Despite certain inherent infirmities in the language of the 1926 Act,16 it remained in force till the framing of the Constitution.

This led to a potentially conflictingsituation. The Constitution contains the fundamental right to freedom of speech and expression. In addition, Article 13(1) of the Constitution17mentions that if there were to be any existing law (immediately before the commencement of the Constitution), insofar as they are inconsistent with the provisions of Part III of the Constitution (fundamental rights), that law would be unconstitutional to the extent of the inconsistency. It is self-explanatory that criminalising contempt of court curtails the right contained in Article 19(1)(a) of the Constitution. To avoid this conflict, a suggestion was put forth that the phrase “contempt of court” must be added as a reasonable restriction in Article 19(2) so that the 1926 Act remains constitutionally permissible.18 Moreover, under Articles 12919 and 21520 of the Constitution, both the Supreme Court and the High Courts were given the status of a court of record. Once a court is made a court of record, it is a legal necessity which flows from the fact of its being a court of record, that both will have the power to punish for contempt of itself.21

However, apprehensions were raised by members of the Constituent Assembly, with one member questioning the prudence behind the incorporation of contempt of court as a restriction in the following words:

First of all, let me state that this is not a consequential amendment. This is a fundamental proposition…. We know about this contempt of court, how the Judges have been exercising their powers in the past, as if they are infallible, as if they do not commit mistakes…. I cannot understand why my lawyer friends are very lenient to the Judges. After all, Judges do not have two horns; they are also human beings. They are liable to commit mistakes. Why should we show so much leniency to them? We must safeguard the interest of the public.22

The last statement is most significant. India was ushering into a new era in which we, the people,gave the Constitution to ourselves. But the Constitution incorporated a colonial practice that restricted the most cherished liberty, and how the courts have interpreted the provisions has only accentuated an already existing problem.

Exacerbating the problem

After the Constitution came into force, the Contempt of Courts Act, 195223 was enacted to repeal and replace the 1926 Act. The 1952 Act, while largely re-enacting the provisions in the 1926 Act, made two critical changes: first, by defining the expression “High Court” to include courts of Judicial Commissioners, the 1952 Act cleared the ambiguity regarding the power of High Courts to punish the contempt of subordinate courts; second, the 1952 Act gave more teeth to the courts by making it clear that the High Court (including the courts of Judicial Commissioners) would have jurisdiction to inquire into and try contempt of itself or any court subordinate to it, irrespective of whether the person alleged to be guilty of contempt was within or outside such limits.24

In July of 1961, a committee was set up under the chairpersonship of H.N. Sanyal, the then Additional Solicitor General, to submit a report, inter alia, on whether the provision relating to power for punishing for contempt of court was in accordance with constitutional limitations and if not, how the same can be achieved. The Committee, in its report, mentioned that the law of contempt must be harmonised with the constitutional guarantee of freedom of expression and personal liberty. To ensure that provisions relating to the same complied with constitutional requirements, the Committee focused on procedural propriety, specifically regarding doing away with summary proceedings with respect to contempt of courts, which wasnot done in the face of courts.25

As per the Contempt of Courts Act, 197126, contempt of court has been segregated into two categories, civil and criminal. With respect to the former, the author humbly agrees with the views of the Sanyal Committee in which it is mentioned that insofar as civil contempt pure and simple is concerned, it does not attract any considerations affecting the fundamental right of freedom of speech because it is obvious that the courts should be clothed with adequate powers to enforce their orders.27 Also, even a bare reading of Section 2(b) of the 1971 Act28 is enough to suggest that not only elements of what is required to constitute civil contempt are categorically laid down, but the element of even mens rea is also present. Unfortunately, the same is not the case concerning criminal contempt in which, as per the definition given in the Section 2(c) of the 1971 Act29, the element of mens rea is not necessary. The definition is couched in broad terms, for which the Committee envisaged that the broad terms would be used as a guide by both the public as well as the courts.30

In 2020, a petition was filed challenging the constitutional validity of Section 2(c)(i) of the 1971 Act31, which criminalises the act of someone if that act scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court.Even assuming the provision was held to be unconstitutional, it wouldnot have made much difference. The Act only outlines the procedure in relation to investigation and punishment for contempt, and deletion of the offence from the Act will not impact the inherent constitutional powers of the superior courts to punish anyone for its contempt.32 The constitutional courts, both the Supreme Court and the High Courts, will still have the power to punish for contempt by virtue of their being a court of record, a power which also extends with respect to subordinate courts, which in turn signifies that any substantive change in the provisions of the Act will not impact the power of the constitutional courts to punish for contempt.33

Furthermore, while exercising this power, it can only be governed by broad guidelines that will help to determine whether the contempt has been committed or not because, according to the Supreme Court, laying down exhaustive considerations for determination would be a complex and baffling exercise.34 This, the author submits, is the most problematic part of the power to punish for criminal contempt and why it must be deemed unconstitutional, in the present state in which it exists. Because there are no specific guidelines in this regard, there is a considerable discrepancy between what constitutes contempt and what doesnot. For example, a former law minister who says that antisocial elements, bride-burners, and a whole horde of reactionaries have found their haven in the Supreme Court didnot constitute contempt. Still, when an author levelled criticisms, which continued in affidavits, she was denied the benefit of the previous precedent as she lacked special knowledge in the subject, despite her tone being more reverential than the former.35

Finding a (non-existent) justification

Any restriction, in order to be considered reasonable and thus constitutionally permissible within the scope of Article 19(2) must meet a few prerequisites. In this chapter, the author will enumerate those prerequisites and explain why the status quo regarding the contempt of court needs revamping:

  • Nature of right alleged to be infringed: In the present case, the right which is being affected the most is the right of freedom of speech and expression, which according to Justice Benjamin Cardozo, is thematrix, the indispensable condition of nearly every other form of freedom. And without it … the end result would be that the spirit of man would be mutilated and become enslaved.36
  • The underlying purpose of the action: Through criminal contempt, the object is not only to punish but also to preserve the sanctity of administration of justice and integrity of proceedings.37 Also, it has to bekept in mind that no Judge shall be scandalised in that capacity, meaning that any hostile criticism of the Judge as a Judge will be constituted as scandalising that court.38Justice Brewer had said, in 1898, that time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. The life and character of the Justices should be the object of constant watchfulness by all….39 According to the author, the separation of the two capacities (judicial and non-judicial), particularly when the two cannot be reasonably separated, is an exercise in futility.
  • Proportionality: If one analyses the effect of the provisions relating to contempt, it leads to something which is in judicial discourse referred to as producing chilling effect — a doctrine that was used first in the United States of America and applies to cases where governmental laws and governmental (or private) activities are of a nature that while not directly censoring free speech, nonetheless have the impact of self-censorship. The classic example is that of excessively vaguely worded libel laws.40Justice V.R. Krishna Iyer famously remarked that the law of contempt has a vague and wandering jurisdictionwith uncertain boundaries. Regardless of the public good, it may unwittingly trample upon civil liberties.41 The opinion of Justice Iyer suggests that a step (contempt jurisdiction), which might or might not have a relation between objective sought to be achieved (respect for and ensuring due administration of justice), is permitted even when it is admittedly trampling down the most cherished freedom in a democracy. Resultantly, if the relationship between the measure taken and the objective sought to be achieved by that measure is questionable, it logically follows that the adverse impact on the exercise of the right will be clouded with the question of disproportionality.
  • Prevailing conditions: There have been a couple of unprecedented developments — four Judges conducting a press conference criticising the then CJI for not fulfilling his duties as master of rolls; and a former CJI becoming a Member of Parliament immediately after retirement.42 The author humbly argues that unprecedented developments which have the potential to alter the constitutional landscape of a country must be followed by unprecedented scrutiny of that institution and individuals who constitute it. In other words, the contempt provisions must be adjusted to accommodate these changes.

The Court laid down the above factors for an act of State which could be classified as law within the meaning of Article 13.43 Since the superior courts of justice are not State within the meaning of Article 1244, and consequently, their judgments not a law within the scope of Article 13,45 they are effectively doing something, which would in all probability be deemed to be unconstitutional had it been done by either of the two other branches of the State.

A question therefore arises is the legal acumen of Judges a strong enough safeguard to not be concerned about vesting in them the power of Judge, jury, and executioner as far as contempt proceeding is concerned, or exempting them from the free, sometimes uninhibited criticism, which is levelled against legislators and executives? In the words of Mr David Pannick, this criticism is rather necessary because the judiciary enjoys a security of tenure rightly denied to politicians and unique to public servants.46 Since provisions of Part III in general and Article 19(1)(a) of our Constitution in particular draw inspiration from the American Bill of Rights,47 the author will quote Frankfurter, J.:

50. … Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other person or institutions. Just because the holders of judicial office are identified with the interest of justice, they may forget their common frailties and fallibilities… Judges must be kept mindful of their limitations and their ultimate responsibility by a vigorous stream of criticism expressed with candour, however blunt.48

(emphasis supplied)

The final vindication

According to Justice H.R. Khanna:

The strongest weapon in the armoury of the judiciary is its unsullied image, the esteem it evokes and the confidence it enjoys. Reference is sometimes made to the contempt of court power of the Judges to command respect. This, perhaps, is not correct and is apt to mislead. Contempt of court, as observed by a great jurist, shouldnot be used as a means to uphold our own dignity. This must rely on surer foundation …. We must rely on our conduct itself to be its own vindication.49

(emphasis supplied)

For example, the Court’s conduct during the Covid-19 Pandemic has not been considered its own vindication.50 By listing a pending suo motupetition of an issue which took place 10 years ago,51 after the Supreme Court didnot (for a period of multiple months) intervene to address the plight of migrant workers,52 and was conducting its proceeding through virtual hearings and listing urgent matters,53 the Court only fanned the flames of apprehensions which were raised in the Constituent Assembly, apprehensions which have persisted, and apprehensions which, with the passage of time, are gradually being affirmed.

The assertion of Justice Khanna receives still further backing by a contrasting example. One of the major criticisms against judiciary is the opaqueness in its modus operandi. Recently, the High Courts across the country have started to livestream their courtroom proceedings. This step has received almost54unanimousapproval from every section of the society, as the High Courts have allowed the sunlight, now both literally and figuratively, to enter the courtrooms, which has been considered to bethe best disinfectant.55

Thus, it would appear that the judiciary has two diverging routes to the same destination: either endeavouring to compel the citizenry to respect it by the threat of the sword of Damocles,56 which is the power of criminal contempt, and which, at best, is not always effective; or in the alternative, to place its reliance on a much surer foundation.57


* Lawyer, Patna. Author can be reached at <shubhampriyadarshi@hotmail.com>.

The author acknowledges work of  Mr. Rishikesh Kumar for his input on the article.

2. Dushyant Dave, “Graft Talk and the Top Court’s Inexplicable Silence”, The Hindu (2022), <https://www.thehindu.com/opinion/op-ed/graft-talk-and-the-top-courts-inexplicable-silence/article38341236.ece>.

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

4. Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution (1st Edn. 2018) p. 238.

5. Contempt : Definition & Meaning, Merriam-Webster, <https://www.merriam-webster.com/dictionary/contempt>.

6. Shakil Ahmad Khan, Ed., P. Ramanatha Aiyar’s The Law Lexicon: The Encyclopaedic Law Dictionary (5th Edn. 2020).

7. M. Karnikka, “Law regarding Contempt of Court”, Lexlife India (2020), <https://lexlife.in/?s=Law+regarding+Contempt+of+Court>.

8. Ronald Goldfarb, The History of the Contempt Power, 1961 Wash. U. L. Q. 1-29 (1961), <https://openscholarship.wustl.edu/law_lawreview/vol1961/iss1/6>.

9. Rahul Donde, “Uses and Abuses of the Potent Power of Contempt”, 42(39) Economic and Political Weekly, 3919-3922 (2007).

10. 1765 Wilm 243 : 97 ER 94.

11. Ronald Goldfarb, “The History of the Contempt Power”, 1961 WASH.U.L.Q. 1-29 (1961), <https://openscholarship.wustl.edu/law_lawreview/vol1961/iss1/6>.

12. Attorney General v. Guardian Newspapers Ltd. (No. 2), (1990) 1 AC 109 [Spycatcher case].

13. Faizan Mustafa, “Contempt Jurisdiction should be used Sparingly”,TheTribune (2019), <https://www.tribuneindia.com/news/archive/comment/contempt-jurisdiction-should-be-used-sparingly-744801>.

In the United Kingdom, the offence of scandalising the judiciary as a form of contempt of court in 2013 has been abolished based on UK Law Commission’s recommendation that the law was vague and not compatible with the freedom of speech. Also see Manu Sebastian, “Contempt By ‘Scandalizing The Court’ : A Battle Of Perceptions On An Uneven Field”, Livelaw.in (2020), <https://www.livelaw.in/columns/contempt-by-scandalizing-the-court-a-battle-of-perceptions-on-an-uneven-field-160380>.

14. Dinesh Singh Chauhan, “The Historical Perspective of the Contempt of Courts in India”, Legal Service India, <https://www.legalserviceindia.com/legal/article-2815-the-historical-perspective-of-the-contempt-of-courts-in-india.html>.

15. H.N. Sanyal, Report of the Committee on Contempt of Courts (1963).

16. A primary infirmity with the 1926 Act was that it didnot define the term “contempt”. It was a deliberate act to keep the term elastic and extend the applicability of the 1926 Act, V. Venkatesan, “Truth as a Defence: How Effective is the Amendment of Contempt of Courts Act?”, 2 Indian Journal of Constitutional Law 164-178 (2008).

17. Constitution of India, Art. 13(1).

18. Samaraditya Pal and Deepan Kumar Sarkar, India’s Constitution: Origins and Evolution, Vol. 2 (1st Edn. 2015). For arguments in the Constituent Assembly favouring the incorporation of contempt of court as a reasonable restriction, see Note 13, at 46.

19. Constitution of India, Art. 129.

20. Constitution of India, Art. 215.

21. Samaraditya Pal and Deepan Kumar Sarkar, India’s Constitution: Origins and Evolution, Vol. 6 (1st Edn. 2017).

22. Samaraditya Pal & Deepan Kumar Sarkar, India’s Constitution: Origins and Evolution (1st Edn. 2015) p. 48, Note 13 at 45.

23. Contempt of Courts Act, 1952.

24. H.N. Sanyal, Report of the Committee on Contempt of Courts (1963).

25. H.N. Sanyal, Report of the Committee on Contempt of Courts (1963).

26. Contempt of Courts Act, 1971.

27. H.N. Sanyal, Report of the Committee on Contempt of Courts (1963).

28. Contempt of Courts Act, 1971, S. 2(b).

29. Contempt of Courts Act, 1971, S. 2(c).

30. H.N. Sanyal, Report of the Committee on Contempt of Courts (1963).

31. Contempt of Courts Act, 1971, S. 2(c)(i).

32. Roshni Sinha, “Review of the Contempt of Courts Act, 1971”, PRS Legislative Research (2018), <https://www.prsindia.org/report-summaries/review-contempt-courts-act-1971>.

33. T. Sudhakar Prasad v. Govt. of A.P., (2001) 1 SCC 516.

34. S. Mulgaokar, In re, (1978) 3 SCC 339. In this case, the Court has laid down broad guidelines for drawing a balance between the two competing interests: exercise of right to freedom of speech and expression, and power of court to punish for criminal contempt. Despite, and in disregard of these broad guidelines, multiple instances show a considerable discrepancy between what the Court has considered as constituting the contempt of court and what to not. Also see Manu Sebastian, “Contempt By ‘Scandalizing The Court’: A Battle Of Perceptions On An Uneven Field”, Livelaw.in (2020); and V. Sudhish Pai, “Contempt-Anachronistic?”, Livelaw.in (2020).

35. Manu Sebastian, “Contempt by ‘Scandalising the Court’: A Battle of Perceptions on an Uneven Field”, LiveLaw.in (2020), <https://www.livelaw.in/columns/contempt-by-scandalizing-the-court-a-battle-of-perceptions-on-an-uneven-field-160380>.

36. V. Sudhish Pai, “Contempt-Anachronistic?”, LiveLaw.in (2020), <https://www.livelaw.in/columns/contempt-anachronistic-160659>.

37. Sahara India Real Estate Corpn. Ltd. v. SEBI, (2013) 1 SCC 1.

38. Manu Sebastian, “Contempt by ‘Scandalising the Court’: A Battle of Perceptions on an Uneven Field”, LiveLaw.in (2020), https://www.livelaw.in/columns/contempt-by-scandalizing-the-court-a-battle-of-perceptions-on-an-uneven-field-160380>.

39. V. Sudhish Pai, “Contempt-Anachronistic?”, Livelaw.in (2020), <https://www.livelaw.in/columns/contempt-anachronistic-160659>.

40. Gautam Bhatia, “The Chilling Effect in India”, Indian Constitutional Law and Philosophy (2013), <https://indconlawphil.wordpress.com/2013/12/05/the-chilling-effect-in-india/>.

41. Ajit Prakash Shah, “The Chilling Effect of Criminal Contempt”, The Hindu (2020), <https://www.thehindu.com/opinion/lead/the-chilling-effect-of-criminal-contempt/article32198138.ece>.

42. Previously, former CJI Justice Ranganath Misra became a Member of Parliament in the Upper House in 1998 after retiring from the office of Chief Justice in 1991. Because of the circumstances leading to it, the move to grant him a ticket met with well-merited criticism.

43. State of Madras v. V.G. Row, AIR 1952 SC 196.

44. Constitution of India, Art. 12.

45. Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

46. V. Sudhish Pai, “Contempt-Anachronistic?”, Livelaw.in (2020), <https://www.livelaw.in/columns/contempt-anachronistic-160659>.

47. Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578.

48. Bridges v. State of California, 1941 SCC OnLine US SC 144 : 86 L Ed 192 : 314 US 252 (1941).

49. V. Sudhish Pai, “Contempt-Anachronistic?”, Livelaw.in (2020), <https://www.livelaw.in/columns/contempt-anachronistic-160659>.

50. Jagdeep S. Chokkar, “Migrant Worker Crisis: The Supreme Court has Abdicated all Responsibility”, The Wire (2020), <https://thewire.in/law/supreme-court-migrant-workers-crisis-abdicate-responsibility>.

51. Abraham Thomas, “SC to Hear 10-year-old Contempt Case against Prashant Bhushan on August 4”, Hindustan Times (2020), <https://www.hindustantimes.com/india-news/sc-to-hear-10-year-old-contempt-case-against-prashant-bhushan-on-august-4/story-JNh2Z5VekowNCKgUwO3PvL.html>.

In a related incident, Senior Advocate Mr Prashant Bhushan was charged with committing contempt of court by his two tweets. He was ultimately held guilty and was directed to pay Rs 1 as a fine. For a detailed summary, see “Contempt Petition Against Prashant Bhushan”, Supreme Court Observer (2020), <https://www.scobserver.in/cases/in-re-prashant-bhushan-contempt-petition-against-prashant-bhushan-case-background/>.

52. Since then, the Court has taken up the mantle of being the sentinel on the qui vive, a conduct which has been acknowledged, and received appreciation, V. Venkatesan, “As Supreme Court Reaches Out to Migrants, Activists Hail its Intervention”, The Wire (2021), <https://thewire.in/law/supreme-court-migrant-workers-activists>. The two opposite reactions, consistent with the Court’s varying approaches to the same issue, furthers Justice Khanna’s assertion.

53. For the circular of the Supreme Court, dated 23.03.2020, see <https://main.sci.gov.in/pdf/cir/23032020_153213.pdf>.

54. For a differing perspective, see Abhik Chimni, „A Lot Can Go Wrong for Indian Democracy if Court Proceedings are Streamed Live on TV”, The Print (2018), <https://theprint.in/opinion/a-lot-can-go-wrong-for-indian-democracy-if-court-proceedings-are-streamed-live-on-tv/104639>.

55. Swapnil Tripathi v. Union of India, (2018) 10 SCC 639.

56. O. Chinnappa Reddy, “The Sword of Damocles: Contempt of Court”, Oxford Scholarship Online (2012), <https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198066286.001.0001/acprof-9780198066286-chapter-19>.

57. The author is aware that one cannot claim equality in illegality before a court of law, much less before a constitutional court. However, he humbly believes, if backed by examples, it can be a reasonable criticism. And this, to reiterate, is the author’s chief concern concerning the exercise of the power of contempt: there is way too much ambiguity regarding what constitutes contempt and what does not (Dushyant Dave, “Graft Talk and the Top Court’s Inexplicable Silence”, The Hindu (2022), <https://www.thehindu.com/opinion/op-ed/graft-talk-and-the-top-courts-inexplicable-silence/article38341236.ece> (last visited 21-4-2022); and Abraham Thomas, “SC to hear 10-year-old contempt case against Prashant Bhushan on August 4”, Hindustan Times (2020); Manu Sebastian, “Contempt By ‘Scandalizing The Court’ : A Battle Of Perceptions On An Uneven Field”, Livelaw.in (2020). Any measure which curtails fundamental rights, and is simultaneously ambiguous, must be considered unconstitutional. This vice of ambiguity ought to be removed, and the same can be done by indulging in the complex and baffling exercisewhich was mentioned elsewhere in this article [Mulgaokar, In re, (1978) 3 SCC 339] and uniformly applying the result(s) thereof, because the action of laying down broad guidelines has, as has been shown, not been able to achieve its purpose.

Op EdsOP. ED.

Introduction

After the independence of India from the British colonial rule, it was observed that Parliament by itself cannot legislate on each and every facet of certain matters nor can it directly entrust the power to the executive to enforce the same. To fill in these gaps delegation of authority and power became a necessity.

The six decades after independence have played a major role in the rapid expansion and smooth functioning of administrative activities.

The executive is given authority by the statute to use this discretion and act accordingly. An extensive power is given to the executive to choose a path of operation from numerous possible courses of action and select the best depending upon the situation. Power of discretion ensures that the administrative authority has sufficient independence and liberty in carrying out its activities.

However, to regulate the power and to ensure that this discretion is not misused, the law has established scrutiny to make certain that this discretionary power is exercised according to the guidelines of the statute.

Abuse of discretion

Power of discretion given to the administrative authority ensures that they get adequate independence and liberty in carrying out their activities. However, this discretion is often misused. Abuse of power is one of the classic concepts in administrative law. According to the classical approach, this concept is based on the assumption that the scope of discretion of public administration bodies is defined, besides competence norms, procedural and legal grounds for action, also by the objective for which the discretionary powers were granted.[1]

The abuse of discretion is done in the following manner. The administrative authority may not duly exercise the power and authority entrusted to it (sub-delegation, acting mechanically, imposing fetters on discretion, acting under dictation, non-application of mind, power coupled with duty) or they may exercise the power and authority under the coercion of another body, which may have improper motives (like abuse of power, mala fides, improper purpose, irrelevant considerations, leaving out relevant consideration, colourable exercise of power, judicial discretion, unreasonableness). This leads to biases and incorrect usage  of power delegated to such administrative authority.

The power of discretion given to the administrative authorities is a complex process. A Government may not be able to function properly without the exercise of some discretion by the officials. It is impossible to lay down the rules for every plausible aspect. This has led to conflicts as to whether there should be absolute discretion of administrative authorities or whether it should be subject to reasonable control. Giving discretionary power to the administrative authority is not wrong however, people often misuse it.

Some of the abuses of administrative discretion are as follows:

Mala fides

Mala fide is a broad term and means something done with bad intent, corrupt motive, or not in good faith. An administrative action must  be without mala fides. The burden of proof lies on the person who alleges mala fides. Malice is of two kinds i.e. malice in law and malice in fact. Malice in fact includes personal ill will, corrupt motive, spite, vengeance, and personal benefit to the authority itself.

One such situation was seen in S. Pratap Singh v. State of Punjab.[2] In this case, the appellant was a civil surgeon employed under the State Government. He was initially accorded leave in advance of his retirement but in due course of time it was cancelled, also he was given a suspension order and disciplinary action was initiated against him on the charge that he had agreed to receive a bribe of Rs 16 from some patients before going on leave. It was alleged by the appellant that the disciplinary proceedings against him were started in the wake of the personal vendetta of Pratap Singh who was then the Chief Minister of Punjab as the doctor had declined to surrender to the illicit demands of the Chief Minister and members of his family. The Supreme Court accepted the contention, held that such exercise of power is mala fide, and quashed the order.

In G. Sadanandan v. State of Kerela[3], the petitioner was a businessman dealing in the sale of wholesale kerosene oil. He was detained under Rule 30(1)(b) of the Defence of India Rules, 1962 on the ground that he was operating without a licence and dealing in kerosene illegally. The petitioner challenged the validity of the order of detention by and large on the pretext that it is mala fide. It has been passed as a consequence of malevolent and erroneous reports, devised at the order of the Deputy Superintendent of Police (DSP). The alleged reason of the Deputy Superintendent in securing the preparation of these incorrect reports was to get rid of the petitioner from the domain of wholesale kerosene oil business in Trivandrum, Kerala, so that his family members  could obtain the dealership. The Deputy Superintendent did not even file a counter-affidavit to controvert the allegations made against him by the appellant. Due to these considerations, the Supreme Court declared the order of detention to be clearly and plainly mala fide.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Similarly, in C.S. Rowjee v. State of A.P.[4], the Chief Minister of Andhra Pradesh took on a proposal of the State Government to nationalise certain bus routes. It was purported that the Chief Minister had acted with mala fide intentions while giving the instructions. The allegation against him was that the specific route way had been chosen for the reason that he sought to take revenge from the private operators on those routes because they were his political opponents. Considering the facts of the case, the Supreme Court held that the Chief Minister had mala fide intention.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Improper purpose

A statute confers discretionary powers upon an administrative authority for one purpose and if it is used for some purpose other than the one that was decided, it will not be regarded as a valid exercise of the powers and the same may be rescinded by declaring it as ultra vires. Hence, we can see that the power of discretion is not unlimited and is constricted to the objective for which the law was enacted.

Therefore, where the power is exercised for a purpose different from that specified in the statute, the court will declare the exercise of the power as ultra vires. Where the land is acquired by the Municipal Corporation ostensibly for a public purpose but in fact to enable another body to acquire it through the medium of corporation for some other purpose, the acquisition order would be quashed by the court. Similarly, where the Municipal Corporation refused to approve the construction of buildings with a view to pressurise the petitioner to provide drainage for the adjoining building, and where the construction scheme of the petitioner does not contravene any rule.

“Improper purpose” is broader than mala fides, for whereas the latter denotes a personal spite or malice, the former may have no such element. The action of an authority may be motivated by some public interest (as distinguished from private interest), but it may be different from what is contemplated by the statute under which the action has been taken. Here it is not so much relevant to assess whether the authority is acting in good faith or bad faith. What is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned.[5]

However, with time as the authorities were accorded discretion to increase the scope of their functioning, the cases of exercise of this discretion for improper purposes started increasing tremendously. In order to curb this problem and restrict this unconstrained power, the  courts can check the primal target of the statute in endowing the discretionary power. The rationale behind an administrative action should be in conformation with the legal objective.

In S.R. Venkataraman v. Union of India[6], the appellant, was a Central Government officer. She was compulsorily retired from service in “public interest” [under Fundamental Rule 56(j)(i)] on her attaining the age of 50 years. Her contention was that there was non-application of mind by the Government as they did not take into consideration her service record and that her retirement was based on extraneous circumstances, outside the extent of the Act. This was validated from the fact that there was not a thing in her service record to rationalise premature retirement. The Supreme Court revoked the order of the Government and held that in a case where discretionary power is exercised for an unauthorised purpose, the principles of good faith or bad faith stand irrelevant. An administrative order formulated on the basis of non-existent reasons or facts should be deemed to be contaminated with an abuse of power.

Irrelevant or relevant considerations

Discretionary power allows an authority to choose from alternative actions and select the most appropriate one. However, this discretionary power should always be exercised on relevant grounds and not on extraneous grounds, it should not be influenced by considerations that cannot be lawfully taken into account, in other words, all discretionary work must be in conformance to the considerations mentioned in the parent statute. If no such considerations are laid down in the statute, then power is to be exercised on the basis of the considerations relevant to the purpose for which the statute was conferred. If the authority uses this power for irrelevant cases, then the administrative action would be considered ultra vires and will be quashed.

To determine whether the considerations are relevant or irrelevant, one has to infer from the general terms of the statute.

In Barium Chemicals Ltd. v. Company Law Board[7], the Company Law Board exercising its power under Section 237 of the Companies Act, 1956[8] can order an investigation into the matters of the company if such affairs are carried out with a motive to defraud creditors or if the persons involved in the management are guilty of fraud.

Exercising this power an investigation was ordered into the affairs of Barium Chemicals Ltd. for the reason that the company was suffering continuous losses as a consequence of faulty planning and many eminent persons resigning from the Board of Directors. This order was challenged. The court quashed the order of the Board stating that these grounds were immaterial and irrelevant to the objective enshrined in the law. It did not comply with the direction of Section 236[9].

In Rohtas Industries v. S.D. Agarwal[10],  an investigation was ordered into the affairs of a firm on the grounds of misconduct by one of the leading directors. There were several complaints against him. Also shares of another company held by it, were being sold at an inadequate consideration. About the former, the Court was of the view that it was not an admissible situation. About the other ground, the Court found no evidence of the shares having been sold for insufficient remuneration. The order was revoked as these grounds were held to be insubstantial in order to solicit an inquiry under Section 237 of the Companies Act, 1956.

Leaving out relevant considerations

While exercising its discretionary power if an administrative authority turns a blind eye to relevant considerations, its acts will be considered null and void. An authority should always take heed of the considerations which  law lays down expressly or impliedly. In case the law does not lay down any considerations but grants power in a general way, the court might imply some appropriate considerations for the exercise of the power and rescind a directive since the officials concerned did not take these into account.

In Ranjit Singh v. Union of India[11], the allotted quota for production of guns by a licensed manufacturer was lowered from 30 to 10 guns per month. This order was challenged on the ground that the decree was not based on relevant considerations but on immaterial consideration. It was held by the Court that the order was out of place as the Government had not taken into account material considerations like the quality of guns produced, economic viability of the unit, capacity of the factory, etc. in making the order. It was observed by the Court that any curtailment of quota should be based on reason and relevance. If all the material factors are not considered, the decision is corrupt.

Colourable exercise of power

The courts often use the idiom “colourable exercise of power” to denounce an abuse of discretion. Colourable exercise signify that under the “appearance” of power accorded for one objective, the authority is trying to achieve something else which it is not permitted to do under the statute. Such acts  of the  authority shall be null and unlawful.

In Somawanti v. State of Punjab,[12]  the Supreme Court in relation to acquisition of land under the Land Acquisition Act[13] expressed as follows:

Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.

The above extract would show that the term “colourable exercise of power” is used in the sense that the exercise of power is unlawful, but it has been given the illusion of legitimacy.

Unreasonableness

                The law requires the authority to act fairly and rationally. The term “unreasonableness” does not provide a separate ground of judicial control  other than the grounds already mentioned. The term also comprises those cases where either the authority has acted in accordance with law but in the wrong manner or in accordance with law and in the right manner but on the wrong grounds. The courts usually do not exercise such extensive power to interfere in the exercise of administrative discretion. However, the courts do interfere with the order where it has been passed  irrationally.

Proportionality

To keep a lid on the exercise of administrative discretion judicial control has been formulated. This assures that unrestricted power is not given to the authorities to allow erratic decision-making. The rule of proportionality is one such major rule which make sure that there is a connection between the goal that must be achieved, and the method undertaken to enable so.

This tool was applied in Union of India v. Ranjit Thakur[14]. In this case Signalman Ranjit Thakur did not adhere to the lawful order of his senior officer by refusing to eat food offered to him. As a result of this court-martial proceedings were instituted and sentence of rigorous imprisonment of one year was levied on him. Also, he was expelled from service, with the additional disqualification that he would be incompetent for future employment. The said direction was called into question on the ground that the penalty was flagrantly inordinate. The Supreme Court implemented the doctrine of proportionality while revoking the punishment of expulsion from employment and sentence of incarceration awarded by the court martial under the Army Act[15].

Conclusion

With more and more discretion being given to the administrative authorities to take action without intervention from other bodies has led to increased independence of the authorities to choose between the different approaches and select the best alternative. However, to keep a check on this wide freedom, the courts in India have developed various controls over discretionary action which ensures that this power is exercised within the limits prescribed by law, is just and fair, and is based on pertinent grounds and good faith.

From the above cases we see that the abuse of administrative discretion takes place in a number of forms, for example, acting on mala fide basis, disregarding relevant considerations and pursuing irrelevant ones, misapprehending the power granted by the statute, etc.

The authorities must have an established extent of liberty to carry out its activities because excessive liberty accorded to the administration will always result in violation of the fundamental rights of an individual. The only method to guarantee individual freedom is judicial review of public administration. Hence, it is a matter of controversy as to what degree the public administration is susceptible to judicial review while performing the tasks assigned.

The work of public administration is to ensure proper execution of the administrative policy whereas the function of the  Administrative Tribunals is to assess whether this execution is exercised correctly under the provisions of law. The separation of these functions limits the scope of judicial review. The scope is limited to the basis of legality and the court’s function to directly rectify the administrative decision is relinquished. This separation of functions does not allow the court to act as a replacement to the administrative bodies.

For the proper exercise of discretion of power,  constructive framework was developed by the courts. The judicial control process of administrative discretion can be done by either establishing control at the stage of delegation of discretion or by establishing control at the stage when the discretion is exercised.

Freedom granted to the administrative authorities to make a decision on certain matters by using their best judgment opposed with the extensive judicial control represents the equilibrium maintained in Indian jurisprudence. On one side of this equilibrium lies unconstrained power and on the other,  judicial supremacy. Mid way is possibly the finest place to be.


*Second year student, BBA LLB, Vivekananda Institute of Professional Studies, New Delhi. Author can be reached at <barkhatandon09@gmail.com.

[1]Jerzy Parchomiuk, Abuse of Discretionary Powers in Administrative Law. Evolution of the Judicial Review Models: from “Administrative Morality” to the Principle of Proportionality, Vol. 3, MUNI Journals, 2018.

[2]AIR 1964 SC 72.

[3]1966 SCC OnLine SC 2.

AIR 1964 SC 962.

[5]Laksheyender Kumar, Abuse of Administrative Discretion, legalservicesindia.com, 21-6-2021, <http://www.legalservicesindia.com/article/756/Abuse-of-Administrative-Discretion.html>.

[6](1979) 2SCC 491.

[7]AIR 1967 SC 295.

[8]Companies Act, 1956, S. 237.

[9]Companies Act, 1956, S. 236.

[10](1969) 1 SCC 325.

[11](1980) 4 SCC 311.

[12]AIR 1963 SC 151, para 36.

[13]Land Acquisition Act, 1894.

[14] (1987) 4 SCC 611

[15]Army Act, 1950.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Anand Pathak, J. dismissed an application for bail which was filed by the applicant, who had been arrested on 03-02-2022 for offence punishable under Sections 409, 420, 467, 468, 471, 201, 120-B of Penal Code, 1860 and Sections 7, 13(1) & 13(2) of Prevention of Corruption Act, 1988.

It was alleged that Chief Executive Officer of Janpad Panchayat, Sironj (‘Applicant’) misused his official position and embezzled an amount of Rs. 30,68,37,000/- (Rs. Thirty Crores Sixty Eight Lacs Thirty Seven Thousand) on pretext of 6021 marriages allegedly conducted by members of unorganized labour class under Vivah Sahayata Yojna (scheme promulgated by State Government) where every member of unorganized labour between age group of 18 to 60 if undergoes marriage then financial assistance to the tune of Rs. 51,000/- is given after due verification.

Counsel for the Applicant submitted that he was suffering confinement since 03-02-2022 and charge-sheet has already been filed, therefore, chance of tampering with evidence / witness was remote. It was further submitted that Applicant was facing false implication. It was submitted that only 18 families were pointed out to be beneficiaries and not a single penny had been transferred in the account of Applicant.

Counsel for the State on the other hand submitted that detailed charge-sheet indicated the role of Applicant; wherein, Applicant has given benefits of 18,52, 32,000/- during COVID period April, 2020 to May, 2021 and in total more than 6,000 beneficiaries alleged to have been benefited by the act of Applicant but on close scrutiny it was found that some people received the benefit; wherein, no children were eligible to be married. Some beneficiaries were not family of construction workers and in some of the cases, beneficiaries did not have any knowledge about the benefits given to them. Around 529 persons were those construction workers whose registrations were not made in Registration Portal and still got the benefit.

The Court observed that contents of FIR / narration in charge-sheet indicate that Applicant facilitated marriage of more than 6,000 persons in families of construction workers during the period April 2020 to May, 2021 but incidentally, said period was of lock-downs at major portion of time, therefore, occurrence of such large number of marriages in strict lockdown period itself creates doubt. It was further found that many beneficiaries were those who were not entitled for the same because of the fact that no member was going to be married during that period in their families nor many construction workers were registered at all at the portal and still got the benefits. Many more beneficiaries were those who never received the amount but on record they were paid the benefits of scheme to the tune of Rs. 51,000/- on each marriage.

It appears to be a big scam where crores of rupees were siphoned off on the pretext of giving benefit of विवाह सहायता योजना to poor construction workers. It is a white collar crime prima facie.

The Court held that it cannot be ruled out that some more members must be involved in commission of offence as names of two non-government employees who were working at the instance of Applicant have come up and there is a possibility that tampering of evidence/witness can take place. The application was dismissed.

[Shobit Tripathi v. State of Madhya Pradesh, 2022 SCC OnLine MP 1270, decided on 09-06-2022]


Advocates who appeared in this case :

Mr Manish Dutt Sharma with Mr Prashant Sharma, Advocates, for the Applicant;

Mr Naval Kishore Gupta, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the case where the Madras High Court had ordered an enquiry and obtained a report without   furnishing a copy thereof to Tamil Nadu Minister SP Velumani in a corruption case and unceremoniously closed the writ petition, the 3-judge bench of NV Ramana, CJ* and Krishna Murari and Hima Kohli, JJ has held that when the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

On 11.09.2018, a private complaint was lodged against the appellant alleging that while he was serving as a Cabinet Minister, he misused his powers to influence the tender process and ensured that tenders were awarded to his close aides. Thereafter, a writ petition was filed seeking investigation into the allegations made in the complaint. The Madras High Court directed an enquiry by a responsible officer, Ms. Ponni, Superintendent of Police, Director of Vigilance and Anti-Corruption, who submitted her preliminary enquiry report to the Director of Vigilance and Anti-Corruption, who in turn submitted a final report before the High Court in a sealed cover. In the meanwhile, the Government took a decision to close the case based on the   aforesaid report submitted by the Court appointed officer. Rather than deciding this issue, the High Court adjourned the matter by a month.  However, it appears that due to various reasons, the matter could not be listed until 19.07.21. In the meanwhile, the State Government had changed. In a turn of events, the State Government went back on their earlier stand to close the criminal case. Instead, the State Government submitted before the High Court that they intended to conduct further investigation in the aforesaid matter.

The High Court the High Court neither provided the appellant an opportunity to defend himself, nor sought a reasoned justification from the State for having turned turtle. Surprisingly, it left the decision completely in the hands of the State Government.

The Supreme Court observed that the High Court committed a patent error in not taking the matter to its logical conclusion.

“It was the High Court which had ordered that a preliminary enquiry be conducted and a report be submitted by the special investigating officer. However, once the enquiry was completed, the High Court failed to even peruse the said report. Rather, the High Court left the decision completely in the hands of the State Government. Such an approach, as adopted by the High Court in the present matter, cannot be countenanced in law.”

Observing that the State cannot blow hot and cold at the same time, the Court held that initiation of the FIR in the present case stemmed from the writ proceedings before the High Court, wherein the State has opted to re-examine the issue in contradiction of their own affidavit and the preliminary report submitted earlier before the High Court stating that commission of cognizable offence had not been made out. Hence, in this background the mandate of Section 207 of CrPC cannot be read as a provision etched in stone to cause serious violation of the rights of the appellant-accused as well as to the principles of natural justice.

The Court, hence, directed the High Court to supply a copy of the report submitted by Ms. R. Ponni, Superintendent of Police along with the other documents to the appellant. It also restored the Writ Petition before the High Court.

[SP Velumani v. Arappor Iyakkam, 2022 SCC OnLine SC 663, decided on 20.05.2022]


*Judgment by: CJI NV Ramana


Cases ReportedSupreme Court Cases

In Part 4 of 2022 SCC Volume 3, read some very pertinent Supreme Court decisions, involving aspects regarding reservation, accountability of social media platforms, service law and more.


Constitution of India — Arts. 14, 15, 16 and 226 — Writ of mandamus in matters of reservation — Scope and limit: Order of High Court directing State Government to increase the percentage of reservation for a particular category, that is, to provide for 3% reservation/quota for sportspersons, instead of 1% provided by State Government, held, beyond its jurisdiction and a grave error. Court cannot issue a mandamus: (i) to provide for reservation or reservation for any particular community even on basis of any quantifiable data brought to its notice, or (ii) to collect quantifiable data to justify their action of not providing reservation. [State of Punjab v. Anshika Goyal, (2022) 3 SCC 633]

Constitution of India — Arts. 19(1)(a) & (2) and Arts. 194 & 105 — Accountability of Social media platforms, for posts made on such platforms by third parties: Extent of accountability of Social media platforms for posts made by third parties to House Committee of State Legislature, determined. [Facebook v. Delhi Legislative Assembly, (2022) 3 SCC 529]

Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Constitutional Authorities/Functionaries/High Public Offices — Security of Prime Minister of India: Directions issued for  judicial inquiry into breach and lapses as the convoy of PM was stuck on a flyover for around 20 minutes. Records relating to PM’s visit seized and secured. Directions also issued for constitution of Enquiry Committee, terms of reference and stay of ongoing proceedings by Central and State Governments. [Lawyers Voice v. State of Punjab, (2022) 3 SCC 521]

Criminal Procedure Code, 1973 — S. 389: Suspension of sentence by Supreme Court on ground of plea of juvenility taken before Supreme Court for the first time, when warranted, explained. [Sagar Behara v. State of W.B., (2022) 3 SCC 526]

Criminal Procedure Code, 1973 — S. 439 — Bail: Grant of bail without considering relevant aspects and recording reasons is not justified. Law summarised regarding principles for grant of bail and considerations to be balanced therefore. [Manoj Kumar Khokhar v. State of Rajasthan, (2022) 3 SCC 501]

Criminal Procedure Code, 1973 — S. 482 — Failure to exercise quashment power — When not proper: In this case of alleged misappropriation of monies of complainant and others, main allegations are against other co-accused, in the facts and circumstances of the case, it was held that to continue criminal proceedings against both appellant-accused herein would be abuse of process of law and court and unnecessary harassment to appellants. Hence, High Court ought to have exercised its powers and discretion under S. 482 CrPC and ought to have quashed criminal proceedings against appellants. Hence, criminal proceedings under Ss. 406, 420, 467, 468, 471 and 120-B IPC including charge-sheet, quashed and set aside insofar as appellants herein are concerned. [Rekha Jain v. State of U.P., (2022) 3 SCC 497]

Service Law — Pension — Computation/Calculation of pension: In this case, respondent retired after one month of rejoining from leave for about two years without allowances. Cl. 2(2) as modified vide Circular GO (P) No. 230/2012/Fin. dt. 19-4-2012 envisaged that for computing 10 months’ emoluments for purpose of average emoluments in respect of employee who retired from service on or after 1-1-2006 and who during part 10 months drew pay in pre-revised scale, their pay in pre-revised scale was to be enhanced notionally to initial pay drawn in revised scale. For calculating average emoluments as per Kerala Services Rules, if during period of ten months, employee was absent from duty, on leave with or without allowances which qualified for pension, or having been suspended was reinstated in service without forfeiture of service, his emoluments for ascertaining average were to be taken, at what they would have been, had he not been absent from duty or suspended provided that benefit of pay in any officiating post would be admissible only if it was certified that he would have continued to hold that officiating post but for leave or suspension. Thus, part of 10 months not equivalent to past 10 months. Hence, impugned judgment finding fixation of pension @ Rs 19,334 in revised scale justified considering last drawn pay of Rs 46,400 by respondent, calls for no interference. [State of Kerala v. Anie Lukose, (2022) 3 SCC 629]

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati, J., refused to interfere with the impugned order due to lack of any legal infirmity.

The facts of the case are such that an F.I.R., was lodged against the revisionist-petitioner for the offences under Sections 13 (1) (e) / 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘Act of 1988’) after two months of the recovery of an amount of Rs 50,000/- which was alleged to be bribe money. The said F.I.R. was lodged after a delay of about 2 months from the date of recovery of the said amount from the revisionist petitioner. Thus, the charge sheet was filed against the petitioner under the aforementioned provisions of the Act of 1988. The instant criminal revision petition under Section 397 read with Section 401 CrPC was preferred seeking quashing of the impugned order.

Counsel for the petitioner submitted that without looking into the facts and circumstances of the case, passed the impugned order, whereby it proceeded with framing of charges against the revisionist-petitioner, despite the factum of delay of two months in registration of the FIR.

Counsel for respondent submitted that after taking into due consideration all the facts and circumstances of the present case and after considering the evidence placed on record before it, has rightly passed the impugned order. 

The Court relied on judgment Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 wherein it was observed that

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

The Court further relied on judgment State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and observed that if a strong suspicion exists in the mind of the court at the stage concerned, then the same is sufficient for the court to proceed with the framing of the charge against the accused person(s). And if a prayer for discharge has been made before a revisional court, then the same may only be allowed if the court finds that the materials on record are wholly insufficient for the purpose of trial.

The Court held “this Court does not find any legal infirmity in the impugned order passed by the learned court below so as to warrant any interference, at this stage.”

[Sudhir Bordiya v. State, 2022 SCC OnLine Raj 765, decided on 20-04-2022]


Appearances:

For Petitioner(s): Mr. C.S. Kotwani

For Respondent(s): Mr. S.S. Rajpurohit


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of Dr. Dhananjaya Y Chandrachud*, Surya Kant and Vikram Nath, JJ., affirmed the impugned order of the Telecom Disputes Settlement and Appellate Tribunal whereby the Tribunal had dismissed appellant’s claim for refund of Rs 1454.94 crores Entry Fee paid by it for 2G licences. The Bench stated,

“…as a beneficiary and confederate of fraud, the appellant could not be lent the assistance of this Court for obtaining the refund of the Entry Fee.”

The instant appeals were filed under Section 18 of the Telecom Regulatory Authority of India Act 1997 against the judgments of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). The appellant claimed a refund of Rs 1454.94 crores Entry Fee paid by it for 2G licences for twenty-one service areas.

Noticeably, the Supreme Court by its judgment in Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1 (CPIL), had quashed 2G licences granted by the Union of India, including to the appellant. The Court had declared that the policy of the Union government for allocation of 2G spectrum on a ―First Come First Serve‖ basis was illegal.

Decision of TDSAT

As a consequence, the appellant approached the TDSAT to claim refund of its Entry Fee on the principles of civil, contractual and constitutional law which was dismissed by the TDSAT holding that the quashing of the appellant’s licences by the Supreme Court in its judgment in CPIL could not be equated with the Unified Access Service Licences (UASL) agreements becoming void within the meaning of Section 65 of the Indian Contract Act 1872.

The appellant then instituted another petition before the TDSAT7 raising the issue of a refund of the Entry Fee, on the ground that it had been exonerated by the Special Judge, CBI for charges under Section 120-B and 420 of the Indian Penal Code 1860 in a case relating to the grant of UASLs. However, it met with the same fate as the TDSAT dismissed the second petition noting that the appellant had made a second attempt for claiming the same relief which had been sought earlier in the First Telecom Petition.

Contention of the Appellant

It was against the impugned judgment of the TDSAT that the appellant had approached the Supreme Court contending that the fraud in the First Come First Serve policy for 2G spectrum allotment existed at the doorstep of the Union government alone and that the appellant was free from taint or wrong doing.

The CPIL Judgment

In CPIL, the Supreme Court had held that that the First Come First Serve policy was writ large with arbitrariness, and was intended to favour certain specific entities at a grave detriment to the public exchequer as the then Minister of Communications and Information Technology wanted to favour some companies and that as a matter of fact the entire process was stage-managed to favour those who had access to the nitty-gritties of the policy in advance. The Bench had observed,

“Undoubtedly, the authors of the ―First Come First Serve policy were the official actors comprised within the Union government. But equally, the decision did not exculpate the private business entities who obtained UASLs and became the beneficiaries of their decision.

Noticing that the appellant was amongst the four licensees who were directed to pay a cost of Rs 50 lakhs each because they too had been benefited by the wholly arbitrary and unconstitutional exercise undertaken by Department of Telecommunication (DoT) for grant of UASL and allocation of spectrum of 2G band, the Bench opined that the appellant was also complicit in the illegal exercise of obtaining favours by the indulgence of those in power. Thus, the the appellant was held to be in pari delicto along with the Union government.

Whether the Entry Fee was Refundable?

Clause 619 of the UASL Guidelines issued by the DoT required each applicant seeking a UASL for a given service area to deposit a non-refundable entry fee. Accordingly, the appellant paid paid the amount of Rs 1454.94 crores as entry fee and it was only upon the payment of Entry Fee the appellant became eligible to be issued UASLs in the twenty-one service areas. Additionally, Clause 18.121 of the UASL agreement acknowledged the payment of a onetime non-refundable entry fee prior to the signing of the agreement.

Thus, the Bench noted that the Entry Fee was a onetime non-refundable fee payable by an applicant for participating in the process of obtaining the UASL and was distinguishable from the licence fee under Clause 10.122, which was relatable to the actual operation of the licence.

Doctrine of frustration and restitution

The appellant had relied on the provisions of Sections 56 and 65 of the Contract Act to claim benefits of restitution and frustration contending that when a licence is granted under the proviso to Section (4)(1) of the Telegraph Act, the licence is in the nature of a contract between the government and licensee, thus bringing it within the ambit of the Indian Contract Act.

The Bench referred to Graham Virgo’s, “The Principles of Law of Restitution”, to observed that all claims for restitution are subject to a defence of illegality. The genesis of which is in the legal maxim ex turpi causa non oritur actio (no action can arise from a bad cause). Further, that a court will not assist those who aim to perpetuate illegality.

Thus, relying on the principle that when the party claiming restitution is equally or more responsible for the illegality of a contract, they are considered in pari delicto, the Bench held that unless the party claiming restitution participated in the illegal act involuntarily or the rule of law offers them protection against the defendant, they would be held to be in pari delicto and therefore, their claim for restitution will fail. The Bench expressed,

If the party claiming restitution was equally or more responsible for the illegality (in comparison to the defendant), there shall be no cause for restitution.”

Verdict

Consequently, the Bench concluded that the appellant was in pari delicto with DoT and the then officials of the Union government. Hence, as a beneficiary and confederate of fraud, the appellant could not be lent the assistance of this Court for obtaining the refund of the Entry Fee. Accordingly, the appeal was dismissed.

[Loop Telecom & Trading Ltd. v. Union of India, 2022 SCC OnLine SC 260, decided on 03-03-2022]


*Judgment by: Justice Dhananjaya Y Chandrachud


Appearance by:

For the Appellant: A M Singhvi and Huzefa A Ahmadi, Senior Advocates

For the Union of India: Vikramjit Banerjee, Additional Solicitor General


Kamini Sharma, Editorial Assistant has put this report together