Know thy Judge

“A possibility of abuse cannot be used to deny legitimate rights to citizens”

Justice A.M. Khanwilkar

Jigya Yadav v. CBSE, (2021) 7 SCC 535


A trip down the memory lane is what Retirements and Farewells essentially are in regards to a Supreme Court Judge. It is a chance to reminisce and cherish their tenure and take in the importance and gravity of the imprint that they will leave behind in the form of their numerous decisions. The year 2022 is ‘The Year of Farewells’ for the Supreme Court, because never before has it seen such a flurry of retirements as it has in this year.

This month, Supreme Court’s Justice Ajay Manikrao Khanwilkar is all set to retire after a comprehensive term of 6 years. It also means that it is time for us to take our readers on a time travel, to run through the past and present of Justice Khanwilkar’s life in law, with anticipation for an equally stellar future.


Early Life and Career as an Advocate [1982- 2000][1]


Justice A. M. Khanwilkar was born on 30-07-1957 in Pune, Maharashtra. He did his graduation (B. Com) from Mulund College of Commerce, Mumbai and LL.B. from K.C. Law College, Mumbai.

After graduating in law, Justice Khanwilkar enrolled as Advocate on 10-02-1982. During his time as a counsel, Justice Khanwilkar handled Civil, Criminal and Constitutional matters before the Subordinate Courts, Tribunals and High Court of Judicature at Bombay on the Appellate Side as well as the Original Side. During his practicing years, Justice Khanwilkar got a wide range of exposure in Criminal, Civil, Constitutional, Election and Co-operative matters.

From the year 1984, Justice Khanwilkar started his practice in the Supreme Court of India. He also worked as Additional Government Advocate for the State of Maharashtra till December 1989. Justice Khanwilkar was appointed as Panel Counsel for Union of India in January 1990 whereby which, he had the opportunity to represent the Union of India in several matters of national importance.

In August 1994 he was appointed as Amicus Curiae by the Supreme Court to assist on environmental issues in the case of M.C. Mehta (Calcutta Tanneries’ Matter) v. Union of India, (1997) 2 SCC 411. He was also the Standing Counsel for the Election Commission of India for Supreme Court matters from March 1995 till his elevation as a Judge. In October 1995, Justice Khanwilkar was appointed as Standing Counsel for the State of Maharashtra for Supreme Court matters.

♦Did you Know? Even in private practice, Justice Khanwilkar had on occasion handled matters of great significance before the Supreme Court to represent persons in high public offices as also various statutory Authorities, Corporations and institutions.

As Member of Committees/Task Force/ Associations

Justice Khanwilkar was appointed as Member of the Task force (headed by the former Chief Justice of India Justice E. S. Venkataramaiah ) constituted by the Ministry of Health and Family Welfare, Government of India in November 1995 for examining and reporting on the amendments needed in the Prevention of Food Adulteration Act.

He was also the Executive Member of the Supreme Court Bar Association and Joint Secretary and Executive Member of the Supreme Court Advocates on Record Association.

Notable Appearances as a Counsel


Judgeship of the High Court [2000- 2016][2]


A.M. Khanwilkar’s tryst with judgeship began from the year 2000 when he was appointed as the Additional Judge of the Bombay High Court on 29-03-2000. He was later confirmed as permanent Judge of the Bombay High Court on 08-04-2002.

On 04-04-2013, Justice Khanwilkar was elevated the Chief Justice of the High Court of Himachal Pradesh. Thereafter, he was appointed as Chief Justice of Madhya Pradesh High Court on 24-11-2013.

Notable High Court Decisions

Bombay High Court

State of Maharashtra v. Murarao Malojirao Ghorpade, 2009 SCC OnLine Bom 1645

Swatanter Kumar, CJ., and S.B. Mhase, A.M. Khanwilkar, A.S. Oka and R.M. Savant, JJ., held that Words “all the land held by a person or as the case may be by a family unit whether in this State or any part of India” in Section 3(2) of Maharashtra Agricultural Lands (Ceilings on Holdings) Act (27 of 1961), cannot be given effect as it has extra-territorial operation beyond State of Maharashtra.

Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, 2009 SCC OnLine Bom 1996

The 3 Judge Bench of Swatanter Kumar, CJ., and A.M. Khanwilkar and Mridula Bhatkar, JJ., held that expression “or” occurring in Order 18, Rule 4(2), CPC, means “either”. Expression “shall” occurring in Order 18, Rule 4(2) is mandatory only to extent that cross-examination of witness, whose evidence has been taken on Affidavit in lieu of chief-examination, has to be taken. It was held that the Court has discretion to direct cross-examination to be done before the Commissioner appointed by it with such directions as it may think fit and it is not mandatory for Court to record evidence only before Court. Judicial discretion contemplated in Order 18, Rule 4(2) is to be exercised on settled principles of law; evidence can also be recorded by electronic media which may result in expeditious disposal.

Himachal Pradesh High Court

State of H.P. v. Mehboon Khan, 2013 SCC OnLine HP 4080

The 3 Judge Bench of AM Khanwilkar, CJ., and VK Sharma and Dharam Chandra Chaudhry,JJ., held that Section 293 of CrPC postulates that Expert Report cannot be thrown out merely because Expert was not summoned or because details of tests not been given, unless and until Court is satisfied that summoning of Expert for furnishing tests carried out is necessary.

Vikram Chauhan v. Managing Director, 2013 SCC OnLine HP 1715

While deciding the issue that whether Co-operative Banks established in the State of Himachal Pradesh are “State” within the meaning of Art. 12, the Bench of AM Khanwilkar, CJ., R.B. Misra and DD Sud, JJ., referred the issue for consideration of Full Bench.

Madhya Pradesh High Court

Asif Mohd. Khan v. State of M.P., 2015 SCC OnLine MP 6742

The powers of the competent authority regarding suspension of employee are, that they can pass order revoking suspension of employee and can also transfer him at another place. There is no prohibition in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, R. 9(5)(a) and (b) barring Competent Authority from passing such composite order.

Technofab Engineering Ltd. v. Bharat Heavy Electricals Ltd., 2015 SCC OnLine MP 6744

Sch. I, Art. 1-A [As substituted by M.P. Amendment Act (6 of 2008) w.e.f. 2-4-2008] of Court Fees Act, providing for upper limit of Court Fees instead of ad valorem Court Fees is beneficial legislation. The benefit of upper limit of Court Fees prescribed by Amendment Act, must be applied uniformly to all litigants instituting their claim after 2-4-2008, be it in the form of plaint before subordinate Court or memorandum of appeal before the High Court.


Judgeship of Supreme Court of India [2016- 2022]


Justice Khanwilkar was elevated as Judge of Supreme Court of India and assumed charge on 13-05-2016.

In March 2018, Justice Khanwilkar was appointed as the Chairman of the Water Disputes Tribunal called ‘The Mahanadi Water Disputes Tribunal’, for the adjudication of the water dispute regarding the inter-State River Mahanadi, and the river valley thereof. The appointment was done in exercise of the powers conferred by Section 4 of the Inter-State River Water Disputes Act, 1956, and by an order of the President. The Tribunal was constituted by the Central Government with the members nominated by the Chief Justice of India.

Notable Supreme Court Judgments

When it comes to Justice Khanwilkar’s many decisions as a Supreme Court Judge, his tenure has been multi-faceted, as his decisions have not centered around one specific field of law.[3]

♦Did You Know? Justice Khanwilkar has authored approximately 200+ Supreme Court Judgments[4]

Some of the notable decisions on various issues, that have been rendered by Justice A.M. Khanwilkar and the decisions that he had been a part of, are as follows-

Prevention of Money Laundering Act

Justice Khanwilkar’s final week before his retirement saw the coming of a significant decision concerning the constitutional validity of Prevention of Money Laundering Act, 2002. In Vijay Madanlal Choudhary v. Union of India, SLP (Criminal) No. 4634 OF 2014, the 3-Judge Bench of A.M. Khanwilkar*, Dinesh Maheshwari and C.T. Ravikumar, JJ., upheld the validity of the challenged provisions of the 2002 legislation. The Bench also held that in view of the special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under CrPC. “Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if Enforcement Directorate at the time of arrest, discloses the grounds of such arrest”.

Fundamental Rights

In Jigya Yadav v. CBSE, (2021) 7 SCC 535, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ., held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

A 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D Y Chandrachud and Ashok Bhushan in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1  held that the right to die with dignity is a fundamental right. An individual’s right to execute advanced medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.

Elections

In Shobhabai Narayan Shinde v. Commr., (2022) 3 SCC 35, while deciding that whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure? Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ., held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee –the Collector, under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

In the case of Public Interest Foundation v. Union of India, (2019) 3 SCC 224, the 5-judge bench comprising Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ., made the disclosure of criminal antecedents by the contesting candidates mandatory and held that the disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

In Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 692, the Bench of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

Local Government- OBC Reservation in Elections

The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, i.e., Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked-

 “State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

Schools, Students and Education

The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., in Indian School v. State of Rajasthan, (2021) 10 SCC 517, issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilized facilities/activities and not on the basis of actual data school-wise. The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Rajneesh Kumar Pandey v. Union of India, 2021 SCC OnLine SC 1005, directed the Central Government to notify the norms and standards of pupil-teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to Children/Child with Special Needs (CwSN) in the general schools. While the Petitions before the Court pertained to State of Uttar Pradesh and Punjab only, the extensive direction issued by the Court will apply pan India.

The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in Mamta Sharma v. CBSE, (2022) 1 SCC 368, refused to interfere with the assessment Scheme propounded by the C.B.S.E or I.C.S.E for the Class XII students and has held that, “… the stated Schemes are fair and reasonable and take into account concerns of all students and is in larger public interest.”

Legislative Processes/ Legislations

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “undisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105, held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

The 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in L.R. Brothers Indo Flora Ltd v. Commissioner of Central Excise, 2020 SCC OnLine SC 705, held that for application of a subsequent legislation retrospectively, it is necessary to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act.

Judiciary, Courts and its Administration, Practice and Procedure etc.

Holding advocates to be officers of the Court, the bench of AM Khanwilkar* and CT Ravikumar, JJ., in NKGSB Cooperative Bank Limited v. Subir Chakravarty, 2022 SCC OnLine SC 239, held that it would be open to the Chief Metropolitan Magistrate (CMM)/District Magistrate (DM) to appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

The high voltage matter in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196; highlighting the case registered by the Central Bureau of Investigation against retired Orissa High Court Judge, Justice I.M. Quddusi, containing serious allegations implicating the said Judge under Ss. 8 and 120-B of the Prevention of Corruption Act, 1988, the 5-judge bench of Dipak Misra, CJ., along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ held that- “There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers”.

A 5-judge bench in State of Jharkhand v. Hindustan Construction Co. Ltd., (2018) 2 SCC 602, held that Supreme Court cannot entertain objections as the Original Court solely because it has appointed the arbitrator.

The bench of Justice A.M. Khanwilkar, Indu Malhotra and Ajay Rastogi, JJ., in Rachna v. Union of India, (2021) 5 SCC 638, held that the Courts cannot issue mandamus to frame policy. The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Explaining the importance of the role of Trial Courts, especially, with respect to framing of charges, the bench of A.M. Khanwilkar, Abhay S. Oka and J.B. Pardiwala, JJ., in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, Crl.A. No.-001041-001041/2022, held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Central Vista Project

The 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna, JJ., in Rajiv Suri v. Delhi Development Authority2021 SCC OnLine SC 7, by a 2:1 verdict, gave a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

Aadhar Card/ Right to Privacy

In K.S. Puttaswamy v. Union of India, (2018) 3 SCC 797, the Supreme Court quashed the order of Central Board of Secondary Education (C.B.S.E) asking the students to get themselves registered for National Eligibility-cum-Entrance Test (NEET) examinations by producing AADHAR numbers. The Court stated that

“The students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

Justice Khanwilkar was part of the Constitution Bench which decided one of the most significant decisions related to ‘Right to Privacy’ in K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 which declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy. However, certain orders and/or circulars making the citing of Aadhaar number mandatory have been held unconstitutional and struck down with a ratio of 4:1. However, despite going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court.

The 5- Judge Constitution Bench of A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., in Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1 addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1.

Same –Sex Relationships – Constitutionality of S. 377 IPC

In the landmark judgment of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the 5-Judge Bench of Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., partially struck down Section 377 of the Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court had upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

Centre- State Relationship/ Federalism

In State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 also known as Delhi v. Centre case, the 5-Judge Bench comprising of Dipak Misra, CJ., and A.K. Sikri, A.M Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan JJ., held that the words “any matter” employed in the proviso to clause (4) of Art. 239AA of the Constitution cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

Freedom of Speech and Expression and Hate Speeches

The bench of A.M. Khanwilkar and Sanjiv Khanna, JJ., in Amish Devgan v. Union of India, (2021) 1 SCC 1, refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation. While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Commutation of Death Sentence

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, JJ., in Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

Evidentiary value of Parliamentary Committee Reports

The 5-Judge Bench comprising of Dipak Misra, CJ., and A.M. Khanwilkar, Dr D.Y. Chandrachud, Dr A.K. Sikri and Ashok Bhushan, JJ., in Kalpana Mehta v. Union of India, (2018) 7 SCC 1, held that Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor can its validity be called into question.

Child Custody

The bench of A.M. Khanwilkar and J.B. Pardiwala, JJ., in a matter relating to custody of two minor children, advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives’. In Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, the Court observed that, “The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children”.

Sexual Offences

In a plea concerning imposition of certain conditions in a case involving a sexual offence against a woman, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity, the bench of A.M. Khanwilkar and S. Ravindra Bhat, JJ., in Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230, held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances.

Reminding the Courts of their duty, the Bench stated that-

“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the Court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the Court.”

Adultery

The 5-Judge Constitution Bench in Joseph Shine v. Union of India, (2019) 3 SCC 39, held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Dipak Misra, CJ., (for himself and A.M. Khanwilkar, J.,) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person.

Tribunals

The Bench of A.M. Khanwilkar, Hrishikesh Roy and C.T. Ravikumar, JJ., considered the question, whether the National Green Tribunal has the power to exercise Suo Motu jurisdiction in the discharge of its functions under the National Green Tribunal Act, 2010 in Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897, it was observed that “NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks its door”.

Taxation

Justice A.M. Khanwilkar was part of the majority opinion in the 7:2 majority Entry Tax verdict in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1  which upheld the validity of the entry tax imposed by the States on goods imported from other States. It was held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”.

Sidhu Road Rage

Allowing the review petition in the 34-year-old road-rage case involving cricketer-turned-politician Navjot Singh Sidhu that resulted into the death of one 65-yer-old Gurnam Singh, the bench of A.M. Khanwilkar and Sanjay Kishan Kaul, JJ., in Jaswinder Singh v. Navjot Singh Sidhu, 2022 SCC OnLine SC 652, imposed a sentence of one-year rigorous imprisonment on Sidhu in addition to the fine of Rs.1,000/- imposed in the order dated 15-05-2018.

Decisions That Initiated a Broader Discourse

In Justice Khanwilkar’s varied trajectory as a SC Judge, there were some decisions which generated quite a buzz, not only in the legal circles but also in the political crowd and the civil society at large. Besides the very recent decision in Madanlal Choudhry v. Union of India (PMLA case), there have been other cases which encouraged a dialogue within the various sections of the society and media. Some of those cases have been listed below-

Foreign funding for NGOs

In a major win for the Union of India, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Noel Harper v. Union of India, 2022 SCC OnLine SC 434, upheld the validity of the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010 vide the Foreign Contribution (Regulation) Amendment Act, 2020. The Court was of the opinion that receiving foreign donations cannot be an absolute or even a vested right. By its very expression, it is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems.

Gauri Lankesh Murder Case

In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Kavitha Lankesh v. State of Karnataka, 2021 SCC OnLine SC 956, set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak. N, regarding offences under Sections 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Godhra Riots Case

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and CT Ravikumar, in Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, dismissed Zakia Jafri’s plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State of Gujarat against the minority community.

Entry of Women in Sabrimala Temple

A 5-Judge Constitution Bench, in Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by Dipak Misra, CJ., for himself and A.M. Khanwilkar, J.; while, R.F. Nariman and Dr D.Y. Chandrachud, JJ., each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Dipak Misra, CJ., and A.M. Khanwilkar, J., held that the exclusionary practise  followed at the Sabarimala temple violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. The practice of exclusion of women of the age group of 10 to 50 years cannot be regarded as an essential part as claimed by the respondent Board.


 Legacy


♦Did you Know? During his tenure as a Judge, A.M. Khanwilkar, J., has been part of almost 809 Benches![5]   

Every field in Law is a vast universe in itself and it is through the contributions of lawyers and judges alike that people are able to access this ‘multiverse’. It would not be wrong to say that ever since Justice Khanwilkar entered the legal profession, at every step of his career, he has traversed into this infinite realm. At every phase of his career- whether it be Judging or Getting Judged- Justice Khanwilkar has not only proved his mettle, but his contributions have enriched the legal space for the posterity to savour.

Law is like the universe- infinite; thus, there are always chances of expansion. Since 1982, Justice Khanwilkar truly has been exploring the “multiverse of law”. We very much look forward to the next chapter in Justice Khanwilkar’s career with hopes that he keeps on exploring and expanding the legal boundaries.


†Sucheta Sarkar, Editorial Assistant has put this report together 

* Judge who has authored the decision

[1] Hon’ble Former Justices, High Court of Bombay

[2] Chief Justice and Judges, Supreme Court of India

[3] Justice AM Khanwilkar, SC Observer

[4] www.scconline.com

[5] Justice A.M. Khanwilkar, SC Observer

Know thy Judge

“Zero tolerance towards corruption should be the top-notch priority for ensuring system based and policy driven, transparent and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society.”

Justice Ajay Rastogi

State of Gujarat v. Mansukhbhai Kanjibhai Shah,

2020 SCC OnLine SC 412


Justice Ajay Rastogi was born on 18th June 1958 in Jaipur to Shri. Harish Chandra Rastogi. He followed the footsteps of his father and joined the bar in 1982. During the years of his practice at Rajasthan High Court, he practised in different spheres of law but was specialized in service and labour laws.

♦Did you know? Justice Ajay Rastogi’s father Late Harish Chandra Rastogi was an eminent civil lawyer in Rajasthan High Court.

Justice Rastogi took oath as a Judge in the Rajasthan High Court on 02-09-2004. He was officiated as the Administrative Judge of the Rajasthan High Court on 19-07-2014 and continued till his elevation as Chief Justice of the Tripura High Court.

After his appointment as a judge of the Rajasthan High Court, Justice Rastogi remained Executive Chairman of the State Legal Services Authority from 14-10*2013 to 18-10-2016.

♦Did you know? Under his stewardship, Rajasthan Legal Services Authority won the National Award from National Legal Services Authority for three consecutive years.[1]

Justice Rastogi was also the Acting Chief Justice of the Rajasthan High Court w.e.f. 14-04-2016 to 13-05-2016.

Justice Ajay Rastogi was recommended by the Collegium for being appointed as Chief Justice of the High Court of Tripura on February 1, 2018 and took oath on 01-03-2018. He was elevated as Judge of the Supreme Court on 02-11-2018.

♦Did you know? The collegium had superseded Justice Maheshwari in October, 2018 when it recommended the elevation of the then Chief Justice of the Tripura High Court, Justice Ajay Rastogi — originally from the Rajasthan High Court — to the Supreme Court.[2]


 Career as an Advocate


Justice Ajay Rastogi practised in the Rajasthan High Court in Constitutional, Service and Labour Laws etc. His field of specialisation was Service and Labour Law.

Justice Rastogi was nominated as the standing counsel for the Rajasthan High Court in the year 1990 and continued as such till his elevation in the year 2004. He also worked as the standing counsel for Rajasthan Financial Corporation, Jaipur, Board of Secondary Education, Rajasthan, Ajmer, and of various Banking Institutions, Electricity Board & Educational Institutions etc.[3]

Justice Rastogi was also appointed President of the Rajasthan High Court Bar Association at Jaipur in the year 1999-2000.

Justice Ajay Rastogi had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:


Notable Judgments at Supreme Court


The bench of NV Ramana and Ajay Rastogi, JJ, has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years.[4]

Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

Read More…


Pawan Kumar v. Union of India, 2022 SCC OnLine SC 532

The Division Bench of Ajay Rastogi* and Sanjiv Khanna, JJ., reversed the impugned order of Delhi High Court whereby the High Court had upheld the dismissal order of appellant owing to suppression of information/false declaration in the verification form regarding criminal antecedent.

The Court held that the effect of suppression of material/false information involving in a criminal case is that it is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keep in view the objective criteria and the relevant service rules, while taking appropriate decision regarding continuance/suitability of the employee into service.

Read More…


P. Ranjitharaj v. State of T.N., 2022 SCC OnLine SC 508

The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

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Union of India v. Ex. Constable Ram Karan, 2021 SCC OnLine SC 1041

The Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ.,    set aside the judgment of the Delhi High Court wherein it had substituted the penalty of removal from service with confinement of respondent from 1.00 p.m. to 10.00 p.m. in quarter guard jail without noticing the mandate of the nature of punishments indicated under Section 11(1) of the Central Reserve Police Force Act, 1949 (CRPF). The Bench expressed,

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

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Sudhir Kumar Atrey v. Union of India, 2021 SCC OnLine SC 971

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed dismay over the manner adopted by the Western Command, Military Engineering Service in making appointments from the select panel of 29-06-1983 after a lapse of 4-5 years in the year 1987-1988.

“…the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987-1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority.”

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V. N. Patil v. K. Niranjan Kumar, 2021 SCC OnLine SC 172

The bench of Indu Malhotra and Ajay Rastogi*, JJ., held that the aim of every Court is to discover the truth but it should be done judiciously.

The Court opined that though it is not necessary to record elaborate reasons in every case, the Courts should do so in order to facilitate the superior Courts to understand what weighed in with the Court to reverse the finding of the lower court.

“Wider the power, greater is the necessity of caution while exercise of judicious discretion”

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Rachna v. Union of India, 2021 SCC OnLine SC 140

While refusing the plea of last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 who had sought for an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ held that allowing extra attempt in such a case would set a precedent and also have cascading effect on examinations in other streams.

“… merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020.”

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While discussing its related to issuing mandamus to frame policy, the Court held that the Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different and Courts cannot issue mandamus to frame policy.

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Gauri Shankar v. State of Punjab, 2021 SCC OnLine SC 96

The Division Bench of Indu Malhotra and Ajay Rastogi*, JJ., confirmed punishment of life imprisonment for remainder of natural life awarded to a man accused of murdering two minor children aged 4 years and 2 years in brutal manner by administering celphos to them.

The Court observed that a trial court while sentencing an accused to life imprisonment cannot order that such imprisonment is for the remainder of his/her natural life. The power only lies in the hand of High Courts and the Supreme Court to direct the same.

 “It is true that the punishment of remainder of natural life could not have been imposed by the learned trial judge but after looking into the entire case, we consider it appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under Section 302 IPC.”

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Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107

Criticising the National Consumer Disputes Redressal Commission (NCDRC) for its practice of passing ‘reasons to follow’ orders, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC to take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed along with the operative order.

The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

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Soumitra Kumar Nahar v. Parul Nahar, (2020) 7 SCC 599

“In a custody battle, no matter which parent wins but the child is always the loser”

In a case involving prolonged Court battle over child custody rights, the Division bench of AM Khanwilkar and Ajay Rastogi*, JJ., held that the Courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.

“Rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility.”

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Pankjeshwar Sharma v. State of J&K, 2020 SCC OnLine SC 984

“Negative equality cannot be claimed to perpetuate further illegality”

A 3-Judge Bench comprising of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi*, JJ. held that any appointments made deviating from merit in exceptional cases can be justified, like in instant case viz. to give quietus to litigation, however such appointments would be irregular appointments, though not illegal and the candidates left out of merit list has no right to claim the same benefit which was provided to some other candidates on basis of some erroneous concession granted by the State. The Court restated that negative equality cannot be claimed to perpetuate further illegality.

“In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down.”

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Prerit Sharma v. Bilu B.S., 2020 SCC OnLine SC 961

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., by passing an interim order directed that there will be no reservation for to in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021.

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IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.

Read more…

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State of Odisha v. Dilip Kumar Pratihari, 2020 SCC OnLine SC 603

The 3-judge bench of S.K. Kaul, Ajay Rastogi and Aniruddha Bose, JJ., in an application seeking condonation of delay of 587 days filed by State of Odisha, had imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

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Anun Dhawan v. Union of India, 2020 SCC OnLine SC 165

Displeased with the Centre and the States on repeated failures by them to file their replies on a PIL seeking setting up of community kitchens across the country, the 3-judge bench of N V Ramana, Ajay Rastogi and V Ramasubramanian, JJ., came down heavily and imposed cost of Rs. 5 lakh on them for not complying with its directions to file their affidavits on a.

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C. Bright v. District Collector, (2021) 2 SCC 392

The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ while upholding the Kerala High Court’s decision, held that the time-limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time-limit does not render the District Magistrate functus officio. Time-limits stipulated in the section, are directory and not mandatory.

Interpreting Section 14 of the SARFAESI Act, the Court said that

“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”

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Rekha Sengar v. State of Madhya Pradesh, 2021 SCC OnLine SC 173

“A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society.”

While rejecting the bail in the case where the investigative team has seized the sonography machine and made out a strong prima-facie case against the petitioner, the 3-judge bench of MM Shantanagoudar*, Vineet Saran and Ajay Rastogi, JJ held no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a ‘paper tiger’ and that clinics and laboratories can carry out sex-determination and feticide with impunity.

“The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish pre­natal sex­ determination as a grave offence with serious consequences for the society as a whole.”

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Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157

While deciding the question as to whether the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 would commence from the date on which the draft award is circulated to the parties, or the date on which the signed copy of the award is provided, the bench of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for challenging arbitral award can only commence from date of receipt of signed copy and not from the receipt of draft

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Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206

The bench of Indu Malhotra* and Ajay Rastogi, JJ, while discussing the exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC in quashing a criminal proceeding, reiterated that the existence of civil remedies by itself is not a ground to quash criminal proceedings.

The Court held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court.

“…the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

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BSNL v. Nortel Network India Pvt. Ltd, 2021 SCC OnLine SC 207

A bench comprising of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963.

The Court opined that the period of limitation will begin to run from the date when there is failure to appoint the arbitrator. Moreover, the Court may refuse to make the reference in rare and exceptional cases, where the claims are ex facie time-barred and it is manifest that there is no subsisting dispute.

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Vikas Kishanrao Gawali v. State of Maharashtra, 2021 SCC OnLine SC 170

Deciding the issue whether reservation for OBCs can exceed upper ceiling of 50% in local elections for entirely scheduled areas, the 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., held that the total seats reserved in favour of SC/STs and OBCs in local bodies should not exceed 50 percent of the total seats.

The Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which mandated that the State should provide 27 percent reservation for OBCs as it ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution.

“The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favor of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favor of SCs/STs/OBCs taken together.”

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Pravat Chandra Mohanty v. State of Odisha, 2021 SCC OnLine SC 81

“When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern.”

In a case where two police officers who had mercilessly beaten a man leading to his eventual death back in 1985, the Division Bench comprising of Ashok Bhushan* and Ajay Rastogi, JJ., held that Custodial violence a crime against humanity. The Court considered the fact that both the appellants were more than 75 years of age therefore reduced the sentence awarded for conviction under Section 324 IPC to six months instead of one year and directed to pay a compensation of Rs.3.5 Lakhs each to the legal heir of the deceased in addition to the compensation awarded by the High Court.

 “The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution.”

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Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710

A 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ, in a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, held that no offence had been committed under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 because the insulting or intimidating of a person belonging to a SC/ST community will not be counted as offence under the Act unless such insult or intimidation is on account of them being a member of the SC/ST community.

 “The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”

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Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

“To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army –men and women – who serve as equal citizens in a common mission.”

In a path-breaking judgement, the Division Bench comprising of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law and violates the guarantee of equality under Article 14 of the Constitution.

The Court ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

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Union of India v. Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326

“A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field.”

In yet another major verdict addressing the gender stereotypes and rights of women, the Division Bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ., lifted the statutory bar on the engagement or enrolment of women in the Indian Navy and directed the Centre to grant Permanent Commission to women Navy officers.

“Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

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Hindustan Unilever Ltd. v. State of Madhya Pradesh, 2020 SCC OnLine SC 905

The 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ., in a case relating to the adulteration of Dalda Vanaspati Khajoor Brand Ghee dating back to 1989 wherein the company was absolved of all charges but prosecution against it’s nominated office Nirmal Sen was continued, held that in the absence of the Company, the Nominated Person cannot be convicted or vice versa i.e. either both of them are convicted or none of them.

“Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.”

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Umedsinh P Chavda v. Union of India, 2020 SCC OnLine SC 500

In a public interest litigation (PIL) seeking ban on sale of Coca cola, Thums Up and Soft Beverages, the 3-judge bench of Dr. DY Chandrachud, Hemant Gupta and Ajay Rastogi, JJ., has imposed a fine of Rs 5,00,000 on the petitioner for abuse of process.

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Joint Labour Commissioner and Registering Officer v. Kesar Lal, 2020 SCC OnLine SC 327

The bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that a service rendered at no matter how less consideration would still be a ‘service’ under Consumer Protection Act.

“So long as the service which has been rendered is not rendered free of charge, any deficiency of service is amenable to the fora for redressal constituted under the Consumer Protection Act 1986.”

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Notable Judgments at High Court


Krishna Sarkar v. Government of Tripura, 2018 SCC OnLine Tri 209

In a writ petition for the claim of compensation in a medical negligence case, Ajay Rastogi*, CJ., refused to quantify compensation on mere allegation of ‘Medical Negligence’.

“…the law will take its own course but merely on an allegation of a medical negligence it cannot be established unless the parties are being permitted to lead evidence in support of their respective claim and certainly, on the disputed question of fact of alleged medical negligence…”

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Tapas Chakraborty v. High Court of Tripura, 2018 SCC OnLine Tri 57

The Division Bench of Ajay Rastogi, C.J., and S. Talapatra, J., held that once a FIR is quashed under Section 482 CrPC, no inference should be drawn to impute any adverse antecedents which in any way may deprive an individual from seeking public employment.

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Sudhir Debbarma v. State of Tripura, 2018 SCC OnLine Tri 94

“The object of the die-in-harness scheme is to provide solace to the dependent family members of the deceased employee who have lost their breadwinner and left them to destitute and in financial crunch to be mitigated at the earliest”

In a case dealing with providing compassionate appointment and how these matters are being dealt in very insensitive or casual manner by the Government officials, Ajay Rastogi*, CJ., imposed cost of Rs. 50,000/- upon the respondents authorities in taking the matter so casually in deciding the application under the die-in-harness scheme and directed the authority to recover the same from the concerned defaulting officers who are so casual in disposing of the application.

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Abhyutthanam Society. v. State of Rajasthan, 2016 SCC OnLine Raj 1947

In a public interest litigation filed for ensuring effective implementation of the Right of Children to Free and Compulsory Education Act, 2009, the Division Bench of Ajay Rastogi*, A.C.J., and S. Talapatra, J., held that the State Government do not holding any authority to re-write the definition of Sec.2 (d) of the Right to Education Act, 2009.

The Court also directed the State government to include children belonging to OBC & SBC categories whose parents’ annual income not exceeding Rs.2.50 lakhs as part of the notification dated 28.3.2016.

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Ganga Devi v. State, 2014 SCC OnLine Raj 1906

The Division Bench comprising of Ajay Rastogi and J.K. Ranka, JJ., while taking note of the fact that the appellant had served more than fourteen and a half years of sentence in jail without parole and that she was aged about 79 years, granted her permanent parole.

“a liberal view is to be taken at least in this particular case when admittedly, the convict-petitioner is a woman and is almost touching the age of 80 years and one never knows longevity of life but with her age, at least in this fag end of her life, she needs company of her children and so also grand children if any and spend rest of her life peacefully with them.”

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Jayant Sharma v. State of Rajasthan, 2012 SCC OnLine Raj 3000

“The government employees have neither fundamental nor statutory or moral right to resort to strike.”

While deciding the issue whether making respondents eligible for Pre P.G. Medical Examination against seats reserved for in service category by granting extra ordinary leave without pay for 32 days period for which they remained on strike amounts to misconduct, Justice Ajay Rastogi* held that whether it amounts to misconduct or not, can only be established after the disciplinary enquiry contemplated under RCS (CCA) Rules is conducted

The Court while acknowledging that the service of the medical profession is a noble service, opined that the government employees have neither fundamental nor statutory or moral right to go on strike.

“The impact of such strikes either by students and medical community who are directly connected with the hospitals is totally different from the strike in factory or trading establishment, as the ailing patients cannot be left waiting or unattended. Hospital activity is not the same as the lifeless functioning of machines in a factory or movement of trading material or other forms of commerce where workmen are being provided certain protection under the provisions of the Industrial Disputes Act. Almost all the activities in relation to hospital are such as require constant and incessant attending and care, unlike financial losses; the loss of life or limb cannot be recouped.”


†Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

[1] https://main.sci.gov.in/chief-justice-judges

[2] https://theprint.in/judiciary/scs-newest-judges-had-set-aside-aap-mla-disqualification-ruled-fashion-shows-are-taxable/179680/

[3] https://thc.nic.in/FCJprofile-HAR.html

[4] https://www.scconline.com/blog/post/2019/08/23/triple-talaq-sc-issues-notice-to-centre-on-plea-challenging-the-new-law/

Know thy Judge

Born on 17-06-1958, Justice Kuttiyil Mathew Joseph studied Law at the Government Law College, Ernakulam, Kerala and got enrolled as a lawyer in 1982. He started his legal practice from the Delhi High Court in Civil and Writ matters. Later on, he shifted his practice to Kerala High Court in 1983 and became a permanent member of Kerala High Court Advocates Association. After practicing for about two decades Justice K.M. Joseph became Permanent Judge of the High Court of Kerala on 14-10-2004.[[1]]

♦Did you know? Justice K.M. Joseph is the son of K. K. Mathew, former Supreme Court judge and Chairman of the 10th Law Commission.[[2]]

He was sworn in as the Chief Justice of Uttranchal High Court on 31-07-2014. Carrying the legacy of his father Justice K.M. Joseph got elevated as the Judge of Supreme Court on 07-08-2018.

♦Did you know? Justice K.M. Joseph is one of the longest serving High Court Chief Justices to be elevated to the Supreme Court.[[3]]

Justice K.M. Joseph is due to retire on 16-06-2023.


Career as an Advocate


Justice K.M. Joseph had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:

 Shanti Lal Mehta v. Union of India, 1982 SCC OnLine Del 303 

 Anirudhan v. Government of Kerala, 1999 SCC OnLine Ker 293

 State of Kerala v. T.V Anil, 2001 SCC OnLine Ker 328 

 Thomas v. Mathew N.M, 1995 SCC OnLine Ker 151

 Mathew v. Union of India,  2003 SCC OnLine Ker 12′

♦Did you know? Justice K.M. Joseph had been appointed as Amicus Curiae in Mathew Varghese v. Rosamma Varghese, when the Kerala High Court was addressing the question: Whether a Christian father is under an obligation to maintain his minor child?[[4]] 


Remarkable Judgments as the Judge of Supreme Court


Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474

A 3-Judge Bench has held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories.  R.F. Nariman and B.R. Gavai, JJ. formed the majority. Whereas K.M. Joseph, J. penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability.

Read more…


 P.B. Nayak v. Bhilai Steel Plant,  2021 SCC OnLine SC 970

The Division Bench of K.M Joseph* and Pamidighantam Sri Barasimha, JJ., held that mere fact that food, refreshment and even liquor is being provided in Non-Residential Clubs by catering services, it will not make the club premises ‘wholly or principally’ related to supply of meals and refreshments to make it fall within the purview of M.P. Shops and Establishments Act, 1958.

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Rathish Babu Unnikrishnan v. State (NCT of Delhi), 2022 SCC OnLine SC 513

While rejecting an appeal to quash proceedings under Section 138 of the N.I. Act, 1881 at pre-trial stage, the Division Bench comprising of K.M. Joseph and Hrishikesh Roy*, JJ., held that when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties.

The Bench upheld the impugned judgment of Delhi High Court wherein the High Court had – while acting as a quashing court under Section 482 of CrPC – refused to quash proceedings at pre-trial stage. The Bench observed,

“The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested.”

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Regional Transport Authority v. Shaju, 2022 SCC OnLine SC 209

The Division Bench comprising of K.M. Joseph and Pamidighantam Sri Narasimha*, JJ., held that Rule 174(2)(c) of the Kerala Motor Vehicle Rules,1989 is valid and salutary and does not go beyond the scope of Section 83 of the MV Act, 1988. While interpreting the expression “same nature” the Bench observed that such expressions are better kept open ended to enable courts to subserve the needs of changing circumstances. The Bench expressed,

“…the assumption in the impugned judgment that the expression “same nature” is confined only to, mean “a bus by bus, a mini-bus by mini-bus and not bus by a minibus….” is not a correct way to read the provision. There is no need to restrict the meaning of an expression same nature.”

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Amar Nath v. Gian Chand, 2022 SCC OnLine SC 102

The Division Bench of K.M. Joseph* and Pamidighantam Sri Narasimha, JJ., held that mere writing the word “cancelled” or drawing a line would not render Power of Attorney null and void as there must be cancellation and it must further be brought to the notice of the third party at any rate.

Read more…


CBI v. Uttamchand Bohra2021 SCC OnLine SC 1208

While dealing with a case of abetment and conspiracy for commission of criminal misconduct by public servant, the Division Bench of K.M. Joseph and S. Ravindra Bhat*, JJ., held that Section 13 of Prevention of Corruption Act cannot be invoked against a non-public servant. Clarifying the standard of suspicion to make out a prima facie case for conspiracy, the Bench stated,

“The material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct, under the PCA, or amassed assets disproportionate to a public servant’s known sources of income, has to be on firm ground.”

Read more…

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Korukonda Chalapathi v. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847

The Division Bench of K.M Joseph* and S. Ravindra Bhat, JJ., held that an unregistered family settlement document is admissible to be placed “in” evidence if it does not by itself affect the transaction though the same cannot be allowed “as” evidence. The Bench expressed,

“Merely admitting the Khararunama containing record of the alleged past transaction, is not to be understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

Read more…


 Commissioner of Police v. Raj Kumar2021 SCC OnLine SC 637

The Bench of K.M. Joseph and S. Ravindra Bhat, JJ. while addressing the matter, observed that,

“Public service – like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service.”

Read more…


 Manohar Lal Sharma v. Narendra Damodardas Modi2018 SCC OnLine SC 2807

A Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. dismissed the petitions pertaining to seeking probe in ‘Rafale Deal’ by stating that “we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.”

The present judgment given by the 3-judge bench of the Supreme Court dealt with 4 writ petitions in regard to procurement of 36 Rafale Fighter Jets for the Indian Airforce.

Read more…

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Manish Kumar v. Union of India, 2021 SCC OnLine SC 30

The 3-Judge Bench of Rohinton Fali Nariman, Navin Sinha and K.M. Joseph, JJ., in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. While so upholding the impugned amendments, the Bench expressed an observation that:

“There is nothing like a perfect law and as with all human institutions, there are bound to be imperfections. What is significant is however for the court ruling on constitutionality, the law must present a clear departure from constitutional limits.”

Read more…


Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382

In a major verdict, the bench of UU Lalit and KM Joseph, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Read more…

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Kishorechandra Wangkhemcha v. Union of India, 2021 SCC OnLine SC 374

The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

The notice is returnable on July 12, 2021.

Read more…

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Iffco Tokio General Insurance Co. Ltd. v. Pearl Beverages2021 SCC OnLine SC 309

In an interesting case, the 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has held that while in case where there is a blood test or breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion, however, the absence of test may not disable the insurer from establishing a case for exclusion from liability on ground of drunk driving.

Read more…

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P. Mohanraj v. Shah Brother Ispat Pvt. Ltd.,2021 SCC OnLine SC 152

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has, analysing various provisions under the Negotiable Instruments Act, the Court concluded that the proceedings under Section 138 are “quasi-criminal” in nature.

The Court held that

“a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC.”

In a 120-pages long verdict, the Supreme Court tackled the following issues to reach at the aforementioned conclusion:

Read more…

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Anglo American Metallurgical Coal Pty Ltd v. MMTC Ltd, 2020 SCC OnLine SC 1030

While settling the dispute between Anglo American Metallurgical Coal (AAMC) and MMTC Ltd, the bench of RF Nariman and KM Joseph, JJ had the occasion to explain the concept of “patent” and “latent” ambiguity and held,

“… a “patent ambiguity” provision, as contained in section 94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense.”

In the said case, the bench has set aside the decision of the division bench of Delhi High Court and has restored the Majority Award dated 12.05.2014 and the Single Judge’s judgment dated 10.07.2015 dismissing the application made under section 34 of the Arbitration Act by MMTC.

Read more…

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Paramvir Singh Saini v. Baljit Singh2020 SCC OnLine SC 983

The 3-judge bench of RF Nariman, KM Joseph and Anirudhha Bose, JJ has directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks.

The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

Read more…

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Seelan v. Inspector of Police,  2020 SCC OnLine SC 1028

In a 20-year-old case relating to rape of a 6-year-old, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has dismissed the special leave petition filed by the convict, thereby rejecting the contention that since the petitioner has only one hand, it would be physically impossible to have committed an act of rape. The Court said that there is no such impossibility.

Read more…

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Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Read more…

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Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737

“An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services.”

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and KM Joseph, JJ has stayed the further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 by Sudarshan news either under the same or any other title or caption. The case deals with telecast of a programme titled ‘Bindaas Bol’ on Sudarshan News which allegedly vilifies the Muslim community by portraying it to be involved in an act of terror or, as it is labeled, “jehad” in infiltrating the civil services of the nation.

Read more…


Notable Judgments at the High Court of Kerala (2004-2014)


Kapico Kerala Resorts (P) Ltd., v. Ratheesh K.R., 2013 SCC OnLine Ker 24580

The Division Bench of K.M. Joseph and K. Harilal, JJ. had ordered to demolish the Kapico Resorts at Panavally in Nediyathuruthu, which was constructed violating Coastal Regulation Zone Rules. The Bench stated, “we cannot ignore the fact that we have also held that the island would fall otherwise in CRZ III and therein the construction would be impermissible. We also notice that in the recommendation of the committee the CRZ on the bank of filtration ponds/pokali fields of Kerala needs to be in CRZ-III. No doubt here the petitioners have a case that constructions could be regularised as it were and also it is important that at any rate property of the island was properly classified for all times”. Admittedly, the company had not sought or got permission for the construction as required under the guidelines.

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Ratheesh. K.R v. State of Kerala, 2013 SCC OnLine Ker 14359

The Division Bench of K.M. Joseph and K. Harilal, JJ., addressed the controversy involving ediyathuruthu and Vettilathuruthu, once two sleepy islands which lay nestled in the Vembanad Lake which is the longest lake in India and a backwater in the State of Kerala. Is there violation of the Coastal Regulation Zone Notifications issued in the year 1991 and 2011, and is there encroachment on puramboke land and kayal, were the questions which substantially arise for consideration. The Bench held that the Notifications issued were intended to protect the coasts, the environment in general and to achieve the sustainable development, particularly of the fisher folk and other local population. The Notifications were meant to be enforced with full vigour. Circulars had been issued to the local bodies, however, only lip service had been paid if at all to the terms of the Notifications. The Bench remarked that by such callous indifference and consequent blatant violation of the Notifications, a law which was meant to address serious environmental issues which adversely affect the present and future generations, was being completely undermined.

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K.V Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust, 2005 SCC OnLine Ker 504

The 3-judge Bench of J.B Koshy, K.M Joseph and K.R Udayabhanu, JJ., settled the questions of law referred to be decided by the Full Bench:

(i) Whether an appeal will lie against the order of a single Judge passed under Section 24 of the Code of Civil Procedure;

(ii) When such proceedings are under consideration can the learned single Judge pass interim orders; and

(iii) If interim orders are passed by the single Judge, whether appeals to the Division Bench can be filed from such interim orders.

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Rehim v. M.V Jayarajan, 2010 SCC OnLine Ker 3344

The 3-judge Bench of Chelameswar, CJ., A.K Basheer and K.M Joseph, JJ. addressed the questions regarding contempt jurisdiction of the Court and relevant procedures to be followed for the same:

(i) Whether a contempt case such as the one sought to be presented before this Court, which is not either moved by the Advocate General or by a person after duly obtaining consent of the Advocate General can be placed before the High Court on the judicial side or should it be considered by the Chief Justice on the administrative side as opined by a Division Bench of this Court in its order dated 19.2.2007 in an unnumbered Cont. Case (Crl.) of 2007 = 2007 (1) KLT 897 (One Earth One Life v. Sindhu Joy);

(ii) Whether it is competent for the Chief Justice or a Judge nominated by him thereupon to take a decision whether a contempt case should be registered and placed before the appropriate Bench for preliminary hearing…

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Self Financing Para Medical Managements Assn. v. State of Kerala, 2014 SCC OnLine Ker 28526

The Division Bench of K.M Joseph and A.K Jayasankaran Nambiar, JJ., declared that the State Government has no power to fix the fee structure in respect of the para-medical courses conducted by self financing institutions save to the limited extent of ensuring that they were not exploitative in nature and that no capitation fee was charged. It was further declared that any restriction, by the State Government, on the autonomy of the self-financing institutions in the matter of conduct of paramedical courses in the State, would be effected only through enacted law of the State legislature and not through executive orders.

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♦Did you know?  When the Collegium proposed Justice K.M. Joseph’s name  for elevation to the Supreme Court the first time it was rejected by the Union government[5]. It was only after the Collegium reiterated his name a second time that he got elevated to the Supreme Court.[[6]]


As the Chief Justice of High Court of Uttaranchal (2014-2018)


One of the most significant judgment delivered by Justice K.M. Joseph as the CJ of Uttranchal High Court was in Harish Chandra Singh Rawat v. Union of India, 2016 SCC OnLine Utt 502, wherein he had quashed the imposition of President’s Rule in 2016 by the BJP led Union government in the state of Uttarakhand. His decision in this case was of far reaching political implication as it invalidated the President’s rule imposed by the Governor and restored the Harish Rawat led Congress Government in Uttarakhand. It was one of the rare instances where the Court had restored the previous government after striking down the Governor’s rule.[[7]]


†Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://web.archive.org/web/20130628090239/http://www.highcourtofkerala.nic.in/kmjoseph.html

[2]https://www.scobserver.in/judges?id=justice-k-m-joseph

[3] Ibid.

[4] 2003 SCC OnLine Ker 218

[5] https://www.scconline.com/blog/post/2018/04/27/heres-why-centre-asked-the-collegium-to-reconsider-justice-km-josephs-elevation/

[6] https://indianexpress.com/article/who-is/who-is-justice-kuttiyil-mathew-joseph-5152643/

[7] https://www.scobserver.in/judges?id=justice-k-m-joseph

Op EdsOP. ED.

Introduction

“There can be no life without change, and to be afraid of what is different or unfamiliar is to be afraid of life.”

— Theodore Roosevelt

Arbitration is often hailed for its exemplary flexibility and time effective process, as an ingenious dispute resolution mechanism. With physical hearings of courts, tribunals, etc. coming to a halt[1], Covid-19[2] pandemic made virtual hearings, the new normal. Virtual arbitration or even virtual adjudication is an unconventional eventuality that has been spurned upon the legal fraternity across oceans. Wherein, the legal fraternity was used to appearing in person before the courts or various tribunals, everyone has been thrust to a world of remote hearing, as a matter of urgency and desperation so that the judiciary is not overburdened due to a major time lapse.

It is often said: “justice delayed is justice denied”. In order to tackle the preceding issue, the Indian judiciary came up with effective solutions to move forward with their work and manage the rise of cases as they come, as justice never sleeps. Howbeit, there was a certain lack of illumination in regards to our alternate dispute resolution mechanism i.e. arbitration. Wherein our country and judiciary hails themselves to be a pro-arbitration regime, they sure have failed to take charge to emphasise that stance. With hearings in arbitration hardly moving past the initial stage, we have become what one might call “stagnant”. As a developing arbitration regime, being stagnant in this time and day is unpropitious news. In order to avoid becoming a dinosaur in the arbitration community, our country would have to take major significant steps to curb the conundrum which our country does not fully realise.

Vis-à-vis the aforementioned inception, the authors have penned down their thoughts on virtual arbitration in India. The article highlights the benefits and downfalls in virtual hearings in arbitration through an analysis undertaken by White & Case, elucidates the existing procedural framework and deals with the legal and ancillary issues subsisting and posed by the Covid-19 pandemic, concluding with the way forward for India to effectively adapt and tackle the predicament in order to become a hub for arbitration in the future.

A statistical analysis by White & Case

Internationally renowned firm, White & Case, in association with Queen Mary University of London and School of International Arbitration conducted a survey.[3] It stated that the use of virtual hearings has been brought upon as a result of Covid-19 pandemic. It has allowed for people to evaluate the alternatives available to in-person hearings.[4]

Inter alia, the survey pinpointed the wish of the people and exhibited their opinion on virtual arbitration hearings. When posed with the question of procedural delay and scheduled hearing dates which would be hampered as a result of this pandemic, 79% surveyors opted for advancing with virtual hearing on the pre-decided date rather than uprooting the process and causing a procedural delay, 16% opted for postponing the hearing and 4% opted for an award to be delivered based on the documents submitted in front of the Tribunal.[5] So much so, that 40% of arbitrators said they would do without an oral hearing for any procedural matter[6] and 87% would prefer to hold a virtual hearing if an in-person hearing is not an alternative.[7]

It even highlighted the advantages of virtual hearings with 65% going for more benefits of more available dates for hearing, 58% highlighting greater efficiency through use of technology, 55% opting for greater procedural and logistical flexibility, 34% choosing less environmental impact compared to in-person hearings inter alia.[8] Speaking of disadvantages, 40% each chose multiple time zones issues and harder in-between hearing conversations between client and counsel, respectively. 38% stated concern over controlling their witnesses and their credibility, 35% each over technical malfunctions and screen fatigue respectively. Confidentiality and cybersecurity also found 30% of people voting for it as a concern for virtual arbitration. 27% and 15% of the people voted for difficulty in reading arbitrators and other participants and expressed concern on arbitrator’s ability to confer during sessions respectively. Last but not the least ethical or procedural issues and enforcement of awards stood at 11% and 8% respectively.[9]

It is clearly visible from the above survey that virtual arbitrations are not the pariah as they are made out to be. Innovation is termed as need of this hour and in hindsight, by hiding behind the curtain of a pretend pro-arbitration stance, India has basically shot themselves in the foot.

Procedural framework for arbitrations: The rudiment of all dispute resolution

A concrete foundation for a prospective arbitration is actualised via the legal framework that is made applicable to it. It is of paramount significance that the governing/procedural law, substantive law of the contract and the seat is selected as per the peculiar requirements of each party at the time of drafting of the arbitration clause or agreement. India has been taking leaps to strengthen its own procedural framework so as to advance India’s ease of doing business rankings and establish the nation as a growing hub of alternate dispute resolution (hereinafter “ADR”). The Arbitration and Conciliation (Amendment) Act, 2015[10] (providing time limitations, fast-track procedures, narrowing scope of public policy, etc.), the Arbitration and Conciliation (Amendment) Act, 2019[11] (providing for the courts to make reference to certain arbitral institutes, formation of the Indian Arbitration Council, mandating confidentiality, etc.) and the Arbitration and Conciliation (Amendment) Act, 2021[12] (removing qualifications for empanelling as arbitrator) have been notified by the Government. The State is cognizant of institutes like International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), London Court of International Arbitration (LCIA), Australian Centre for International Commercial Arbitration (ACICA), International Centre for Settlement of Investment Disputes (ICSID), etc. that have tried to minimise disruptions from the pandemic by issuing relevant virtual protocols. There is much to learn from these soft law instruments and these can be used as guiding principles while creating the Indian arbitral framework.

Covid-19 and arbitral best practices

With the onset of the Covid pandemic, arbitral friendly nations and institutions perceived the inevitability of the evolution of virtual hearings and accepted this challenge with utmost compassion. Choosing the right arbitral institution with facilities such as e-filing of documents, live help-desk features, panel of emergency arbitrators, panel of experts on various subjects, protocols for online dispute resolution, cybersecurity policies, etc. would solve half the dispute at hand. Many of these institutes like Singapore International Arbitration Centre, World Intellectual Property Organisation (WIPO), etc.  have also been using, third-party management services such as those of Maxwell Chambers to meet their logistical needs through curated meeting rooms, breakout rooms, screen-sharing facilities, etc.

Timely case management conferences to determine procedure and choosing the right meeting platform are the cornerstone of a successful arbitral session.[13] Necessity is the mother of invention and India needs to provide impetus for the creation of platforms like Cisco Webex, Zoom, etc. with end-to-end encryption under its Make in India and Digital India initiatives. Online meeting etiquette dictates that meeting time be decided keeping in mind the difference in time zones (if any)[14] of the parties, giving proper notice, providing a list of participants who will be present in the meeting and sticking to the agenda of the meeting.[15]

Speedy and complete justice can be guaranteed by tweaking procedure to include more partial awards for different issues, accepting only documentary submissions for adjudicating upon issues and no evidence[16], allowing very limited arguments on certain contentions,[17] identifying issues that can be resolved without witness statement or expert evidence, etc.[18] A documents-only procedure as adopted by SIAC[19] or use of Redfern Schedule for limiting documentary production[20] are suitable examples of a hybrid procedure. The only way to conceive virtual arbitrations in India is through digitisation, both in terms of procedure adopted in the arbitration and in working of appellate court. Arbitral awards in India have to be rendered in writing[21], have to bear the arbitrators’ signatures[22], have to be delivered to the parties[23] and have to be submitted to Court in order to be recognised and enforced. However, Section 5 of the Information Technology Act, 2002[24] (hereinafter “the IT Act”) provides that a digital signature has the same effect as that of a paper signature and thus, digitally signed copies/scanned copies sent via e-mail[25] and original copies sent via post (as is being done by the leading arbitral institutes[26]) both can be filed in Court for enforcement of the award.

Legal and ancillary issues that converge in virtual arbitrations: Can they be dealt with?

Various challenges may be posed in virtual arbitrations but the authors herein have discussed some core issues to exhibit how they can be dealt with effectively by the parties, Tribunal and the appellate courts. The fundamental principle of each solution is that every virtual arbitration will endorse mutual consent juxtaposed with party autonomy, to ensure equity.

I. Accessibility to internet services and technology

Virtual arbitrations in the time of a pandemic will go on to secure justice for all as enshrined under Article 39-A of the Constitution.[27] However, as of now, only 55% of the Indian population has access to internet[28] which is now a protected right under Article 19 of the Constitution.[29] Only 23% of the urban and 4% of the rural population possesses computers,[30] which creates obstacles in accessibility to technology for virtual hearings. In the same way, certain hardware and infrastructural requirements are also supposed to be met.[31] Although infrastructure comprising hardware, LAN, DG set, UPS, internet connectivity and CIS software is available in the premises of almost all the lower courts, their usage has to be completely overhauled. E-governance initiatives in India, recognising the lacuna of accessibility of internet services and technologies, creation of more common service centres (CSS) and legal aid cells around the country and promotion of institutionalisation of arbitration can plug these administrative loopholes and allow virtual arbitrations to flourish in India.

II. Arbitrability of complex disputes

While simple contractual matters may easily be dealt with in virtual arbitrations, multi-party matters with multiple claims and voluminous evidence may render the process inaccessible.[32] While considering resolution of complex disputes the Supreme Court held that, “There appears to be need to consider categories of cases which can be partly or entirely concluded ‘online’ without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.”[33] Modified procedures such as considering the nature of the dispute before passing an order/direction for e-disclosure, retention or preservation of e-documents[34] will have to be made the norm. Therefore, wherever possible, virtual recourse must be sought.

III. Technological complexities

Videoconferencing facilities have been set up across various Benches of the Income Tax Appellate Tribunal (ITAT) such as Ahmedabad, Delhi, etc., turning them into e-courts,[35] and an e-filing portal has been instituted for the ITAT.[36] Digital Negotiable Instruments Courts have been set up by the Delhi High Court’s State Court Management Systems Committee (SCMSC) for disposal of cheque dishonour cases.[37] These examples are testament to the fact that if proper protocols and logistics are adopted, virtual arbitrations can be made a reality too.

The key is to conduct training/orientation sessions for the parties, arbitrators, etc. to gauge the features of the meeting platform such as chat and breakout features and to families themselves with trouble-shooting features of the meeting platform.[38] Adequate training of judicial officers in computerisation is necessary and is underway,[39] although it needs to be ramped up exponentially. Similarly, the SIAC has been training a number of their counsel in the Secretariat to provide technological support.[40] Thus, even though differing technical capabilities may complicate the inception of virtual hearings,[41] user-friendly platforms, proper training and spreading awareness about e-initiatives can help in navigating through them.

A “data disruption” and “meeting disruption” policy will cater to technological issues, so that parties are not excluded from any part of the hearing without their consent.[42] These include internet connectivity issues, dropped calls, audio-video disruption, etc.

IV. Cybersecurity, privacy and data protection

Various cybersecurity protocols such as ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) can be referred to secure safety of the parties. A prior agreement on the participants allowed into the meeting, proper identification and verification of participants done before the commencement of the virtual hearing, etc. will ensure that there is no breach of trust amongst the parties involved.

The right to privacy being a fundamental right in India, private information disseminated during such proceedings must be handled with caution. The protocols provided under the Personal Data Protection Bill, 2019[43] and the Personal Data Protection Bill, 2018 and the EU General Data Protection Regulation (“GDPR”) can be followed for limited processing, storage, transmission and erasure of information for all principals. Express consent for processing information and record of said processing will rein in data protection and privacy concerns. Password protected and secured personal networks can be accessed for internet connectivity, rather than public networks. Filing of documents, correspondence and posting of orders in e-format can be done through secure online channels/dockets[44], on a cloud service,[45] through a licence fee-based documents sharing platform, so that it is accessible to all parties, as is their right.[46]

V. Confidentiality

Section 42-A, added by the 2019 Amendment Act imposes data confidentiality obligations on the parties and the arbitrator. Confidentiality, an implied aspect of arbitration,[47] may be achieved by the arbitrator by binding all parties and participants involved to a confidentiality undertaking. Adopting a confidentiality clause or rules of a designated arbitration service provider that require specified confidentiality levels, can also have the same effect. Professional meeting software can be used to ensure meetings are end-to-end encrypted and are not infiltrated by Trojan horses or bugs and have provisions of breakout rooms for privileged communication.

VI. Admissibility and veracity of virtual evidence

The definition of “evidence”[48] under the Indian law includes all statements made by a witness in  court and documents, including e-documents (they are legally recognised as records[49]) produced in court. The Supreme Court has held that evidence recorded in videoconferencing “would be as per procedure established by law”[50] and therefore, would be well within the periphery of due process of law. In fact, very recently, the Delhi High Court asked appearing counsel to submit video recordings along with concise documents containing their arguments to adjudicate upon a matter virtually.[51]

So long as the accused and/or his pleader are present while the evidence is recorded by videoconferencing, the evidence is said to be taken in the “presence” of the accused[52] and will be admissible. If the videoconference is set up in the presence of the Judge himself, the requirements of recording evidence under Sections 274[53] and 275[54] of the Code of Criminal Procedure, 1973 will be fulfilled too.[55] The natural corollary, ergo, is to apply these ratio decidendi to virtual arbitrations as well, as they are ejusdem generis to court proceedings. Commissions issued by the courts under CrPC have been permitted to record evidence of unavailable witnesses, through video conferencing.[56] Similarly, the court may issue commissions under the Arbitration Act[57] to provide electronic evidence to the Tribunal and penalties/disadvantages may be imposed on the persons failing to attend them.[58]

VII. Witness examinations

India is not completely amiss of the merits of virtual examinations and has allowed them in the past.[59] It has been stated that videoconferencing would allow seeing the witness better, observing their demeanour, replaying or rehearing their deposition and testimony.[60] Witness statements and their examination must be sought on live meeting, under oath[61] and in the presence of the learned arbitrator and relevant court officers, after seeking proof of identity of the witness. All relevant exhibits and documents being used in the process of examination must also be provided to the opposing party prior to the commencement or shared at the time of the hearing with the opposing party[62] and to the witness for their perusal.[63] If questions put to the witness and the answers given by them are typed by a stenographer and made visible on the screen, it will ensure transparency in the process.[64] Reasonable opportunity must be given to the counsel to object to questions and statements put to their witnesses.

The Tribunal must not conduct the witnesses examination or allow adduction of evidence in the absence of parties, unless the parties have otherwise chosen to remain absent, despite proper notice.[65] Despite the concerns surrounding virtual arbitrations, they work to eliminate visual, behavioural and verbal bias that is created in the mind of the Tribunal and put the spotlight solely on the testimony presented.

VIII. Witness coaching

To ensure that the witness is not coached/prompted, a party may require its duly empowered legal representative to be present at the location of the witness, upon having sought the permission of the Tribunal. For a witness outside India, an officer of the Indian Consulate/Embassy may be placed in the room with the witness.[66] Moreover, the witness may be asked to show his surroundings via camera to prove that there is no one else present with him.[67] He should not be allowed to confer with his counsel,[68] use virtual backgrounds or use electronic devices other than the computer during the hearing.[69]

IX. Challenge to proceedings

If awards pronounced in virtual arbitrations are challenged under the garb of unfair treatment of parties or the public policy umbrella, the credibility of such arbitrations is thrown out the window. A work-around can be for parties to agree to not challenge the award or seek its annulment on the ground that the proceedings were not held in-person.[70] Moreover, parties are estopped from challenging a mutually decided procedure[71] and strict interpretation of public policy[72] will render such challenges infructuous in the court of appeal. Furthermore, even the Supreme e-Committee draft rules suggest that proceedings conducted by way of videoconferencing are judicial proceedings.[73]

X. Costs

As per Section 31-A of the Act, all expenses incurred in connection with the arbitral proceedings are included in the definition of “costs” and as a general rule, the losing party bears such costs, unless there is an agreement between the parties stating differently. Some protocols require the requesting party to bear costs for videoconferencing facilities,[74] whereas some mandate equal cost sharing.[75] The Tribunal may also refuse the request to use novel technology upon an analysis of the unreasonable financial burden it lays down on parties.[76]

XI. Due process

Due process holds the Government subservient to the law of the land and protects individuals from the excesses of State.[77] Conscious use of technology like teleconferencing and videoconferencing should be encouraged as they can replace the formal physical settings and manifest into a more efficient and smoother arbitral process.[78]

The Arbitration and Conciliation Act, 1996[79] (hereinafter “the Act”) or the 1985 UNCITRAL Model Law on International Commercial Arbitration[80] on which it is based, have no overt references to virtual arbitrations. Section 18 of the Act only talks about the treatment of parties with equality and the provision of adequate opportunity to present their case, in line with the principles of natural justice. The juristic principle of audi alteram partem is enshrined under Section 18 and the principle constitutes a fundamental policy of Indian law.[81] Thus, it only needs to be ensured that:

(i) There is availability of proper internet and infrastructure for all the parties involved that provides them a sufficient opportunity to argue their case.

(ii) No party is heard in the absence of the other as it would constitute a violation of fundamental principles of natural justice.[82]

(iii) Real-time transcripts or video records of the proceedings[83], will also be available to the differently abled.

(iv) Interpreters will be used, whether in a staggered manner or simultaneously.[84]

Section 19(2) gives the parties autonomy to choose the procedure to be followed in the proceedings, which could be virtual or physical hearings. If a procedure is not agreed to, Section 19(3) mandates the Tribunal to conduct proceedings in the manner it considers “appropriate”, ex aequo et bono, after giving due reasoning[85] and ensuring that requirements under Section 18 are met.[86] Thus, virtual hearings may be conducted by the Tribunal either via oral hearings or on the basis of documents and other materials submitted by the parties.[87] Brief, coherently structured written submissions also reduce the likelihood of error and help in saving time.[88] Since Section 24(3) ensures full disclosure of applications filed, reports and documents referred to etc. between the parties and the arbitrator, the mandate of due process will definitely be upheld.

Objections to virtual hearings

Before taking such a decision, Tribunals are to remain flexible[89], consider all the circumstances and consequences of the Covid-19 pandemic, the pertinent reasons for proceeding with the virtual hearing, the nature and complexity of the case, adequate time for the parties to prepare, enforceability of such an award and adopt procedures that are not contrary to the agreement between the parties.[90] An opportunity will be given to the objecting party to raise their concerns and the Tribunal will address said concerns and record reasons for its decisions.[91]

Section 20(3) of the Act allows the Tribunal to “meet at any place it considers appropriate for consultation.”[92] Similarly, a switch from the “physical venue” to the “online virtual venue” can also be done if it is deemed necessary. In Adani Ennore Container Terminal (P) Ltd. v. Kamarajar Port Ltd.,[93] the Madras High Court ordered the parties to the dispute to have a Zoom meeting to see if there is any scope for mediation between them.

Section 24 allows documentary or oral hearings, but does not mandate in-person hearings and cannot be equated to the latter necessarily.[94] “In person” may simply mean a live, adversarial exchange which may be done virtually.[95] Evidence taken over videoconferencing also suffices the requirements under Section 273[96] of the Code of Criminal Procedure, 1973 as the witness is perfectly visible. Electronic discovery of documents is permissible under Section 24 and the scope of the discovery can be limited to what is strictly necessary.[97] This is useful when conducting virtual arbitrations and is a widely accepted practice.[98]

Therefore, it can be deciphered from the above that not only is it possible to conduct virtual arbitrations, but they also have inherent benefits that will reflect in any such proceeding.

Overview and analysis

Virtual arbitration in essence cater to the needs of a section of the society that are completely forgotten in conventional arbitrations in India — the differently-abled individuals. Chairperson of the e-Committee of the Supreme Court recently wrote a letter to the Chief Justices of the High Courts to make provisions for the disabled and physically challenged in terms of filing cases, attending proceedings in an accessible manner, etc.[99]  Accessibility is a natural corollary to Articles 14, 19(1)(g) and 21 of the Constitution and virtual arbitrations help solve the issue of accessibility for all. Meetings can be accessed from the comfort of a home and interpreters/translator/sign language experts can provide specialised aid to the parties/counsel to make their submissions,[100] which may not be possible in an open, in-person hearing.

Effective access to justice is a part of the basic structure doctrine, conceptualised by the Supreme Court.[101] Under the 1996 Act, disposal of both domestic and international commercial arbitrations disputes is time-bound[102] which propels speedy justice in India. However, due to the pandemic, conventional arbitrations have been adjourned sine die which is against the mandate of the Act. Complications may come as part and parcel with virtual hearings, but the solutions are equally ubiquitous. Early case management conferences, a widely accepted practice in all leading arbitral institutions and can help determine the applicable procedure, rules, logistics and clarify the concerns of the parties towards this revolutionary virtual experiment. Prospective arbitrators, technical specialists, etc. can be trained at par with international standards[103] and empanelled in alternate dispute resolution (hereinafter “ADR”) Committees set up by the High Courts in their jurisdiction. The 2020 Ordinance promulgated by the President has also omitted the Eighth Schedule to the Act which provided for minimum qualifications to become an arbitrator, thereby, opening the door for everyone to set foot in the realm of arbitrations.[104] Gaps in technological knowhow continue to challenge the proposed scheme of virtual ad hoc arbitrations. The learning curve is steep but proper coaching, awareness about third-party management services and institutional arbitrations, grant-in-aid for infrastructural costs and good faith between the parties can plug the administrative loopholes that exist in this realm. There also have been various discussions about use of artificial intelligence to aid the user with management and automated service processes.[105] Various protocols have been effectuated to cater to cybersecurity issues,[106] such as the ICC issued ICC-NYC Bar Protocol[107] or the IBA issued Cybersecurity Guidelines.[108]

It is rightly said that justice delayed is justice denied. Therefore, rather than running away from the problem, we must face the challenge head on and with utmost vigour. Arbitration matters that have been stuck in oblivion due to the pandemic can finally be put to rest by the mutual cooperation of the parties[109] and thus, it is necessary that all stakeholders come together and support each other to make virtual arbitrations a new reality.


Associate at Jurisconsultus, Advocates, Business & Commercial Solicitors. Author can be reached at aafreenchoudhary1@gmail.com.

†† LLB 2021, Lloyd Law College, Greater Noida can be reached at dhruv.srivastava4@gmail.com 

[1]Mohamed S. Abdel Wahab, Chapter 1: Dispute Prevention, Management and Resolution in Times of Crisis between Tradition and Innovation: The COVID-19 Catalytic Crisis in Maxi Scherer, Niuscha Bassiri, et al. (eds.), International Arbitration and the COVID-19 Revolution.

[2] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog.

[3]White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.

[4] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 21.

[5] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 20.

[6] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 14.

[7] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 22.

[8] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 23.

[9] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 24.

[10] Arbitration and Conciliation (Amendment) Act, 2015.

[11]  Arbitration and Conciliation (Amendment) Act, 2019.

[12] Arbitration and Conciliation (Amendment) Act, 2021.

[13]In a recent letter written to Justice Dr D.Y. Chandrachud, the Madhya Pradesh State Bar Council has highlighted the glitches, disruptions, heavy data load and complicated user interface of the “Jitsi” platform which is being used by courts all across India to conduct virtual hearings. See Khadija Khan, Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/Webex: M.P. Bar Council Chairman writes to Justice D.Y. Chandrachud (29-6-2021, 7.30 p.m.), Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/ Webex: M.P. Bar Council Chairman Writes to Justice D.Y. Chandrachud (barandbench.com).

[14]Indian Arbitration Forum, Protocol on Virtual Hearings for Arbitrations, Para 2(a)(ii), p. 2, September 2020 accessed at <https://indianarbitrationforum.com/wp-content/themes/iaf/assets/IAF-Protocol-on-Virtual-Hearings-for-Arbitrations-Oct-2020.pdf> (indianarbitrationforum.com).

[15]International Chamber of Commerce, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic, Para 8, p. 2, 9-4-2020 accessed at <https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf> (iccwbo.org).

[16] Satpal P. Malhotra v. Puneet Malhotra, 2013 SCC OnLine Bom 689.

[17] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228; Also see Sohan Lal Gupta v. Asha Devi Gupta, (2003) 7 SCC 492.

[18] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdfPara 8, p. 2.

[19] Singapore International Arbitration Centre, SIAC Covid-19 Frequently Asked Questions (FAQs) (30 June, 4.39 p.m.), SIAC Covid-19 Frequently Asked Questions (FAQs) <www.siac.org.sg/faqs/siac-covid-19-faqs>.

[20] See Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018; also see, Thiess Iviinecs India v. NTPC Ltd., 2016 SCC OnLine Del 1819.

[21] The Arbitration and Conciliation Act, 1996, S.  31(1).

[22] The Arbitration and Conciliation Act, 1996, S. 31(1).

[23] The Arbitration and Conciliation Act, 1996, S. 31(5).

[24] Section 5, Information Technology Act, 2002.

[25] Delhi High Court, Guidance Note for Conducting Arbitration Proceedings by Video Conference 2020, Para 2.3, p. 2, (30 June, 4.50 p.m.), Public Notice_QS9BF6S2KSA.PDF (delhihighcourt.nic.in).

[26] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at < http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.

[27]Constitution of India, Art. 39-A.

[28] Niti Aayog and United Nations, SDG India Index & Dashboard 2020-21 Partnerships in the Decade of Action, p. 136 (1-7-2021, 4:00 p.m.), accessed at <https://www.niti.gov.in/writereaddata/files/SDG_3.0_Final_04.03.2021_Web_Spreads.pdf>.

[29] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[30] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.),  <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in)

[31]72% of the judicial officers emphasised the development of better infrastructure and 8% wanted the internet facilities to be improved. See National Council of Applied Economic Research, Evaluation Study of eCourts Integrated Mission Mode Project (1-7-2021, 5.41 p.m.), Evaluation Study of eCourts Integrated Mission Mode Project <www.doj.gov.in/sites/default/files/Report-of-Evaluation-eCourts.pdf>

[32]TadasVarapnickas, Will COVID-19 Revolutionize Arbitration? What’s Next for Business and Arbitration?, TGS Baltic Webinar.

[33] Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560.

[34] Chartered Institute for Arbitrators, Protocol for E-Disclosure in International Arbitration, International Arbitration Protocol, Art. 3.1, p. 3  accessed at <www.ciarb.org/media/1272/e-iscolusureinarbitration.pdf>.

[35] Special Correspondent at The Hindu, e-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July 7.21 p.m.),  The Hindu.

[36] Press Information Bureau, Law Minister Shri Ravi Shankar Prasad Launches “itat e-dwar”, an E-Filing Portal of Income Tax Appellate Tribunal. Portal will Enable Online Filing of Appeals, Applications, Documents, etc. by Various Parties. Cases of Income Tax Appellate Tribunal should be Integrated in National Judicial Data Grid: Shri Ravi Shankar Prasad (1-7-2021, 3.34 p.m.), Press Information Bureau <www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1730394>

[37] Delhi High Court, Digital NI Act Courts, (1-7-2021, 2.20 p.m.), Digital NI Act Courts <www.delhidistrictcourts.nic.in/digitalnicourts.html>

[38] International Institute for Conflict Prevention and Resolution, CPR Model Procedural Order for Remote Video Arbitration Hearing, Para B(2) accessed at NEW: CPR’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings | CPR International Institute for Conflict Prevention & Resolution Inc. (cpradr.org); also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf >  Para B(ii) and (v), pp. 2, 9.

[39] Ministry of Law and Justice, Initiatives Towards Computerisation of Courts, Initiatives Taken by the Ministry of Law & Justice During the Two Years of the Present Government (1-7-2021, 5.35 p.m.), accessed at <https://lawmin.gov.in/sites/default/files/2year-achi.pdf> (lawmin.gov.in).

[40]Singapore International Arbitration Centre, Open Letter from SIAC President (1-7-2021, 3.15 p.m.), (Open Letter from SIAC Court President) Arbitration at SIAC during COVID-19.pdf

[41]Gabrielle Kaufmann-Kohler and Thomas Schultz, The Use of Information Technology in Arbitration, Jusletter, December 2005, at 62, available at <http://lk-k.com/wp-content/uploads/The-Use-of-Information-Technology-in-Arbitration.pdf> (hereinafter “Kaufmann-Kohler & Schultz”); Christoph Liebscher, The Healthy Award: Challenge in International Commercial Arbitration 243-273, 344 (2003).

[42] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.

[43] Personal Data Protection Bill, 2019.

[44] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr>

[45] Seoul International Dispute Resolution Center and KCAB International, Seoul Protocol on Videoconference in International Arbitration, Art. 4.3, 18-3-2020 accessed at <www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024>; also see Hogan Lovells Protocol for the Use of Technology in Virtual International Arbitration Hearings, Art. 3.2(a), p. 7, April 2020 accessed at  <https://www.hoganlovells.com/~/media/hogan-lovells/pdf/2020-pdfs/2020_04_09_hogan_lovells_international_arbitration_digital_hearing_protocols.pdf> (hoganlovells.com)

[46] Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131.

[47] Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc., (2008) 5 MLJ 254.

[48] The Evidence Act, 1872, S. 3.

[49] The Information Technology Act, 2000, S. 4.

[50] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601.

[51] Sat Prakash Soni v. Union of India, 2020 SCC OnLine Del 2027.

[52] The Code of Criminal Procedure, 1973, S. 273.

[53] Section 274 CrPC.

[54] Section 275 CrPC.

[55] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 19.

[56] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 20.

[57] Arbitration and Conciliation Act, 1996, Ss. 27(4) and (6).

[58] Arbitration and Conciliation Act, 1996, S. 27(5).

[59]International Planned Parenthood Federation v. Madhu Bala Nath, 2016 SCC OnLine Del 85; also see Twentieth Century Fox Film Corpn. v. NRI Film Production Associates (P) Ltd., 2003 SCC OnLine Kar 22.

[60]World Intellectual Property Organization, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at paras 19 and 20.

[61] Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551.

[62] Special Correspondent at The Hindu, E-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July, 7.21 p.m.), E-Court Launched at Income-Tax Appellate Tribunal in Chennai — The Hindu; Hogan Lovells , Art. 3.2(b), p. 7.

[63]See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog; Hogan Lovells  at Para 5(g), p. 9.

[64] Same protocol followed by the Bombay High Court in videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551; also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>  Para E(iv).

[65] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.

[66] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Paras 5(i) and (iii), p. 10.

[67] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 5(d)(iii), p. 9.

[68] Africa Arbitration Academy, Africa Arbitration Academy Protocol on Virtual Hearings in Africa, Para 2.1.4, p. 7, April 2020 accessed at <https://www.africaarbitrationacademy.org/wp-content/uploads/2020/04/Africa-Arbitration-Academy-Protocol-on-Virtual-Hearings-in-Africa-2020.pdf>  (africaarbitrationacademy.org).

[69] Recently, the Delhi District Court allowed a mutual application moved on behalf of the parties for the recording of evidence through videoconferencing. Guidelines were put forth by the court to ensure that the witness is not being tutored while evidence is being recorded and in case there appears to be any prompting on the side of the witness, or if he deliberately keeps disrupting his internet connection, the proceedings will be adjourned. This can be applied to virtual arbitrations.  See Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

[70] The Information Technology Act, 2000, S. 4; also see World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.10, p. 5.

[71]Jagjeet Singh Lyallpuri v. Unitop Apartments and Builders Ltd., (2020) 2 SCC 279.

[72]Govt. of India v. Vedanta Ltd., (2020) 10 SCC 1; also see Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131; also see Associate Builders v. DDA, (2015) 3 SCC 49.

[73] E-Committee of the Supreme Court of India, Draft Video Conferencing Rules, Para 3(ii) (1-7-2021, 6.20 p.m.) accessed at <https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2020/08/2020082629.pdf> (s3waas.gov.in).

[74] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.),  <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in) at Art. 9.1.

[75]World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.9(f), p. 5.

[76]International Chamber of Commerce, ICC Commission Report Information Technology in International Arbitration, Para 1.2, 2017 accessed at <icc-information-technology-in-international-arbitration-icc-arbitration-adr-commission.pdf> (iccwbo.org).

[77] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 have read the due process doctrine into Art. 21, making them in severable parts of each other.

[78]Law Commission of India Report No. 246, Amendments to the Arbitration and Conciliation Act, 1996, Point 16, p. 13 (2-7-2021, 8.40 p.m.)

[79] Arbitration and Conciliation Act, 1996.

[80] UNCITRAL Model Law on International Commercial Arbitration, 1985.

[81] Associate Builders v. DDA, (2015) 3 SCC 49.

[82] Sulaikha Clay Mines v. Alpha Clays, 2004 SCC OnLine Ker 79.

[83] E-Committee of the Supreme Court of India, Draft Model Rules for Live-Streaming and Recording of Court Proceedings, Para 10, p. 13 (30-6-2021, 1.15 p.m.), Rules on Live Streaming (mygov.in); also see Hague Conference on Private International Law, Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention, p. 98 (30-6-2021, 12.24 p.m.) <https://assets.hcch.net/docs/569cfb46-9bb2-45e0-b240-ec02645ac20d.pdf> (hcch.net); also see Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

[84] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 3.5, p. 7.

[85] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para D(iii).

[86] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228.

[87] The Arbitration and Conciliation Act, 1996, S. 24(1).

[88] Kiran Chhabra v. Pawan Kumar Jain, 2011 SCC OnLine Del 803.

[89] Narendra Kumar Anchalia v. Krishna Kumar Mundhra, 2002 SCC OnLine Cal 485.

[90] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Paras 18 and  22.

[91] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 2, p. 2.

[92]In line with this, the venue of arbitration was changed from Kuala Lumpur, Malaysia to London, due to the breakout of the Severe Acute Respiratory Syndrome (SARS) virus, which was designated as a mere physical change in Videocon Industries Ltd. v. Union of India, (2011) 6 SCC 161.

[93] 2020 SCC OnLine Mad 2708.

[94] Yvonne Mak, Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore (8-7-2020, 7.15 p.m.), Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore — Kluwer Arbitration Blog; <http://www.scconline.com/DocumentLink/Dgqf5o4W>.

[95] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para 23.

[96] Section 273 CrPC.

[97] Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018.

[98]Pyrrho Investments Ltd. v. MWB Property Ltd., 2016 EWHC 256; Da Silva Moore v. Publicis Groupe SA, 11 Civ 1279 (ALC) (AJP) (SDNY 2012) Judge Peck; Irish Bank Resolution Corpn. v. Quinn, 2015 IECH 175.

[99] ANI, Need to Create Accessible Infrastructure for Lawyers, Litigants, with Disabilities: Justice D.Y. Chandrachud to High Courts (29-6-2021, 12.40 p.m.), Need to Create Accessible Infrastructure for Lawyers, Litigants with Disabilities: Justice D.Y. Chandrachud — The New Indian Express.

[100]Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551 at Para 5.9.3.

[101]Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225 .

[102] Arbitration and Conciliation Act, 1996, S. 29-A.

[103] See New Delhi International Arbitration Centre Act, 2019, S. 29(1), No. 17.

[104] The Arbitration and Conciliation (Amendment) Act, 2021, S. 4.

[105] Aditya Singh Chauhan, Future of AI in Arbitration: The Fine Line between Fiction and Reality (29-6-2021, 8.51 p.m.), Future of AI in Arbitration: The Fine Line between Fiction and Reality — Kluwer Arbitration Blog.

[106] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>  at 14; also see Claire Morel de Westgaver, Cybersecurity in International Arbitration — A Necessity and An Opportunity for Arbitral Institutions (29-6-2021, 8.47 p.m.), Cybersecurity in International Arbitration – A Necessity and An Opportunity for Arbitral Institutions — Kluwer Arbitration Blog.

[107]ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) ICCA Reports n6-v4-A5-v4 (arbitration-icca.org).

[108]International Council for Commercial Arbitration, The ICCA-IBA Roadmap to Data Protection in International Arbitration accessed at ICCA-IBA Roadmap to Data Protection in International Arbitration: 2020 Edition (arbitration-icca.org).

[109]Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).