Justice Munishwar Nath Bhandari of Allahabad High Court transferred as Judge of Madras High Court.
Ministry of Law and Justice
[Notification dt. 16-11-2021]
President of India, in exercise of the power conferred by clause (l) of Article 217, Article 224 and Article 222 of the Constitution of India, after consultation with the Chief Justice of India, has made the following appointments/transfers:
|No.||Name (S/Shri)||Name of High Court|
|1.||Uma Shanker Vyas, Judicial Officer||As Judge of the Rajasthan High Court.|
|2.||Vikram D Chauhan, Advocate||As an Additional Judge of the Allahabad High Court.|
|3.||Shri Justice Joymalya Bagchi, Judge||Transferred from Andhra Pradesh HC to Calcutta HC.|
Ministry of Law and Justice
Notification dt. 25-10-2021]
“Democracy is a ceaseless endeavour. Democracy is a work in progress.”
— Nani Palkhivala
Lawyers are frontline defenders of the Constitution of India and, more than anyone else, require the protection as whistleblowers in court. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority that is vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into whole different area. Legitimate criticism of ruling is permissible but on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution.
Lord Denning, in 1968, Britain’s former master of rolls, had this to say to the law of contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.” It is the right of every man, in Parliament or out of it, in press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. We must rely on our own conduct itself to be its own vindication.
The origin of the law of contempt of courts in India can be traced back from the period of Ramayana and Mahabharata, where the courts were called as sabha and the king was called as sabhapati. Here the judicial function was administered by the sabhapati and justice has to be delivered as per the dharma. And at that time whosoever vilify the decision of sabhapati, would be liable for punishment. In ancient times the said law of contempt was used to maintain the dignity and integrity of the sabha and sabhapati and is not in codified form. It varies from empire to empire and king to king. As it is not codified, the meaning of contempt carries different meanings and interpretations as per religion and dharma.
As today, we call it that the origin of contempt of courts in India can be traced from England law but India has developed this concept and can be traced back from history. In England the Supreme Courts of Record from early times exercising the power to punish the contemnors who scandalises the Courts or Judges. This right was first recognised by the judicial committee of the Privy Council which observed that the offence of the contempt of court and the powers of the Indian High Courts to punish it are same as in the Supreme Court in England. The first Indian statute on the law of contempt i.e. the Contempt of Courts Act was passed in 1926.
The Contempt of Courts Act, 1971 comes into existence on 24-12-1971 with an objective to define and limit the powers of certain courts in punishing contempt of court and to regulate their procedure in relation thereto. Which means contempt jurisdiction enjoyed by the courts is only for the purpose of upholding the majesty of the judicial system that exists. While exercising this power, the court must not be hypersensitive or swung by emotions, but must act judiciously.
Contempt is defined under Section 2(a) of the Contempt of Courts Act, 1971 which says “contempt of court” means civil contempt or criminal contempt. Whereas “civil contempt” is defined under Section 2(b) which means wilful disobedience to any judgment decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to court. And on the other hand, “criminal contempt” is defined under Section 2(c) which means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
Any wilful disobedience of court order to do or abstain from doing any act is a civil contempt. Civil contempt arises when the power of the court is invoked or exercised to enforce obedience to court orders. On the other hand, criminal contempt is criminal in nature. It includes defiant disobedience to the Judges in the court, outrages of Judges in open court, libels on Judges or courts or interfering with the course of justice or an act which tends to prejudice the course of justice.
A person is guilty of a criminal contempt when his conduct tends to bring the authority and administration of law into disrespect or tends to interfere with or prejudice litigants during litigation.
Let’s take an example for better understanding the concept of contempt of court. Let’s assume a situation where the impact of contempt is of that nature, where a common man lost his faith in the judiciary. Let’s say, otherwise for a common man, if the local MLA came and getup and abuse the court, what respect the common man will have for the institution because the said MLA effectively taken away one important pillar of democracy.
As per the observations of Justice Wilmot in R. v. Almon made as early as in 1765:
“… And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of Judges, as apricate individuals, but because they are the channels by which the King’s justice is conveyed to the people.”
It is very conflicting in nature and difficult to understand that whether the law relating to the contempt of court is somewhere touches two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of speech and expression or not?
There is a very thin line between criticism and vilification. One of the basic principles of independence is that you are free to do anything which does not intervene in my independence. The same goes to determine whether it is a contempt or not? If you are criticising, it is valid but if you are vilifying or tried to degrade the integrity of the institution then it is a contempt.
Note: That the source of power of Supreme Court of India, to punish for its contempt is not from Section 15 of the Contempt of Courts Act, 1971 but it flows from Articles 129 and 142(2) of the Constitution of India.
The Supreme Court has emphasised upon the need for the contempt of court in the following words:
Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearless is the source of existence of civilisation in society. The writ issued by the court must be obeyed. It is the binding efficacy attaching with the commands of the court and the respect for the orders of the court which deter the aggrieved persons from taking the law into their own hands because they are assured of an efficacious civilised method of settlement of disputes being available to them wherein, they shall be heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the court is therefore viewed with the concern of the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.
The Supreme Court exercises this power to punish an act which tends to interfere with the course of administration of justice. The following inter alia have been held to constitute contempt of court: 
In several cases, private parties violating or flouting the Supreme Court orders have been held guilty of contempt of court:
Note: Contempt of court is a matter between the court and contemnor and hence, held, third parties cannot intervene. Intervention applications are thus not maintainable.
As per the Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975. In case of contempt other than the contempt referred to in Rule 2, the Court may take action:
A bare reading of Rule 3 helps us understand that there are 3 ways for initiating contempt proceedings. The first is suo motu, the second is the petition made by the Attorney General or the Solicitor General, and the third is on the basis of a petition made by any person and where criminal contempt is involved then the consent of the Attorney General or the Solicitor General is necessary.
As in necessary to understand that the Supreme Court of India is the supreme authority and the powers for the contempt of itself is a constitutional power vested to this Court, such power cannot be abridged or taken away even by legislative enactment. Whereas on the other side the Contempt of Courts Act, 1971 is a legislative enactment.
Although the law of contempt is largely governed by the Contempt of Courts Act, 1971. It is now settled law in India that the Supreme Court and the High Courts derive their jurisdiction and power from Articles 129 and 215 of the Constitution of India. This situation results in giving scope to “judicial self-dealing”.
It is the saying of the Supreme Court of India that a scurrilous attack on a Judge, in respect of a judgment or past conduct has in our country the inevitable effect on undermining the confidence of the public in the judiciary; and if confidence in judiciary goes administration of justice will definitely suffers.
Scandalising a Judge as a Judge is different from scandalising a Judge as an individual. The abovementioned assertions bring both freedom of speech and expression and contempt of court, in conflict, on one side of the coin, freedom of fairly and reasonably criticising judiciary increases its accountability but on the other side of the coin, the power of punishing contempt of court ensures free and non-obstructed administration of justice. When the proceedings are taken for vilification of the Judge, the question which the Court has to determine is whether the vilification is of the Judge as a Judge or it is a vilification of a Judge as an individual. That if the vilification of the Judge is as an individual, then he is left to his private remedies and the Court has no power to punish for contempt. In the former case, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt.
A distinction is drawn between a mere libel or defamation of a Judge personally and what amounts to a contempt of court. A mere defamatory attack on a Judge is not actionable but it becomes punishable when it is calculated to interfere with the due course of justice, or the proper administration of law by the Court. Alternatively, the test is whether the wrong is done to the Judge personally, or it is done to the public.
A fair, reasonable, temperate and legitimate criticism of the judiciary, or of the conduct of a Judge in his judicial capacity is permissible. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into a whole different area. Legitimate criticism of a ruling is permissible and on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution. That has to be where we stop, that is where the freedom of speech ends. Anything that/which undermines the institution rather than criticises the institution that is where you cross the bounds of legitimacy.
In Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago, the court said “… no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.
Although Section 5 of the said Act states that fair and reasonable criticism is not to be termed as a contempt of court. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. Judgments are open to criticism that must be done without casting aspersions on the Judges and the courts and without adverse comments amounting to scandalising the courts. Actual interference with the course of administration of justice is not necessary, it is enough if the offending publication is likely on if it tends in any way to interfere with the proper administration of law.
Note: That a contempt petition cannot be withdrawn by the petitioner as a matter of right. The matter is primarily between the court and the contemnor. It is, therefore, for the court to allow or to refuse withdrawal in the light of the broad facts of the case and more particularly whether respect for judicial process would be enhanced or reduced by the grant or refusal of withdrawal. It is for the court to determine whether the act complained of tending to scandalise the court if viewed with certain severity with a view to punishing the person would in the larger interest of the society enhance respect for the judicial process, or too sensitive attitude in such matter may even become counterproductive. The power to commit for contempt of court has to be exercised with greatest caution.
At last, I would like to conclude from the golden words of Lord Atkin in Andre Paul Terence Ambard v. Attoney General of Trinidad and Tobago “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
In the free market place of ideas criticisms about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice. As one should know where to stop and when to stop, as there is a very thin line difference between criticism and vilification. If one has the right to freedom of speech and expression as their fundamental right on one side then he has the duty/obligation to maintain dignity and integrity of the institution on the other side, as the freedom of speech and expression is not an absolute right it can be taken away in case someone tries to cross the justifiable limit permitted by the law of land.
For instance, if I fight a case and I loose, I should have the confidence to accept that I tried my case but it went wrong. I should not go home thinking the Judge was worried about what newspaper would say and that is why he decided against me. The day I get that feeling you have eroded my faith in judiciary.
 1765 Wilm 243 : 97 ER 94.
Supreme Court: A Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ. dismissed a writ petition filed by an advocate seeking to stall elevation of a judicial officer as a Judge of the Telangana High Court. The Supreme Court said that the petition was a gross abuse of the process of law and imposed costs of Rs 5 lakh on the petitioner.
The petitioner, B. Sailesh Saxena, is an advocate enrolled with the Bar Council of Telangana since the year 2000. He filed the instant petition seeking a writ of mandamus or an appropriate writ, order or direction directing the Union of India, State of Telangana and Registrar (Vigilance & Administration) of the Telangana High Court to consider his representation and take necessary action as per law. In effect, the petitioner stated that the recommendation of Venkateswara Reddy, Registrar General of the Telangana High Court should not be processed for elevation as a Judge of the High Court. The petitioner made various allegations against the Registrar General and other persons.
The Supreme Court took notice of the writ petition filed by the petitioner before the Hyderabad High Court which was decided vide B. Sailesh Saxena v. Union of India, 2018 SCC OnLine Hyd 267. The Supreme Court discussed the ramifications of that judgment.
In that petition, the petitioner claimed that he was a legal advisor for the family of a Member of Parliament and legal counsel for other politically connected persons. He claimed to have suffered on account of political prejudices as the petitioner and his family members were being subjected to torture due to harassment by police authorities. The High Court had noted that there are various criminal complaints pending investigation against the petitioner himself. One such complaint was lodged by the Registrar General (whose elevation as a Judge the petitioner was now trying to stall) in his capacity as the then Registrar (Judicial), pursuant to a direction issued by the High Court. The allegation was that the petitioner had filed writ petitions on behalf of fictitious non-existent persons.
The case of the petitioner before the High Court was that multiple FIRs were being filed with a view to harass the petitioner, and the complaint registered at the instance of the Registrar pursuant to the direction of the Court would also fall in the same category. The High Court was of the opinion that the Registrar as a responsible officer only followed the direction passed by the High Court and, thus, what the petitioner attempted to do was to derail the course of investigation in the complaints lodged against him.
The Supreme Court said that it was surprised at the brazenness of the petitioner now filing a petition under Article 32 of the Constitution. It was observed:
“We are surprised as the brazenness of the petitioner now filing the present petition under Article 32 of the Constitution of India, the aforesaid being the finding against him, to now somehow see that the elevation of [the Registrar General] does not take place on the account of these proceedings initiated by the petitioner. This is gross abuse of process of law.”
Observing that there exist sufficient safeguards in the system for appointment of Judges to the High Court, the Supreme Court explained:
“The process of appointment of judges to the High Court is under a well known established process where the collegium of the High Court considers recommending the names and in case of judicial officers by seniority and on merits. Thereafter, the proposed IB inputs and other inputs are obtained and the Government processes the names. The collegium of the Supreme Court has the benefit of all the material before taking a call on whether to recommend the name or not. The appointment takes place thereafter by issuance of warrants of appointment. “
The Supreme Court considered the endeavour of the petitioner as one of harassing the Registrar General of the Telangana High Court and abusing the court proceedings. The Court was of the view that since nothing else seem to deter the petitioner in such endeavours, imposition of costs seems to be the only solution.
The Court dismissed the writ petition with costs of Rs 5 lakh to be deposited by the petitioner with the Supreme Court Advocates On Record Welfare Fund. Additionally, the Bar Council of Telangana was directed to examine the petitioner’s conduct as a member of the “noble profession”. [B. Sailesh Saxena v. Union of India, WP (Civil) No. 555 of 2020, decided on 3-9-2021]
Advocates before the Court:
V. Chidambresh, Sr. Adv.
Aakash Sirohi, AOR
Elevation of 1 Advocate and 1 Judicial Officer as Judges in Chhattisgarh HC
Supreme Court Collegium has approved the proposal for the elevation of the following persons as Judges in the Chhattisgarh High Court:
1. Shri Sachin Singh Rajput, and
2. Shri Deepak Kumar Tiwari.
[Statement dt. 1-09-2021]
Proposal for elevation of Advocate Purushaindra Kumar Kaurav as Judge of Madhya Pradesh HC approved
Supreme Court Collegium has approved the proposal for the elevation of Shri Purushaindra Kumar Kaurav, Advocate, as Judge in the Madhya Pradesh High Court.
[Statement dt. 1-09-2021]
“Publish at your own peril” appears to be the philosophy adopted by our country in the last few decades after Independence. But it appears that a number of countries, both developed and developing, have repealed Laws making defamation a Criminal Offence.”
– Justice V. Ramasubramanian
M. Nedunchezhian v. Bar Council of T.N., 2015 SCC OnLine Mad 5573
Justice V. Ramasubramanian was born on 30-06-1958 in Mannargudi. He did his schooling in Hindu High School at Triplicane. He passed B.Sc from Vivekananda College in Chennai and completed his LL.B. from Madras Law College.
♦Did you know? Justice Ramasubramanian has immense contribution to Tamil language. He has authored a book in Tamil on the principles of law and justice in Kamba Ramayana (Kambanil Sattamum Neethiyum). He also wrote a series of articles under the caption “Beyond science” (Ariviyalukku Appaal) in a Tamil newspaper for 27 weeks.
♦Did you know? Justice Ramasubramanian added new vocabulary to the language of Tamil by running a column in a Tamil newspaper under the caption “Sol Vettai” for 50 weeks on the same lines as Barbara Walraff ran a column for Atlantic Times under the caption “Word Court and Word Fugitives.” Many readers of the newspaper got involved in this exercise and one of them was actually serving a life sentence in Puzhal Prison. As a mark of recognition of the involvement of a life convict in this exercise, the judge got the life convict out on parole for the Book release function and made the life convict sit on the dais with him and receive the first copy of the book.
Justice V. Ramasubramanian enrolled as a Member of the Bar on February 16, 1983. He practised in High Court of Madras, City and Small Causes Court, State Consumer Commission and District Consumer Forum, Central and State Administrative Tribunals, Chennai. His mainly practised in Civil and Constitutional matters and was specialized in service matters.
Justice Ramasubramanian had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:
He was appointed as an Additional Judge of the Madras High Court on 31-07-2006 and became permanent Judge on 9-11-2009. He continued to serve in the Madras High Court until 2016, when he was transferred to the common High Court for Andhra Pradesh & Telangana.
♦Did you know? He was transferred on his own request to the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh with effect from April 27, 2016.
♦Did you know? After the bifurcation and the creation of a separate High Court for the State of Andhra Pradesh, he was retained as a Judge of the High Court of Telangana at Hyderabad w.e.f. January 1, 2019.
Justice Ramasubramanian was elevated as the Chief Justice of Himachal Pradesh High Court on 22-06-2019. He relinquished the charge on 23-09-2019 (forenoon) on being elevated as a Judge of Honourable Supreme Court of India.
♦Did you know? At the time of his appointment as a judge of Supreme Court, Justice Ramasubramanian was at 42nd number in the nationwide seniority list. The Supreme Court collegium while recommending Justice Ramasubramanian said it “is conscious of the fact that in the seniority of judges hailing from the Madras High Court” he is in second position and after his appointment, “there will be two judges on the bench of the Supreme Court from the Madras high court.” 
♦Did you know? Justice Ramasubramanian recuses himself from hearing a plea of Kerala’s People’s Democratic Party (PDP) leader Abdul Nazir Maudany, who is an accused in the 2008 Bengaluru serial blasts case, seeking to allow him to go to Kerala and stay there till the trial is concluded.
The 3-judge bench comprising of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ set aside the RBI circular that had prevented financial services from trading in crypto-currencies, such as Bitcoin and Ethereum.
According to Justice Ramasubramanian RBI’s circular had failed to demonstrate as how the virtual currency trading was causing harm to banks and other types of financial institutions.
The 3-judge bench comprising of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ upheld a Kerala High Court order that had directed Kapico Kerala Resorts to cease encroaching land on Vaamika Island.
The Court held that the decision in Vaamika Island, (2013) 8 SCC 760 was rendered at the stage of special leave petitions and though the Court refused leave, it went on to affirm the findings of High Court, recording detailed reasons therefore. Further, the appellants cannot escape the findings recorded in the said case and once it is found that the main issues arose in common for both the islands and dealt with in common by High Court, had received a seal of approval from Supreme Court by a reasoned order. Further, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment.
In an important judgment with regards to the jurisdiction of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) to look into fraud in an Insolvency and Bankruptcy Code (IBC) proceeding, the 3-judge bench of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ held that the NCLT and NCLAT enjoyed the jurisdiction to look into fraud under Section 65 of the IBC.
The Court while deciding the second issue i.e. whether a High Court could interfere under Article 226/227 of the Constitution of India with a NCLT order in a IBC proceeding and thereby ignore the statutory remedy of appeal to the NCLAT, held that a High Court could interfere in instances where the NCLT had lacked the jurisdiction to entertain a proceeding in the first place.
“NCLT and NCLAT would have jurisdiction to enquire into questions of fraud, they would not have jurisdiction to adjudicate upon disputes such as those arising under MMDR Act, 1957 and the rules issued there under, especially when he disputes revolve around decisions of statutory or quasi judicial authorities, which can be corrected only by way of judicial review of administrative action.”
While interpreting Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of R.F. Nariman*, S. Ravindra Bhat and V. Ramasubramanian**, JJ held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.
Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296
“National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.”
While deciding not to grant the interim relief prayed by the petitioners, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ directed that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.
“…right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).”
“The relief of reinstatement granted by the Tribunal, was too big a pill even for the complainant companies, and perhaps Cyrus Mistry, to swallow.”
Concluding the corporate sage in the Tata-Mistry Row, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has answered all questions in favour of Tata Sons and upheld the removal of Cyrus Mistry as Chairman by the Tata Sons.
The Court observed that
“NCLAT appears to have granted the relief of reinstatement gratis without any foundation in pleadings, without any prayer and without any basis in law, thereby forcing upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.”
In a case pertaining to the brutal gang-rape and assault of a 19-year old girl, also known as Hathras Gang Rape Case, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ, while observing that the perception and pessimism are not without justification and directed the CRPF to provide security to the victim’s family and witnesses within a week “in order to allay all apprehensions and only as a confidence building measure”.
“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”.”
While refusing to interfere with the Scheme of sale of electoral bonds by the Political Parties, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V, Ramasubramanian, JJ has held that the operations under the Electoral Bonds Scheme are not behind iron curtains incapable of being pierced.
The Court also observed that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels.
Attorney General for India v. Satish, 2021 SCC OnLine SC 42
In a Special Leave Petition (SLP) filed against the controversial Bombay High Court judgment, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ stayed the release of accused whose sentence was cut to 1 year by the High Court on the ground that there was no skin to skin contact with victim.
“Court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment”
While staying the implementation of all the three farms laws until further orders, the 3-Judge Bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., opined that a stay on implementation of the farm laws may alleviate the hurt feelings of the farmers and invigorate them to come to the negotiating table with confidence and good faith.
“While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others.”
“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.”
While refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench consisting of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ opined that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.
In a PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction, the 3-Judge Bench of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., has emphasized on need to adopt eco-centric approach and issued directions to be followed by the Government as the State as well as the Central Government have a duty to preserve the endangered species.
In an important and far-reaching verdict deciding the question as to “whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day?”, the 3-judge bench of S.A. Bobde*, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has held that such vote would remain valid and if held otherwise, such a situation will create endless confusion and needless chaos.
“…to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty.”
Recognising the need of adherence to the regulatory principles of transparency, non-discrimination and non-predation sought by TRAI, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has directed telecom giants Bharti Airtel and Vodafone-Idea to disclose information/details regarding segmented offers to TRAI and also asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.
Sudha Singh v. State of U.P., 2021 SCC OnLine SC 342
Setting aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., held that there is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.
Dismissing the writ petition, the 3-judge bench of S.A. Bobde*, A.S. Bopanna and V. Ramasubramanian, JJ has dismissed the claim of certain District Judges to club their services rendered as advocates with the service rendered by them as Judicial Officers, for determining their eligibility for elevation as High Court judges.
The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ while explaining the scheme of provisions under the Central Excise Act, 1944, laid down elaborate principles that the Adjudicating Authorities has to keep in mind while determining the value of excisable goods.
The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has refused to interfere with the dismantling of INS Viraat, the oldest serving warship in the World.
“…while appreciating the sentiments of the petitioners, we are afraid that we cannot do anything at this stage and in these circumstances.”
While rejecting the transfer petition, V. Ramasubramanian*, J held that the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. However, when a case is at its final stage, the Court will be extremely reluctant to order the transfer, as it may derail the entire process.
Ankita Meena v. University of Delhi, 2021 SCC OnLine SC 36
Setting aside the judgment of Delhi High Court where the Court refused to interfere with the decision of the University denying permission to the applicant to appear in 4th Semester LL.B Examination, the 3-judge bench of S.A. Bobde, CJ, A.S. Bopanna and V. Ramasubramanian*, JJ has directed the University to declare Supplementary exam result & issue provisional degree to woman who fell short of attendance due to birth of her child & subsequent Teacher’s strike.
Setting aside the judgment of the Division Bench of the High Court, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ held that the seniority will not be decided on the basis of the date of promotion but on the basis of the date of acquiring the qualification while occupying the promoted posts.
“It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”
The 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has held that the suspension of sentence not enough to save one from disqualification from contesting elections; a person is disqualified to contest polls if conviction not stayed.
On the issue of rejection of the of the election petition by the Kerala High Court, the Court held that though the High Court was right in not taking up the election petition but the ground on which it rejected the petition i.e. incurable defects, was wrong.
“If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper.”
After Vikas Dubey, a history-sheeter and gangster-turned-politician, was killed in a police encounter on July 10, 2020, the Supreme Court gave a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan.
SC gives a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan | Read more…
Later, a 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ refused to scrap the Judicial Committee constituted to look into the killing of Vikas Dubey and said that the allegations of bias made against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.
The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has upheld the power of Universities to fix enhanced norms and standards for the grant of affiliation other than those prescribed by AICTE.
“No State run university can afford to have a laidback attitude today, when their own performance is being measured by international standards. Therefore, the power of the universities to prescribe enhanced norms and standards, cannot be doubted.”
Agreeing with Justice Mishra’s opinion that under section 109 IPC, the abettor is liable to the same punishment which may be inflicted on the principal offender if the act of the latter is committed in consequence of the abetment., the 3-judge bench of R.F. Nariman, K.M. Joseph* and V. Ramasubramanian, JJ upheld the conviction of the accused .
The Court opined that “Abduction followed by murder in appropriate cases can enable court to presume that abductor is the murderer. Principle in this regard is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim.” and held that the said principle would also apply to those persons who illegally confine the person who stands abducted even if there is no evidence that they have themselves carried out the abduction.
In a case seeking to transfer of three criminal cases, all pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi, V. Ramasubramanian*, J., held that the transfer of criminal cases cannot be ordered under section 406 of the Code of Criminal Procedure, 1973 on the ground of lack of territorial jurisdiction even before evidence is marshalled.
Rejecting the plea of Skoda Auto Volkswagen India (P) Ltd. to quash an FIR against it alleging the use of “cheat devices” which manipulate emission figures in Audi cars sold by them, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ., reiterated that the Courts should not thwart any investigation unless no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.
Deciding the issue as to what are the circumstances under which a winding up proceeding pending on the file of a High court could be transferred to the NCLT and on whose instance such a transfer could be ordered, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ., held that not just the petitioning creditor but ‘any’ creditor aggrieved by any decision of the official liquidator can initiate transfer of winding up proceedings from a Company Court to NCLT.
♦Did you know? The computerization of the Madras high court and the Subordinate courts in Tamil Nadu gained momentum under his leadership. The selection of judges to the subordinate judiciary in Tamil Nadu was entrusted to him three times from the year 2012. 
In a case dealing with the issue as to whether such a use of appellant’s trademark by Google’s Ad program amounted to trademark infringement, Justice Ramasubramanian* denied an interim injunction against Google for its ‘Keywords Suggestion Tool’.
♦Did you know? The decision rendered by Justice Subramanian in Consim Info (P) Ltd. v. Google India (P) Ltd. was hailed as the first decision in India on the question of infringement of trademark by an internet search engine through its adword policy. This decision was hailed by IPR experts as an encyclopedia on the legal issues involved.
“…all appointments made otherwise than in accordance with the Recruitment and Promotion Rules, strike at the very root of equality guaranteed under Articles 14 & 16 of the Constitution.”
In a civil writ petition were the petitioners engaged on a contractual basis as Trainer in various Industrial training institute challenged the cut-off date fixed under notification of the Department of Technical Education by the Government, the Division Bench of V. Ramasubramanian*, C.J. and Anoop Chitkara, J., held that there was no arbitrariness on the part of the Government in choosing the cut-off date i.e. 31.07.2015 as there was a scientific reason for the same.
“…the appointments on contract basis may not strictly follow the rule of reservation, which is the bedrock of Articles 14 & 16 of the Constitution. Therefore, this Court cannot be a party to the conversion of an ‘One time Measure’ issued by the Government, that too, at the instance of this Court, in to a permanent measure.”
In a case dealing with the issue a to whether a counter-claim can be rejected in terms of Order VII, Rule 11 of Civil Procedure Code, 1908, Justice Ramasubramanian* has held that while dealing with an application for rejection of counter-claim the court must take precaution and examine whether rejection would have the effect of striking off the defence
In a writ petition dealing with the constitutionality of Section 94A(1) of the Income Tax Act, 1961, the Division bench comprising of V. Ramasubramanian* and T. Mathivanan, JJ., upheld the constitutionality of Section 94-A(1) of the Income Tax Act stating that in the present times when scams like Panama Leaks are being revealed, the provisions related to tax avoidance are the need of the hour.
The Court held that the provisions of the Vienna Convention on the Law of Treaties and other such rules of International Law did not influence the legislative powers of Parliament.
B. Dilipkumar v. Secretary to the Govt., 2016 SCC OnLine Mad 2122
Raising concerns over the rising cases of honour killing, V. Ramasubramanian*, J., issued directions to the Tamil Nadu Government to tackle the growing menace of honour killings in the State.
State v. Rasu, 2016 SCC OnLine Mad 1807
Dismissing and disapproving the order laid down by the Single Judge Bench wherein it was directed that the devotees should follow a ‘dress code’ while visiting temples, the Division Bench of V. Ramasubramanian and K. Ravichandrabaabu, JJ., has held that the directions issued by the Single Judge Bench prescribing the dress code for the devotees is beyond the scope of the lis that was before him and therefore cannot be approved.
“Courts are not expected to adjudicate any matter academically in the absence of any real lis between parties. Courts are not entitled to create a controversy and adjudicate upon the same.”
A. Santhos Yadav v. Bar Council of T.N.,2015 SCC OnLine Mad 3362
“…the burning of effigies has its roots in history, culture as well as the religion of several countries throughout the world.”
The Division Bench of V. Ramasubramanian* and K. Ravichandrabaabu JJ., held that section 285 of Indian Penal Code, 1860 does not criminalize burning of effigies in a political agitation.
The Court ordered the enrolment of an eligible person as an advocate as he can not be denied enrolment merely because he had a criminal case of burning effigy of a political leader pending against him.
Dismissing the writ petition seeking appointment to judicial services with 70% blindness, the Division Bench of V. Ramasubramanian* and T. Mathivanan, JJ., held that held that the Tamil Nadu Public Service Commission’s decision is lawful as it is in line with the State’s policy.
Also Read: Supreme Court | 40-50% disability limit for the post of Civil Judge is logical considering the nature of the job
“The action of any group or organisation demanding the removal of any dialogue or scene or sub-title or title from a film which is already certified for release by the Central Board of Film Certification, would tantamount to a blackmail.”
While allowing the petition and directing the respondent to provide protection to enable the petitioner to have their name exhibited as the Producer of the film “Kathi” in the prints as well as the publicity material of the film, V. Ramasubramanian* J., opined that once a film is certified for screening by the Central Board of Film Certification, no group, organisation or association can demand further censoring, on the ground that something in the film hurts the religious, communal, racial or linguistic sentiments of someone or the other.
Reffused to be oscillated by the emotional appeal of the Plaintiff-mother against the order of an American Court granting custody of her child to her antagonized husband, Justice V. Ramasubramanian* held that a person who had failed to avail opportunity of hearing provided in the proceedings of the foreign Court cannot contend violation of principles of natural justice and any attack to such foreign judgment under Section 13(d) of the Code of Civil Procedure is not sustainable.
The Court opined that the US court had jurisdiction even though the Plaintiff never personally appeared but appearing through counsel was sufficient to extend personal jurisdiction over the plaintiff for the defendant’s counterclaims.
Emphasized the need for developing the concept of shared parenting, Justice V. Ramasubramanian* held that if both parties are not disqualified from having the custody of the child, then it is their duty, under normal circumstances, to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment.
The Court casted duty on the Courts to draw up a parenting schedule keeping in mind the interest and welfare of the child, if the parents themselves are not matured enough to reach an understanding and draw up a parenting schedule.
Discussing the Court’s mindset and need for change towards its duty towards the interest and welfare of the child, Justice Ramasubramanian held that
“It is quite unfortunate that the Courts still dabble with the age old concepts of custody and visitation rights. These terms emanate from a rights regime rather than a responsibilities regime. Today the emphasis has shifted from the regime where we were concerned with the rights of the parents over the child, to a regime where we should be concerned about the responsibilities of the parents towards the child.”
Justice V. Ramasubramanian* held that where a right over an artistic/musical/literary work is claimed by an entity, apart from the author, such entity is under a very heavy burden to show that the work was commissioned by him, was created in the course of employment by the author and that there was no agreement to the contrary.
Rajshree Sugars & Chemicals Ltd. v. AXIS Bank, 2008 SCC OnLine Mad 746
“Derivatives are time bombs and financial weapons of mass destruction, which can push companies on to a spiral that can lead to a corporate melt down”.
– Warren Buffett
Ruling in favour of AXIS Bank, Justice V. Ramasubramanian* held that derivative contract is not a wager, because the purpose it serves is akin to insurance by hedging the plaintiff’s risk, therefore it is not illegal.
“Every business venture provides a roller-coaster ride at some point of time or the other and the validity of contracts cannot be judged on the basis of the success or failure of the venture.”
“…on the one hand, advertisements being free commercial speech, enjoy a degree of protection. On the other hand, the right of the consumers to know and to receive information is also protected. Therefore, both rights have to be matched and balanced.”
Recognising the rights of the consumers to be protected against misleading claims made by manufacturers, V. Ramasubramanian*, J., held that the question of the legality of puffing needed to be decided by balancing the right to freedom under Article 19 along with reasonable restrictions on that right in the form of consumer laws.
“…the recognition of this right (to puff) of the producers, would be to de-recognise the rights of the consumers guaranteed under the Consumer Protection Act, 1986.”
†Editorial Assistant, EBC Publishing Pvt. Ltd.
* Judge who has penned the judgment.
** Judge who has penned the concurring judgment.
Madhya Pradesh High Court: Subodh Abhyankar, J., dismissed the fourth bail application which was filed by the petitioner under Section 439 of Criminal Procedure Code, 1973.
The applicant was implicated for offence punishable under Sections 364-A and 120-B read with Section 34 of the Penal Code, 1860. He was arrested in connection with the aforesaid offence whereby a boy aged seven years was kidnapped for ransom and has been in jail since 14-02-2019.
Senior Counsel for the applicant, Mr P.K. Saxena had vehemently argued before this Court that the victim himself had not supported the case of the prosecution and had clearly deposed in his cross-examination that he had identified the accused persons as he was directed by the Police uncle and earlier also, he had deposed as per the dictates of the Police uncle, as he was afraid of Police and even the independent witness had not supported the case of the prosecution.
The Court found that as the examination-in-chief of victim was concerned, he had clearly identified the accused persons, as the persons who had abducted him. However, after his examination-in-chief on 04-10-2019, his cross examination was conducted after more than two months i.e. on 18-12-2019 and that time, he had not supported the case of the prosecution, denying his earlier statement on the ground that he was afraid of Police personnel and they had asked him to depose in a particular manner supporting the case of the prosecution.
After careful examination of the material available on record the Court was of the opinion that it was not inclined to allow the bail application. The Court further held that the victim had affirmed his kidnapping by the accused persons by identifying them in his examination-in-chief, thus, it is for the trial Court to examine the aforesaid aspect of the matter while passing the final judgment; as this Court cannot venture into appreciating the evidence at this stage.
The Court further found that on 04-10-2019 the examination could not be completed due to end of court hours and the case was fixed on 13-11-2019 i.e. after more than 39 days and thereafter on 13-11-2019 and 28-11-2019, the child witness remained absent and finally on 18-12-2019 he was cross-examined and took a somersault from his earlier story by denying everything. It was apparent that in the meantime, he was won over by the accused persons. The Court was at pains to see the casual manner in which the next date was fixed in this case.
The Court referred and explained sub-section (1) of Section 309 of CrPC and opined that judge ought to have seen the sensitivity of the matter and should not have given such long date for no apparent reasons for the purposes of cross-examination which has led to the material witness turning hostile, seriously jeopardizing and undermining the efforts made by the police officers to bring home the charges against the accused persons, and to say the least, of the cost involve in the rescue operation which is always borne by the State.
The Court directed to all the judges of the trial court, to ensure the compliance of Section 309 of Cr.P.C. and specially in sensitive cases like murder, abduction and rape, it should be observed religiously, without fail and cases should not be adjourned on the drop of a hat.[Hirdesh Sahu v. State of M.P., 2021 SCC OnLine MP 1210, decided on 24-06-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
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.[]
♦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.[]
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 among the longest tenures of a High Court Chief Justice for the Supreme Court judge.[]
Justice K.M. Joseph is due to retire on 16-06-2023.
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?[]
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.
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.
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.
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…
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.
♦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. It was only after the Collegium reiterated his name a second time that he got elevated to the Supreme Court.[]
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.[]
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.
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.
Iffco Tokio General Insurance Co. Ltd. v. Pearl Beverages, 2021 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.
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:
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.
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.
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.
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.
“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.
*Editorial Assistant, EBC Publishing Pvt. Ltd.
Justice Arun Kumar Mishra, former Judge of the Supreme Court of India, has joined as the new Chairperson of the National Human Rights Commission, NHRC, India.
Justice Arun Mishra the 8th Chairperson of the NHRC, India.
He was born on 3rd September 1955. After completing B.Sc. M.A. L.L.B. joined the Bar in 1978 and practised in constitutional, civil, industrial, service and criminal matters.
He was elected as the youngest Chairman of the Bar Council of India in 1998 and particularly focused on the improvement of legal education. During his Chairmanship, the Bar Council of India decided to close the evening Law Colleges and also decided that 5-year Law Course should be started instead of 3 years Course in all the colleges. More than two hundred sub-standard law colleges were closed by the BCI. Also, amount of medical aid to lawyers was enhanced.
He was instrumental in the drafting and implementation of Foreign Law Degree Recognition Rules of 1997 under Advocates Act, 1961; Bar Council of India Employees Service Rules,1996 and Rules pertaining to Foreign Lawyers Conditions of Practice in India.
He was appointed Judge of the High Court of Madhya Pradesh on 25th October 1999 and appointed as the Chief Justice of Rajasthan High Court on 26th November 2010 and held the office till his appointment as the Chief Justice of the High Court at Calcutta on 14th December 2012.
Justice Mishra was elevated as a Judge of the Supreme Court of India on 7th July 2014 and held the position till his superannuation on 2nd September 2020. During his tenure as a Supreme Court Judge, he delivered 236 judgements. Out of this 199 were in two Judges Bench,32 in three Judges Bench and 5 in five Judges Bench.
National Human Rights Commission
[Press Release dt. 02-06-2021]
Appointment of Permanent Judge
President appoints Justice Alok Kumar Verma, Additional Judge of Uttaranchal High Court to be Judge of Uttaranchal High Court from the date he assumes charge of his office.
Justice Alok Kumar Verma — Born on 16-08-1964 in District Varanasi, Uttar Pradesh. Graduated from D.A.V. (P.G.) Degree College, Varanasi, Uttar Pradesh. He Did his LL.B. from Harish Chandra Postgraduate College in the year 1985 and joined Judicial Service of 1982 batch in Uttar Pradesh in the year 1987 and posted at Jhansi as Munsif [Civil Judge (Junior Division)].
He remained posted in various Districts in State of Uttar Pradesh. Opted for Judicial Service in the State of Uttaranchal (now Uttarakhand) after creation of State on 09-11-2000.
Remained posted as District Judge at Tehri Garhwal, Chamoli, Udham Singh Nagar and Dehradun. Also posted as Principal Secretary, Law-cum-L.R. to the Government of Uttarakhand.
Appointed as Additional Judge of High Court of Uttarakhand in pursuance of Notification No. K.13032/01/2019-US-I dated 22nd May, 2019 issued by the Department of Justice, Ministry of Law & Justice, Government of India and took oath of his office on 27th May, 2019 in the Forenoon.
Ministry of Law and Justice
[Notification dt. 24-05-2021]
“There is no rule that in every criminal case, the testimony of an injured eye-witness needs corroboration from the so-called independent witnesses. When the statement of injured eye-witness is found trustworthy and reliable, the conviction on that basis could always be recorded, of course, having regard to all the facts and surrounding factors.”
– Justice Dinesh Maheshwari
Manjit Singh v. State of Punjab, (2019) 8 SCC 529
Justice Dinesh Maheshwari was born on 15th May, 1958 in Udaipur (Rajasthan). He had completed his BSc (Hons.) in physics from Maharaja’s College, Rajasthan University, Jaipur and LL.B. from Jodhpur University. He enrolled as an Advocate with Bar Council of Rajasthan in March, 1981.
♦Did you know? Justice Dinesh Maheshwari’s father, Ramesh Chandra Maheshwari is a prominent advocate in Jodhpur.
Justice Dinesh Maheshwari practised on original and appellate sides before Rajasthan High Court and its subordinate Courts. He mainly dealt with civil and constitutional matters.
Justice Maheshwari served as counsel for Revenue and Excise Departments of Government of Rajasthan as also several local bodies and corporations. He had also been co-opted member on various disciplinary committees of the Bar Council of Rajasthan.
♦Did you know? Justice Maheshwari hails from lawyers’ lineage and is a first generation judge.
Justice Dinesh Maheshwari took oath as Judge of Rajasthan High Court on 2nd September, 2004. He also served as Chairman of Rajasthan State Judicial Academy and as Administrative Judge of Rajasthan High Court.
Justice Maheshwari was then transferred to Allahabad High Court and took oath on 19th July, 2014. He was appointed as Chief Justice of the High Court of Meghalaya on the 24th February 2016 and then, as Chief Justice of High Court of Karnataka on 12th February 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.
Justice Maheshwari was elevated as a Judge of the Supreme Court of India on 18th January, 2019.
♦Did you know?While Justice Maheshwari was at serial number 21 of all-India seniority list of judges, Justice Khanna was at 33.
While setting aside the impugned order of High Court of judicature at Madhya Pradesh for upholding the taking over of possession and eviction under MP Land Revenue Code, 1959, a 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., held that when there was no surplus land there could be no question of any proceedings for take over of the surplus land under the said Act.
“Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.”
The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has directed the School Managements of Rajasthan private schools to Give 15% deduction in Annual school fees and ordered that no students are to be debarred for non – payment of fees.
“The school Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”.”
A 3-judge bench comprising of A. M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ, by a 2:1 verdict, held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project and given a go ahead to the Central Vista Project.
“The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust.”
The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., while deciding the application hearing an application by the IRP Anuj Jain who was arrest n connection with an accident on the Expressway for not taking safety measures suggested by the IIT in its safety audit conducted in 2018 to reduce road accidents, said that it was “appalled to see” extreme step taken by Uttar Pradesh Police in the case.
The Court directed the release of the applicant and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.
The Court also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against the applicant.
In a petition related to reservation and filling up of backlog vacancies, the 3-judge bench of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., explaining the applicability of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and held that the reserved category students scoring on their own merit to be adjusted under general category.
The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy*, JJ held malicious allegation against spouse costing him his job and reputation is not an attempt to preserve the relationship but a definite case of mental cruelty and the husband was entitled to dissolution of his marriage.
“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”
A 3-judge bench comprising of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ., refused to interfere with the termination of Chanda Kochhar as the Managing Director and CEO of ICICI Bank.
“The award of compensation cannot go restrictive when the victim is coming from a poor and rural background.”
While enhancing compensation in a case of medical negligence, a Division bench comprising of Abhay Manohar Sapre and Dinesh Maheshwari*, JJ., held that award of compensation cannot go restrictive when the victim is from poor and rural background and awarded Rs. 10 Lakh compensation to ‘send message’ to medical practitioners.
“Such granting of reasonability higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity.”
While dealing with the issue of proving of wills and when a will may be considered to be invalid and executed under suspicious circumstances, a Division bench comprising of Abhay Manohar Sapre and Dinesh Maheshwari*, JJ., held that,
“thick clouds of suspicious circumstances are hovering over the Will in question which have not been cleared; rather every suspicious circumstance is confounded by another and the curious case of the alleged third page of the Will effectively and completely demolishes the case of the appellant.”
“The right to be considered for promotion is a fundamental right of equality of opportunity in the matter of employment.”
While dismissing a petition by Additional District and Sessions Judge Sujata Kohli challenging the constitutional validity of certain rules and resolutions of Delhi high Court on criteria for appointment of a judicial officer to the post of District Judge and Sessions Judge, a Division bench comprising A M Khanwilkar and Dinesh Maheshwari*, JJ., held that grading of an individual officer remains a matter between the officer and the establishment and it cannot be said that the high court has caused any prejudice to the appellant in the matter of ACR gradings.
“Having regard to the circumstances of this case, we are impelled to observe that while raising grievances with regard to the impact and effect of ACR gradings, the appellant appears to have missed out the fundamental factor that for the promotions in question, an individual’s minimum merit, by itself, was not going to be decisive, but the relevant factor was going to be comparative merit of the persons in the zone of consideration.”
“It is the fundamental principle of an equitable examination that “the one who seeks equity must do equity”.
While deciding the issue, whether NSE can realise withheld securities prior to expulsion or declaration of defaulter, the bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., the Court held that vesting of withheld securities of a defaulting member does not take place in favour of the NSE/NSCCL unless a formal expulsion order is passed and without such legal vesting, the Exchange only sits upon the withheld assets as a custodian.
A 3-judge bench of A.M. Khanwilkar*, Hemant Gupta, Dinesh Maheshwari, JJ., deciding on the validity of clause (f) to Section 43-B Income Tax Act, 1961, held,
“To hold a provision as violative of the Constitution on account of failure of the legislature to state the Objects and Reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison d’être behind this self-imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each other’s wisdom in the exercise of their duties. In other words, the time-tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted law.”
“Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed”
A Division bench of Sanjay Kishan Kaul* and Dinesh Maheshwari, JJ., dismissing the a Special Leave Petition filed by the State of Madhya Pradesh with a delay of 663 days, held
“We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value.”
A Division bench comprising of AM Khanwilkar* and Dinesh Maheshwari, JJ., while deciding when can a subsequent legislation be applied retrospectively, held that for an 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.
“It is a settled proposition of law that all laws are deemed to apply prospectively unless either expressly specified to apply retrospectively or intended to have been done so by the legislature. The latter would be a case of necessary implication and it cannot be inferred lightly.”
While deciding a contempt petititon, a Division Bbnch comprising constiting of A.M. Khanwilkar* and Dinesh Maheshwari, JJ., held that to establish civil contempt, disobedience of order should be wilful, deliberate & with full knowledge of consequences
The Division bench consisting of AM Khanwilkar and Dinesh Maheshwari*, JJ., held that the lending banks of Jaiprakash Associates Limited (JAL) were not the financial creditors and that the transactions in question were to defraud the lenders of the corporate debtor Jaypee Infratech Limited (JIL).
“the transactions in question are hit by Section 43 of the Code and the Adjudicating Authority, having rightly held so, had been justified in issuing necessary directions in terms of Section 44 of the Code.”
The Court directed the return of mortgaged land to Jaypee Infratech Limited
“A non-hostile working environment is the basic limb of dignified employment.”
While directing the Centre to pay Rs. 1 Lakh compensation for improper handling of sexual harassment allegation by former RAW agent Nisha Priya Bhatia, the bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., upheld the compulsory retirement for Nisha Priya Bhatia on the ground of “exposure” having regard to the nature of work of the Organisation of which confidentiality and secrecy are inalienable elements.
“…the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace.”
Gopalkrishnan v. State of Kerala, 2019 SCC OnLine SC 1532
The Division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., held that the contents of a memory card or a pen drive in relation to a crime amount to a ‘document’ and not a ‘material object’.
The Court also opined that the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973 and if the electronic evidence is regard to the cases involving issues such as of privacy of the complainant/witness or his/her identity, then the trial court, keeping in mind the sensitivity of the contents, could deny a copy but may allow the inspection to the accused and his/her lawyer or expert for presenting effective defence during the trial.
“…the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial.”
♦Did you know?When Justice Maheshwari was judge of the Rajasthan High Court, he re-initiated an inquiry against P. Krishna Bhat, a district judge, at the Centre’s behest. Justice Bhat’s promotion was stalled in light of allegations of “atrocities and abuse of power” made by a female judicial officer. Though Justice Bhat was cleared of all charges twice, Justice Maheshwari initiated a third inquiry — purportedly on instructions issued in a letter written directly by the Law Ministry.
While deciding whether the fashion show organised by the appellant, falls within the expression ‘entertainment’ and there had been ‘payment for admission’ so as to attract the relevant charging provisions of the Act, 1958, the Division bench headed by Chief Justice Dinesh Maheshwari held that ‘fashion show’ falls within the expression ‘entertainment’ and hence liable to attract state tax.
“Public Interest Litigation cannot be used as a tool to wreck vengeance”
Dismissing the PIL by the petitioner who had filed several criminal charges against her husband, the Division bench of Dinesh Maheshwari, CJ. and S. Sujatha, J., held that the scope of public interest litigation cannot be widened to serve private interest in the pending litigation in order to being reforms in the justice delivery system.
“The fundamental object of public interest litigation is to enforce fundamental rights and genuine infraction of statutory provisions but not to set right the private dispute or to bring the parties to terms.”
While deciding the issue whether the post of deputy chief minister is unconstitutional, a Division bench of Dinesh Maheshwari*, C.J. and Krishna S. Dixit, J., held that the post of deputy chief minister is not unconstitutional and a mere description of any minister in the council of ministers as a deputy chief minister does not confer any power of chief minister to such person.
“…mere description of any Minister in the Council of Ministers as Deputy Chief Minister does not confer the person concerned with any powers of the Chief Minister and does not result in any unconstitutionality.”
The Court also observed that there was no justification for filing the writ petition as a PIL and the petition filed by the petitioner is an example of “entirely frivolous, meaningless, unnecessary and unwarranted PIL petition in this Court and that too, by none other but a person who is engaged in teaching Business Law and is not oblivious of the legal process.”
“Any decision by any Ministry cannot override the plain provisions of law nor any correspondence or any communication could do so.”
The Division Bench of Dinesh Maheshwari*, C.J., and Ved Prakash Vaish, J., held that all Tibetans born in India after 26 January 1950 and before 1 July 1987, as per the Citizenship Act, 1955 are to be considered as Indians.
The Court opined that the respondents were unjustified in denying the rights to the petitioners as citizens of India and such rights flow directly and unfailingly by the operation of the plain provisions of law i.e. by operation of Section 3 of the Act of 1955.
A Division bench comprising of Dinesh Maheshwari*, CJ. and S. Sujatha, J., held that a decision to hold bye-elections in a vacant constituency on account of it being unrepresented for more than a year cannot be held invalid.
“Looking to the purport and purpose of Clause (a) of proviso to Section 151A of the Act of 1951, it is but clear that the period of one year as referred in Clause (a) is not referring to the term of the newly elected member after occurrence of vacancy, but the same refers to the remaining term from the date of occurrence of vacancy and that ought not be less than one year.”
Dinesh Maheshwari, J. while hearing a civil writ petition for appointment of arbitrator opined that termination of agreement does not automatically terminate the arbitration clause contained in such agreement.
“…where the parties stand at conflict and disputes do exist and looking to the terms of the agreement, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide the disputes between the parties, including their claims, counter claims and objections.”
Dismissing the writ petition filed by industrialist Vijay Mallya, a Division bench of Dinesh Maheshwari and Krishna N. Dixit, JJ., held that DRAT’s requirement of pre-deposit for maintaining the appeal was legitimate.
“This requirement cannot be construed as a pre-condition for restoring the appeal but has to be understood as the requirement of Section 21 of the Act for maintaining the appeal.”
The Court while explaining the nature and effect of amendment to Section 21 of Recovery of Debts due to Banks and Financial Institutions Act, 1993 observed that Section 21 of the Act of 1993 does not directly deals with the right of appeal but deals with the conditions, subject to which the said right becomes exercisable.
“the right of appeal is a matter of substantive law; this right may be absolute or conditional, as may be provided by law that creates the said right; it is also well settled that the right of appeal although accrues to a party when the litigation originally commences, the same becomes exercisable after an adverse order is made against him.”
† Editorial Assistant, EBC Publishing Pvt. Ltd.
* Judge who has penned the judgment.
** Judge who has penned the dissenting judgment.
“Freedom to express and speak is the most important condition for political democracy. Law and policies are not democratic unless they have been made and subjected to democratic process including questioning and criticism.”
– Justice Sanjiv Khanna
Amish Devgan v. Union of India, (2021) 1 SCC 1
Justice Sanjiv Khanna was born on 14th May 1960. He completed his schooling from Delhi’s prestigious Modern School, Barakhamba Road. He graduated from University of Delhi in 1980 and later studied Law from the Campus Law Centre, University of Delhi.
♦Did You Know? Justice Sanjiv Khanna is the nephew of a former Judge of the Supreme Court of India, Justice Hans Raj Khanna, who propounded the Basic Structure Doctrine in 1973 and famously delivered the lone dissenting judgement in the ADM Jabalpur v. Shiv Kant Shukla case, popularly known as the Habeas Corpus case, in 1976. Justice H. R. Khanna was superseded to the office of the Chief Justice of India by M. H. Beg.
Justice Sanjiv Khanna enrolled as an Advocate with the Bar Council of Delhi in 1983. He began his practice in the District Courts at Tis Hazari in Delhi and soon shifted his practiced to Delhi High Court.
His area of practice was wide and varied from writ petitions in public law matters, direct tax appeals, income tax prosecutions, arbitration cases, commercial suits, environment and pollution laws matters, besides medical negligence cases before consumer forums and company law cases before the Company Law Board.
He had represented the Government of Delhi as an additional Public Prosecutor in various criminal cases. He was a senior standing counsel for the Income Tax Department for about seven years. He was appointed as a standing counsel (Civil) for the Government of Delhi in Delhi High Court in 2004.
♦Did You Know? Justice Sanjiv Khanna never headed any High Court as Chief Justice and was a judge of the Delhi High Court prior to his elevation to SC.
On 24th June, 2005 he was elevated as an additional Judge of the Delhi High Court and became a permanent Judge of the Delhi High Court on 20th February, 2006.
♦Did You Know? Justice Khanna was directly elevated from his parent High Court – the Delhi High Court, which is a rare occurrence. Only six judges have been elevated directly from their parent high court since 1997 – Justices S Abdul Nazeer, Ranjana Prakash Desai, Lokeshwar Singh Panta, G P Mathur, Ruma Pal and S S Quadri.
Justice Khanna was elevated as a Judge of the Supreme Court of India on 18th January, 2019.
♦Did You Know? Going by seniority, Justice Sanjiv Khanna, 61, is in line to become Chief Justice of India (CJI) in November 2024 for a term of seven months.
♦Did You Know? It was a rare coincidence for Justice Sanjiv Khanna to begin his first day as a judge in Supreme Court sitting in the same courtroom from which his uncle, Late Justice H. R. Khanna, last retired.
“Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21 as if one claims to right to speech, the others have the right to listen or decline to listen.”
A Division bench comprising of AM Khanwilkar and Sanjiv Khanna,* JJ has 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.
The Court opined that thetrue test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.
“…the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused.”
The Court also made an attempt to define “hate speech” and explain what will invite penal action.
“Dissent and criticism of the elected government’s policy, when puissant, deceptive or even false would be ethically wrong, but would not invite penal action.”
A 3-judge bench comprising of A. M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ, by a 2:1 verdict, held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project and given a go ahead to the Central Vista Project.
“The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust.”
Justice Sanjiv Khanna dissented with the opinion expressed by A.M. Khanwilkar, J. on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee.
According to Justice Khanna the core issue in the present case is whether or not the authorities have performed their duty to consult the public, followed the prescribed procedure and the authority competent acted to modify or amend in terms of the Development Act and the Development Rules.
Justice Khanna opined that “…mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure.”
A 3-judge bench of Dr. DY Chandrachud*, MR Shah and Sanjiv Khanna, JJ has directed Haryana government to deposit Rs. 1,925 crore within three months into an escrow account while hearing a dispute between the state’s urban development authority, HSVP, and infrastructure company IL&FS on the Metro corridor in Gurugram.
♦Did You Know? Justice Sanjiv Khanna recused himself from hearing Sajjan Kumar’s appeal in 1984 anti-Sikh riots case and he is the one who had dismissed Sajjan Kumar’s bail in the Delhi High Court in 2015.
“The principle of secrecy of ballots is an important postulate of constitutional democracy whose aim is the achievement of this goal.”
A 3-judge bench of N V Ramana, Sanjiv Khanna* and Krishna Murari, JJ held that the applicable statutory rules providing for voting on no-confidence motion by secret ballot have binding effect. Hence, re-voting or fresh voting, directed on the no-confidence vote in question, in the facts and circumstances of the case, as the same had not been done by secret ballot. Such re-voting, held, must be by way of secret ballot in accordance with the 1966 Rules.
The Court relied on the judgement in the case of Kuldip Nayar v. Union of India, (2006) 7 SCC 1 and S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Supp SCC 53, observed that “The primary principle and test to be applied by the courts is purity of election, that is, free and fair election. Secrecy of voting is an adjunct to the principle of purity of election.”
“Secrecy is not an absolute principle enshrined in law, but a requirement to subserve the larger public interest of purity of election. Secrecy cannot stand aloof, in isolation or in confrontation to the foundation of free and fair elections.”
A 3-judge bench of comprising of N V Ramana***, Sanjiv Khanna* and Krishna Murari, JJ overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.
“Landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.”
In the case relating to winding up of six schemes of the Franklin Templeton Mutual Fund, a division bench of SA Nazeer and Sanjiv Khanna*, JJ has, rejecting the objections to poll results, upheld the validity of e-voting process for winding up of mutual fund schemes of Franklin Templeton, and opined that the disbursal of funds to unit holders will continue.
The Court held that for the purpose of clause (c) to Regulation 18(15) of the Mutual Fund Regulations, consent of the unit holders would mean consent by majority of the unit holders who have participated in the poll, and not consent of majority of all the unit holders of the scheme.
“In their blooming and blossoming, we all bloom and blossom.”
In the present case, a citizen suffering from a writer’s cramp knocked on the doors of the Apex Court as he was denied a scribe in the civil services examination and the 3-judge bench comprising of D Y Chandrachud*, Indira Banerjee and Sanjiv Khanna, JJ held that writer’s cramp can be considered as a disability under Entry IV of the Schedule to the Rights of Persons with Disabilities Act, 2016 (RPwD Act 2016).
“To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute.”
The Court opined that the heart of the present case lies in the principle of reasonable accommodation. The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled.
“The principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered.”
The Court directed the Centre to frame guidelines in three months to protect the rights of disabled students and enable them to write all competitive examinations with help of a scribe in tune with the Rights of Persons with Disabilities Act 2016.
While upholding conviction of the accused, the Division bench of SA Nazeer and Sanjiv Khanna*, JJ, set aside the sentence of life imprisonment and held that the 2000 Act would be applicable in a pending proceeding instituted under the 1986 Act in any court or authority, if the person had not completed eighteen years of age as on 1st April 2001, when the 2000 Act came into force.
The Court held that “the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.”
“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”
The 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana***, Dr. DY Chandrachud***, Deepak Gupta and Sanjiv Khanna,* JJ upholding the 2010 landmark judgment of the Delhi high court bringing the Chief Justice of India’s office under Right to Information, held that the office of the Chief Justice of India comes under the definition of ‘public authority’ in the Right to Information Act.
Justice Chandrachud is his separate but concurring opinion opined that “To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”
A 5-judge Constitution Bench of Ranjan Gogoi*, CJ and NV Ramana, Dr. DY Chandrachud***, Deepak Gupta*** and Sanjiv Khanna, JJ., assessing the constitutional validity of Section 184 of the Finance Act, 2017 and held that Section 184 is valid and does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court.
The Court struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, made under Section 184 of the Finance Act, 2017, for being contrary to the parent enactment and the principles envisaged in the Constitution i.e. being destructive of judicial independence.
The Court also dealt with the difference with money bill and finance bill and held that the Money bill can be introduced only in Lok Sabha and the role of the Rajya Sabha is merely consultative.
A 3-judge bench comprising of NV Ramana, Sanjiv Khanna* and Krishna Murar, JJ upheld the constitutional validity of the Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997.
The Court held that the separate classification of properties of religious institutions for rent legislation will pass the test under Article 14 of the Constitution of India.
“There can be no doubt that today’s judgment is in keeping with the legislature’s realisation that such crimes are on the rise and must be dealt with severely.”
Considering the serious nature of the crime involving rape and murder of 2 children, a 3-judge bench comprising of RF Nariman,* Surya Kant and Sanjiv Khanna,** JJ., with 2:1 verdict upheld the death sentence confirmed by the High Court.
Justice Khanna, while dissenting only on the issue of upholding death sentence confirmed by the High Court, held that the present case does not fall under the category of ‘rarest of rare’ case but would fall within the special category of cases, where the appellant should be directed to suffer sentence for life.
Dismissing the review petition filed by Appellant to review it’s 2:1 verdict awarding death sentence, a 3-judge bench of RF Nariman, Surya Kant* and Sanjiv Khanna,* JJ., held that the dissent by one Judge is not a bar for upholding death penalty.
The Court held that in the present case the appellant misused societal trust and the crime was not a crime a passion but a well crafted crime. The Crime committed by the Appellant were grave and shock the conscience of this Court and society that we cannot commute the sentence and without any doubt it will fall under rarest of the rare category.
“It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.”
Agreeing with the Justice Surya Kant on the dismissal of review petition and upholding of the conviction of the accused, Justice Khanna held that there is no good ground and reasons to review his observations and findings in the minority judgment.
A 3-judge bench comprising Justices N.V. Ramana*, Sanjiv Khanna and Krishna Murari upheld the then Karnataka Assembly Speaker K R Ramesh Kumar’s decision disqualifying 17 MLAs, but struck down the period of disqualification.
The Court opined that the Speaker is not empowered to disqualify any member till the end of the term.
The Court also discussed about the growing trend of Speakers acting against constitutional mandate and observed that
“There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty or lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.”
A 3-judge bench consisting of RF Nariman*, Sanjiv Khanna and Surya Kant, JJ has held the Amendment Act to Insolvency and Bankruptcy Code, 2016 made pursuant to a report prepared by the Insolvency Law Committee dated 26th March, 2018 does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India.
“The law on the point should emanate from the Legislature and not from the Court”
A 3-judge bench of Ranjan Gogoi,* CJ and Deepak Gupta and Sanjiv Khanna, JJ, has held that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime.
♦Did You Know?A five-member collegium headed by Chief Justice of India Ranjan Gogoi recommended the elevation of Justice Maheshwari and Justice Khanna to the top court after reviewing its earlier deliberations held on December 12, 2018, in which Delhi High Court Chief Justice Rajendra Menon and Rajasthan High Court Chief Justice Pradeep Nandrajog were said to have been considered for elevation.
♦Did You Know? 32 judges were being superseded by the elevation of Justice Khanna.
The Division bench of Sanjiv Khanna* and Chander Shekhar, JJ while deciding the validity of disqualification of 20 AAP MLAs for holding offices of profit as ‘parliamentary secretaries’ in the Delhi government by President Ram Nath Kovind, set aside the disqualification on the ground of failing to comply with the principles of natural justice by the Election Commission as the MLAs were not given an oral hearing or an opportunity of being heard.
The Division Bench of Sanjiv Khanna and Prathiba M. Singh*, JJ., while upholdimg the validity of Section 4(b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, observed that
“…once a law is repealed and a new legislation has been put in its place, it is not open for anyone to contend that it should be continued to be governed by the old enactment, except where actions under the existing laws had concluded. The applicability of the repealed legislation is only to the extent as provided in the Savings clause and nothing more.”
A Division Bench comprising of Sanjiv Khanna* and Navin Chawla, JJ, ruled in favour of an Air Force officer on deputation to the BSF Air Wing, enforcing the rule laid down in Group Captain Joe Emmanuel Stephen v. Directorate General of BSF, 2013 SCC OnLine Del 2472, that there cannot be two different pay scales, one applicable to deputationists and the other to the officer of the parent cadre/department when both are performing identical and same duties.
A 5-judge bench of Dipak Misra*, CJ and Vikramajit Sen, A.K. Sikri, Sanjiv Khanna and Manmohan, JJ., while deciding a petition challenging the validity of an order dated 9th July, 2010 passed by the Ministry of Finance dismissing its revision application, dealt with a very important question i.e. whether the High Court of Delhi can issue a writ against a person or authority not located within its territories, simply because the quasi judicial tribunal which passed the impugned order is located within the territorial jurisdiction of the Delhi High Court.
While entertaining a writ petition, the Court held that an order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated but, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
“The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens.”
The division bench of Dipak Misra*, CJ and Sanjiv Khanna, J., while disposing of a petition that demanded implementation of the tariff order passed by the Delhi Electricity Regulatory Commission (DERC), directed the Commission to proceed afresh by following the due procedure and do the needful.
The court observed that, “The commission under the 2003 Act is required to deal with the aspect of tariff determination with intellectual integrity, transparent functionalism and normative objectivity and not act in a manner by which its functioning invite doubt with regard to its credibility.”
The Court reprimanded the Delhi government for “unjustifiably intruding and encroaching on the functions of the commission by interdicting”.
Sanjiv Khanna*, J., while deciding the writ petition challenging the disclosure on grounds of infringement of the right to privacy, held that the information was already existed in the public domain therefore no claims as to privacy could be made.
The court applied the ratio laid down in Raj Gopal v. State of Andhra Pradesh, (1994) 6 SCC 632, whereby the Court held that once a matter becomes an issue of public record, no privacy can be claimed for it.
While dealing with yet another case related to refusal of the Central Information Commission to divulge information under the Right to Information Act, 2005 and involving an interpretation of S. 8(1)(i), Sanjiv Khanna*, J., held that the purpose of the proviso is only to clarify that while deciding the question of larger public interest i.e., the question of balance between ‘public interest in form of right to privacy’ and ‘public interest in access to information’ is to be balanced.
“The proviso is a guiding factor and not a substantive provision which overrides Section 8(1)(j) of the RTI Act. It does not undo or rewrite Section 8(1)(j) of the RTI Act and does not itself create any new right.”
†Editorial Assistant, EBC Publishing Pvt. Ltd.
* Judge who has penned the judgment.
** Judge who has penned the dissenting opinion
*** Judge who has penned a concurring opinion.
“An irreducible core of right to life is “dignity”. Right to human dignity comes in different shades and colours. (…) The right to dignity of an accused does not dry out with the Judges’ ink, rather, it subsists well beyond the prison gates and operates until his last breath.”
-Justice MM Shantanagoudar
‘X’ v. State of Maharashtra, (2019) 7 SCC 1
Born on 5th May, 1958, Justice Shantanagoudar enrolled as an Advocate on 05.09.1980 and practiced mainly in Civil, Criminal and Constitutional matters.
He also served as Vice-Chairman of Karnataka State Bar Council from 1991 to 1993 and as Chairman of Karnataka State Bar Council during 1995 and 1996 and later served as State Public Prosecutor of Karnataka State from 1999 to 2002.
He was then appointed as Additional Judge of the Karnataka High Court on 12.05.2003 and as Permanent Judge on 24.09.2004. He was also the President of Bangalore Mediation Centre and Karnataka Judicial Academy.
He assumed charge as Acting Chief Justice of the Kerala High Court on 01.08.2016 and was then sworn in as the Chief Justice on 22.09.2016. Read more…
He was elevated as Judge of the Supreme Court of India on 17th February, 2017. Read more…
Justice Shantanagoudar, who left for heavenly abode on April 24, 2021, left behind a legacy of significant rulings.
The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i) CrPC.
The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.
In a case where United Bank of India inadvertently broke the Appellant’s locker, without any just or reasonable cause, even though he had already cleared his pending dues, the bench of MM Shantanagoudar* and Vineet Sarana, JJ Imposed costs of Rs. 5,00,000/ on the Bank to be paid to the Appellant as compensation. The said is to be deducted from the salary of the erring officers, if they are still in service and if they have already retired, the amount of costs should be paid by the Bank. Additionally, the Appellant shall be paid Rs. 1,00,000/- as litigation expense.
Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,
“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”
The bench of Justice Shantanagoudar and Justice R. Subhash Reddy held that the Trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him.
“Frivolous litigation should not become the order of the day in India. From misusing the Public Interest Litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta.“
Dealing with the question relating to the extent to which a victim’s counsel can participate in the prosecution of a case, the bench of MM Shantanagoudar and Deepak Gupta, JJ has held that the victim’s counsel is subject to the directions of the Public Prosecutor and that the victim’s counsel should ordinarily not be given the right to make oral arguments or examine and crossexamine witnesses.
The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ held
“it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broadspectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentallyill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”
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.
“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.”
The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:
“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”
The bench of NV Ramana and MM Shantanagoudar, JJ, on the issue relating to legality of the marriage of a Muslim man with an idolater or fireworshipper, said that such marriage “is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.”
In the case where the Court was deciding the issue relating to interpretation of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and section 31 of the Land Acquisition Act, 1894, the 3-judge bench of Arun Mishra, AK Goel and MM Shantanagoudar, JJ held that Non-deposit of compensation under Section 31 of LA Act, 1894 does not result in lapse of acquisition under 2013 Act.
A five-Judge Constitution Bench speaking through N.V. Ramana, J., while invalidating the ratio of Sun Export Corpn. v. Collector of Customs, (1997) 6 SCC 564, laid at rest the controversy regarding the interpretation of an ambiguous provision exempting tax. The Bench comprised of Ranjan Gogoi, N.V. Ramana, R. Banumathi, M.M. Shantanagoudar and S. Abdul Nazeer, JJ.