Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench of the Supreme Court, by a majority of 2:1, has declared that certain portions of Section 184 of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 are unconstitutional and inoperative. Section 184 consists of provisions relating to the qualifications, appointment, etc., of Chairperson and Members of tribunals. The majority was formed by L. Nageswara Rao, J. who delivered the leading opinion, and S. Ravindra Bhat, J. penning a separate concurring opinion. Whereas, Hemant Gupta, J. wrote a substantially dissenting opinion.

The Challenge

The Madras Bar Association filed the instant writ petition seeking a declaration that Section 12 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (“Ordinance”) and Section 184 of the Finance Act, 2017 as amended by the Ordinance are ultra vires Articles 14, 21 and 50 of the Constitution of India inasmuch as these are violative of the principles of separation of powers and independence of judiciary, apart from being contrary to the principles laid down by several earlier judgments[1] of the Supreme Court.

The dispute raised in the writ petition relates to:

(i) First proviso to Section 184(1) according to which a person below the age of 50 years shall not be eligible for appointment as Chairperson or Member; and also the second proviso, read with the third proviso, which stipulates that the allowances and benefits payable to Chairpersons and Members shall be the same as a Central Government officer holding a post carrying the same pay as that of the Chairpersons and Members.

(ii) Section 184(7) which stipulates that the Selection Committee shall recommend a panel of two names for appointment to the post of Chairperson or Member and the Central Government shall take a decision preferably within three months from the date of the recommendation of the Committee, notwithstanding any judgment, order or decree of any Court.

(iii) Section 184(11) which shall be deemed to have been inserted with effect from 26-5-2017, provides that the term of office of the Chairperson and Member of a tribunal shall be four years. The age of retirement of the Chairperson and Members is specified as 70 years and 67 years, respectively. As per the proviso, if the term of office or the age of retirement specified in the order of appointment issued by the Central Government for those who have been appointed between 26-5-2017 and 4-4-2021 is greater than that specified in Section 184(11), the term of office or the age of retirement shall be as set out in the order of appointment, subject to a maximum term of office of five years.

The Finance Act and the Ordinance

The Finance Act, 2017 was brought into force from 31-3-2017 to give effect to the financial proposals for the financial year 2017-18. Sections 183 to 189 thereof dealt with conditions of service of Chairperson and Members of Tribunals, Appellate Tribunals and other authorities.

The Tribunal Reforms (Rationalisation and Conditions of Service) Bill, 2021 was introduced in the Lok Sabha on 13-2-2021 but could not be taken up for consideration. According to the Statement of Objects and Reasons, the said Bill was proposed with a view to streamline tribunals and sought to abolish certain tribunals and other authorities, which “only add to another additional layer of litigation” and were not “beneficial for the public at large”. Thereafter, the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 was promulgated on 4-4-2021. Chapter XI thereof makes amendments to the Finance Act, 2017.

Discussion and Observations

  1. Separation of Power

Discussing this indispensable concept, the Court said that the doctrine of separation of powers, though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of the Indian Constitution. It forms part of basic structure of the Constitution. The Constitution has made demarcation, without drawing formal lines between the three organs ─ legislature, executive and judiciary, which is nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stating thus, the Court reaffirmed:

Violation of separation of powers would result in infringement of Article 14 of the Constitution. A legislation can be declared as unconstitutional if it is in violation of the principle of separation of powers.

  1. Independence of Judiciary

On this point, the Court recorded that independence of judiciary is a fighting faith of our Constitution. It is cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours and the judiciary which is to act as a bastion of the rights and freedom of people is given certain constitutional guarantees to safeguard independence of judiciary. An independent and efficient judicial system has been recognised as a part of basic structure of our Constitution.

After discussing Article 50 (which provides that the State shall take steps to separate the judiciary from the executive in the public services of the State) and Article 37 (which declares that the principles laid down in Part IV of the Constitution are fundamental in the governance of the country and it should be the duty of the State to apply the principles in making laws), the Court observed:

[Independence] is the lifeblood of the judiciary. … It is the freedom from interference and pressures which provides the judicial atmosphere where [a Judge] can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things ─ security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive).

  1. Judicial Decisions and Legislative Overruling

The controversy that arose for consideration of the Court in the instant writ petition relates to the legislative response to the judgment of the Court in Madras Bar Assn. v. Union of India, 2020 SCC OnLine SC 962 (“Madras Bar Assn. case“). In that case, the validity of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (“2020 Rules”) was challenged by the Madras Bar Association. The relevant portions of the decision in Madras Bar Assn. case along with the affect of the Ordinance are discussed below at relevant place.

(A) Judicial Review

Appreciating the scope of judicial review of ordinances, the Court noted that it is the same as that of a legislative act. Article 123 of the Constitution empowers the President to promulgate an ordinance during recess of the Parliament, which shall have the same force and effect as an act of the Parliament. The validity of an ordinance can be challenged on grounds available for judicial review of a legislative act.

The power to strike down primary legislation enacted by the Union of India or the State legislatures is on limited grounds. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment and a clear transgression of constitutional principles must be shown. The Court reiterated that:

[S]ans flagrant violation of the constitutional provisions, the law made by Parliament or a State legislature is not declared bad and legislative enactment can be struck down only on two grounds: (i) that the appropriate legislature does not have the competence to make the law, and (ii) that it takes away or abridges any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. [‘Manifest arbitrariness’ is also recognised] as a ground under Article 14 on the basis of which a legislative enactment can be judicially reviewed.

(B) Permissible Legislative Overruling

The Court culled out the principles in accordance with which legislative overruling could be permissible:

(i) The effect of the judgments of the Court can be nullified by a legislative act removing the basis of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution.

(ii) The test for determining the validity of validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed.

(iii) Nullification of mandamus by an enactment would be an impermissible legislative exercise. Even interim directions cannot be reversed by a legislative veto.

(iv) Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India.

Validity of the Ordinance and Amended Provisions

The grievance of the petitioners was mainly related to the violation of the first proviso and the second proviso, read with the third proviso, to Section 184(1), Sections 184(7) and 184(11) of the Finance Act, 2017 as amended by the Ordinance.

  1. Section 184(1)

(A) The first proviso of Section 184(1) provides minimum age for appointment as Chairperson or Member of a tribunal as 50 years.

One of the issues considered in Madras Bar Assn. case was the correctness of the conditions imposed in the 2020 Rules that an advocate is eligible for appointment as a Member only if he has 25 years of experience. It is relevant to state that advocates were ineligible for most of the tribunals. In Madras Bar Assn. case, the Court found the exclusion of advocates from being appointed as Members to be contrary to earlier judgments of the Court. In such view of the matter, a direction was given to amend the 2020 Rules to make advocates with at least 10 years of experience at the bar eligible for appointment as Members in tribunals.

Discussing that the direction given in the nature of mandamus in Madras Bar Assn. case is to the effect that advocates are eligible for appointment as Members, provided they have experience of 10 years, the Court in the instant petition observed:

The first proviso to Section 184 which prescribes a minimum age of 50 years is an attempt to circumvent the direction issued in Madras Bar Assn. case striking down the experience requirement of 25 years at the bar for advocates to be eligible. Introduction of the first proviso to Section 184(1) is a direct affront to the judgment of this Court in Madras Bar Assn. case.”

Underlining the importance of recruitment of Members from the bar at a young age to ensure a longer tenure, the Court was of the view that fixing a minimum age for recruitment of Members as 50 years would act as a deterrent for competent advocates to seek appointment. Practically, it would be difficult for an advocate appointed after attaining the age of 50 years to resume legal practice after completion of one term, in case he is not reappointed. Security of tenure and conditions of service are recognised as core components of independence of the judiciary. Independence of the judiciary can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate remuneration and security of tenure.

The Court found that first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgment Madras Bar Assn. case has been frustrated by an impermissible legislative override.

Resultantly, the first proviso to Section 184(1) was declared unconstitutional as it is violative of Article 14 of the Constitution.

It was directed that the selections conducted for appointment of Members, ITAT pursuant to the advertisement issued in 2018 should be finalised and appointments made by considering the candidates between 35 to 50 years as also eligible.

Ravindra Bhat, J., in his separate concurring opinion said that:

Prescribing 50 years as a minimum age limit for consideration of advocates has the devastating effect of entirely excluding successful young advocates, especially those who might be trained and competent in the particular subject (such as Indirect Taxation, Anti-Dumping, Income-Tax, International Taxation and Telecom Regulation). The exclusion of such eligible candidates in preference to those who are more than 50 years of age is inexplicable and therefore entirely arbitrary.

(B) The second proviso to Section 184(1) deals with the allowances and benefits payable to the Members which are to be the same as are admissible to a Central Government officer holding a post carrying the same pay.

In Madras Bar Assn. case, the Court considered Rule 15 of the 2020 Rules according to which, Chairpersons and Members of tribunals were entitled to House Rent Allowance at the same rate as admissible to officers with the Government of India holding Group ‘A’ post carrying the same pay. In that case, it was noted that an amount of Rs 75,000 per month which was paid as HRA was not sufficient to get a decent accommodation in Delhi for Chairpersons and Members of tribunals. Taking note of the serious problem of housing and the inadequate amount that was being paid as HRA to the Members, the Court in that case directed enhancement of HRA to Rs 1,25,000 per month to the Members and Rs 1,50,000 per month to Chairperson or Vice-Chairperson or President of tribunals. This direction was made effective from 1-1-2021.

Noting the submission of the Amicus Curiae that result of the instant amendment made by the Ordinance is that the Members of tribunals working in Delhi will get Rs 60,000 as HRA, the Court was of the view that the second proviso to Section 184(1), read with the third proviso, is an affront to the judgment in Madras Bar Assn. case. The direction issued in Madras Bar Assn. case for payment of HRA was to ensure that decent accommodation is provided to tribunal Members. Such direction was issued to uphold independence of the judiciary and it cannot be subject matter of legislative response. The Court held that a mandamus issued by the Supreme Court cannot be reversed by the legislature as it would amount to impermissible legislative override.

Therefore, the second proviso, read with the third proviso, to Section 184(1) was declared as unconstitutional.

The Court noted that after the judgment in the instant writ petition was reserved on 3-6-2021, the Ministry of Finance amended the 2020 Rules whereby the earlier Rule 15 was substituted[2]. The Explanatory Memorandum at the end of the notification states that the amendment to Rule 15 of the 2020 Rules on HRA, shall be given retrospective operation with effect from 1-1-2021, in order to give effect to the judgment in Madras Bar Assn. case. The Court was of the opinion that this amendment to Rule 15 is in conformity with the directions on the subject of HRA in Madras Bar Assn. case. In view thereof, no further direction is required to be given with respect to HRA.

  1. Section 184(7)

(A) Section 184(7) stipulates that a Search-cum-Selection Committee shall recommend a panel of two names for appointment to the post of Chairperson or Member and the Central Government shall take a decision preferably within three months from the date of the recommendation of the Committee, notwithstanding any judgment, order or decree of any Court.

Rule 4(2) of the 2020 Rules pertains to the procedure to be followed by the Selection Committee. According to the said Rule, the Selection Committee should recommend two or three names for appointment to each post. A direction was given in Madras Bar Assn. case to amend Rule 4(2) of the 2020 Rules to provide that the Selection Committee shall recommend one person for appointment in each post in place of a panel of two or three persons for appointment to each post.

The Court recorded that sufficient reasons were given in Madras Bar Assn. case to hold that executive influence should be avoided in matters of appointments to tribunals ─ therefore, the direction that only one person shall be recommended to each post. The decision of the Court in that regard is law laid down under Article 141 of the Constitution. The only way the legislature could nullify the said decision was by curing the defect in Rule 4(2). There is no such attempt made except to repeat the provision of Rule 4(2) of the 2020 Rules in the Ordinance amending the Finance Act, 2017.

Ergo, Section 184(7) was declared to be unsustainable in law as it is an attempt to override the law laid down by the Supreme Court.

(B) The second part of Section 184(7) provides that the Government shall take a decision regarding the recommendations made by the Selection Committee preferably within a period of three months. This was in response to the direction in Madras Bar Assn. case that the Government shall make appointments to tribunals within three months from the completion of the selection and recommendation by the Selection Committee.

Such direction, the Court noted, was necessitated in view of the lethargy shown by the Union of India in making appointments and filling up the posts of Chairpersons and Members of tribunals which have been long vacant. The direction given in Madras Bar Assn. case for expediting the process of appointment was in the larger interest of administration of justice and to uphold the rule of law.

The Court held, Section 184(7) as amended by the Ordinance permitting the Government to take a decision preferably within three months from the date of recommendation of the Selection Committee is invalid and unconstitutional, as this amended provision simply seeks to negate the directions of the Supreme Court.

  1. Section 184(11)

(A) The tenure of the Chairperson and Member of a tribunal is fixed at four years by Section 184(11), notwithstanding anything contained in any judgment, order or decree of any court. Sub-section (11) of Section 184 has been given retrospective effect from 26-5-2017.

Rule 9 of 2020 Rules had specified the term of appointment of the Chairperson or Member of the Tribunal as four years.  After perusing the law laid down by earlier judgments that a short stint is anti-merit, the Court in the Madras Bar Assn. case directed the modification of tenure in Rules 9(1) and 9(2) as five years in respect of Chairpersons and Members of tribunals.

The Court, in the instant petition, held that insertion of Section 184(11) prescribing a term of four years for the Chairpersons and Members of tribunals by giving retrospective effect to the provision from 26-5-2017 is clearly an attempt to override the declaration of law by the Supreme Court under Article 141 in the Madras Bar Assn. case.

Therefore, clauses (i) and (ii) of Section 184(11) were declared as void and unconstitutional.

(B) The proviso to Section 184(11) refers to appointments that were made to the posts of Chairperson or Members between 26-5-2017 and the notified date, i.e., 4-4-2021. The proviso lays down that the term of office of Chairperson and Members of tribunals who were appointed between 26-5-2017 and 4-4-2021 shall be five years even though the order of appointment issued by the Government had a higher term of office or age of retirement.

On this point, the Court referred to the interim directions given by the Supreme Court on 9-2-2018 in Kudrat Sandhu v. Union of India, 2018 SCC OnLine SC 2898 wherein it was held that all selections to the post of Chairperson/ Chairman, Judicial/ Administrative Members shall be for a period as provided in the Act and the Rules in respect of all tribunals. Reference was also made to certain subsequent orders passed in the same case of Kudrat Sandhu.

Coming back to the instant petition, the Court was of the opinion that though, there is nothing wrong with the proviso to Section 184(11) being given retrospective effect, the appointments made pursuant to the interim directions passed by the Supreme Court cannot be interfered with. The Court pointed out that even the interim orders passed by the Supreme Court cannot be overruled by a legislative act.

While making it clear that the appointments that are made to the CESTAT on the basis of interim orders passed by the Supreme Court shall be governed by the relevant statute and the rules framed thereunder, as they existed prior to the Finance Act, 2017, the Court upheld the retrospectivity given to the proviso to Section 184(11). Clarifying further, the Court stated that appointments after 4-4-2021 shall be governed by the Ordinance, as modified by the directions in the instant judgment.

Consequently, Section 12 of the Ordinance making amendments in the earlier Section 184 of the Finance Act, 2017, also stands invalidated.

The Dissent

Lastly, it may also be mentioned that the upshot of the dissenting opinion written by Hemant Gupta, J. (as summarised by S. Ravindra Bhat, J. in his opinion) was that as regards prescription of minimum age or with respect to conditions of service such as payment of house rent allowance, the Court ought to respect legislative wisdom; and that the directions issued in past judgments cannot bind Parliament, as they fell outside the judicial sphere.

The writ petition stood disposed of in terms of the majority judgment. [Madras Bar Assn. v. Union of India, 2021 SCC OnLine SC 463, decided on 14-7-2021]


[1] Union of India v. Madras Bar Assn., (2010) 11 SCC 1; Madras Bar Assn. v. Union of India, (2014) 10 SCC 1; Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1; and Madras Bar Assn. v. Union of India, 2020 SCC OnLine SC 962

[2] Vide Rule 6, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a postscript to its 188-pages long judgment in Ajit Mohan v. Delhi Legislative Assembly (wherein it was held that representatives of Facebook will have to appear before the Committee constituted by Delhi Legislative Assembly for looking into Facebook’s role in aggravating Delhi Riots which broke out last year), the 3-Judge Bench of Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy, JJ. stressed upon the need for timely disposal of cases. The way forward, in dealing with the likely post-COVID surge in number of cases pending adjudication, was also discussed.

The Court said that the purpose of the postscript was only to start a discussion among the legal fraternity by bringing to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to in course of oral arguments to be addressed over a limited time period and more crisp, clear and precise judgments so that the common man can understand what is the law being laid down.

The Court expressed that COVID times have been difficult. The judiciary and the bar are no exception. It was noted that this was a contributing factor in there being a period of four months between reserving the judgment and pronouncing the order in the Ajit Mohan case. But this was not the only reason. The “saga of hearing” lasted 26 hours ─ which the Court said is “a lot of judicial time”. Daily time period was recorded. Apart from pleadings, there were written synopses, additional written synopses, rejoinders and replies filed liberally by both parties. The convenience compilations themselves were very voluminous, in contradiction to their very purpose.

Concern of the Court was if this is how the proceedings will go on in the future, “it will be very difficult to deal with the post-COVID period, which is likely to see a surge in the number of cases pending adjudication”. The Court then discussed “the way forward”.

Clarity in Thought Process

The Court said it believes that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides “and then strictly adhered to”.

Restriction on Time Period for Oral Submissions

The Court said that much as the legal fraternity would not want, restriction of the time period for oral submissions is an aspect that must be brought into force.

Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time.

Looking into this aspect, the Court then referred to a few international best practices including Article 6 of the European Convention on Human Rights ─ which while recognising the right of fair trial and public hearing, qualifies it inter alia to be completed “within a reasonable time”. This is intrinsically linked to administering justice without delays.

The Court said that delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process.

Clear and Short Judgments

The Court was conscious of the “equal responsibility of this side of the bench”. “It is the need of the hour to write clear and short judgments which the litigant can understand”, the Court said. It was advised that:

The Wren & Martin principles of precis writing must be adopted.”  

But then, the Court was perplexed, as to how this is to be achieved if the submissions itself go on for hours on end with vast amounts of material being placed before the Court; with the expectation that each aspect would be dealt with in detail failing which review applications will be filed.

Use of Judicial Precedents

The Court noted that it is weighed down by judicial precedent. Often a reference is made to the judgment of the Privy Council or the earlier years of the Supreme Court which saw short and crisp judgments, but then the volume of precedents the Court faces today was not present then. In today’s technological age, all that is required is to instruct the junior counsel to take out all judgments on a particular point of view and submit it to the Court in a nice spiral binding. On every aspect, there may be multiple judgments.

The Court was of the opinion that if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition ─ and not multiple judgments. The other scenario is if the facts of the cited judgments are so apposite to the facts of the case that it could act as a guiding principle.

The contribution to the development of law can be nurtured by comprehensible precedent. There may be times when the complexity of matters gives rise to complex opinions. But the judgments are becoming more complex and verbose only on account of large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries.

Case Management

The Court recorded that case management has been discussed for long, but seldom is it followed in its true letter and spirit. This may possibly be because of the large volumes of cases, but then this is all the more reason for better management.

Referring to the US Supreme Court,  it was noted that there the norms and the traditions take care of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the written synopsis and the material sought to be relied upon.

The Court did not doubt that lawyers think on their feet but then, the Court said:

[G]iven the current milieu, there has to be clarity before the lawyers get on their feet keeping a little leeway in mind for something which may evolve during the arguments.

As of 1-5-2021, the Supreme Court of India had 67,898 pending matters. The Court expressed that the time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system.

Interim Proceedings

While concluding, the Court noted that another matter of concern is prolonged interim proceedings. In criminal matters, even bail matters are being argued for hours together and at multiple levels. The position is no different in civil proceedings where considerable time is spent at an interim stage when the objective should be only to safeguard the rights of the parties by a short order, and spend the time on the substantive proceedings instead which could bring an end to the lis rather than on the interim arrangement. In fact, interim orders in civil proceedings are of no precedential value. It was noted by the Court that this is the reason it is said that:

[W]e have become courts of interim proceedings where final proceedings conclude after ages ─ only for another round to start in civil proceedings of execution.

The Court ended by stating that by this post script it intended to start a discussion among the legal fraternity on the issues touched upon. [Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456, decided on 8-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


Case BriefsSupreme Court

Supreme Court: The Division Bench of Sanjay Kishan Kaul and Hemant Gupta, JJ., while addressing the matter, expressed that,

The public officers of the Executive are also performing their duties as the third limbs of the governance. The actions or decisions by the officers are not to benefit them, but as a custodian of public funds and in the interest of administration, some decisions are bound to be taken.

“summoning of the public officer is against the public interest as many important tasks entrusted to him gets delayed, creating extra burden on the officer or delaying the decisions awaiting his opinion.”

Factual Matrix

In the instant matter, the appeal challenged the orders of Allahabad High Court wherein the appellants were directed to calculate and pay 50% of the back wages to the respondent and to grant all the consequential benefits.

Petitioner who was posted at the State of Uttarakhand was posted as a Medical Officer and transferred to State of Uttar Pradesh as per the option given by the Medical officers. Though the petitioner was posted at Badaun, he did not join there and was well satisfied by giving a letter to Director of Medical Health Services.

Subsequently, in the year 2006, the petitioner claimed a writ of mandamus commanding the State to post the writ petitioner as a Medical Officer in any Hospital according to his qualification and experience in the specialized cadre. Single Judge allowed the same and concluded that the posting order or transfer order was never communicated or served upon the petitioner at any point of time.

In pursuance of the High Court order, a fresh posting order was issued and subsequently, another petition seeking direction for payment of back wages was filed.

Principal Secretary declined the grant of back wages for the reason that petitioner did not perform any government work for the period from 5-07-2003 till 9-12-2016 and the same cannot be treated as a compulsory waiting period under the provisions of Fundamental Rules 9(6)(b)(iii) of Financial Hand Book Volume-2 Part 2-4 and hence he was granted extra ordinary leave for the said period.

Initially, it was decided by the Single Judge Bench that State could not produce as to how and when the posting order was communicated to him. Court was aware of the fact that the petitioner was relieved by the Uttarakhand Government and a communication was addressed by the Joint Director with regard to the joining report of the petitioner.

In Court’s opinion, when the petitioner stood relieved from Uttarakhand, High Court could not have returned a finding that the State did not show as to how the transfer and posting order was conveyed to the petitioner.

High Court overlooked Supreme Court’s decision in State of Punjab v. Khemi Ram, AIR 1970 SC 214, wherein a question arose that whether suspension order was to be actually received by the employee to be affected. Supreme Court examined the question as to whether communicating the order means its actual receipt by the concerned government servant.

Analysis, Law and Decision

Supreme Court on perusal of the facts and circumstances of the case held that the petitioner was relieved by the Government of Uttarakhand in the year 2003, he filed the petition in 2006, meaning he was awaiting his posting orders for a period of 3 years.

Further, it was noted that he started his own private practice in the said period and intentionally delayed the decision on petition for almost 13 years.

Court expressed that the petitioner’s conduct suggested that he was not keen on joining as a Medical Officer after he was relieved by the Uttarakhand Government.

Feigned Ignorance

Uttarakhand Government’s Order relieved the petitioner on 5-7-2003 in pursuance of the order of the Government of Uttar Pradesh. Bench in view of the said position stated that it was a case of feigned ignorance.

Medical Officer: Idle for 13 long Years?

Petitioner was gainfully employed, as noted by the Single Bench. It was impossible for the Court to imagine that a Medical Officer would sit idle for 13 long years, hence the grant of 50% back wages would be giving benefit of one’s own wrong who intentionally abstained from duty for 13 long years and now wanting to take benefit of back wages as well.

Petitioner’s stand was not only unjustified but wholly condemnable. 

Bench remarked that, State should have taken steps to initiate disciplinary proceedings.

State was remiss in not taking action against the petitioner for absence from duty.

Another disturbing feature noted by the Court was that the Secretary, Medical Health was called in-person in the Court.

“…certain High Courts have developed a practice to call officers at the drop of a hat and to exert direct or indirect pressure.” 

Line of Separation

Bench expressed that, the line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers in a way of pressurizing them to pass an order as per the whims and fancies of the Court.

It is always open to the High Court to set aside the decision of the Executive which does not meet the test of judicial review but summoning of officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words.

In Supreme Court’s decision of Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, observed that

Judges must know their limits. They must have modesty and humility, and not behave like emperors. The legislature, the executive and the judiciary all have their own broad spheres of operation. It is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

Conclusion

Bench reiterated that public officers should not be called to Court unnecessarily. Dignity and majesty of the Court is not enhanced when an officer is called to Court. Respect to the court has to be commanded and not demanded and the same is not enhanced by calling public officers.

Power of Pen

Courts have the power of pen which is more effective than the presence of an officer in Court. Elaborating more on this aspect, Court suggested that if any particular issue arises for consideration before the Court and the Advocate representing the State is not able to answer the same, it is advised to write such doubt in the order and give time to the State or its officers to respond.

Therefore, in the present matter, the petitioner was posted at Badaun and was he was to report to the same place. He should have asked for a transfer after reporting, if permissible by the State and he should not have dictated the place of posting without even joining the place where he was first posted.

In view of the above discussion, while allowing the appeal, Supreme Court decided that the High Court orders were wholly unjustified, unwarranted, arbitrary and illegal. [State of U.P. v. Dr Manoj Kumar Sharma, 2021 SCC OnLine SC 460, decided on 9-07-2021]

Experts CornerSiddharth R Gupta

One of the great liabilities of history is that all too many people fail to remain awake through great periods of social change. Every society has its protectors of status quo and its fraternities of the indifferent who are notorious for sleeping through revolutions. Today, our very survival depends on our ability to stay awake, to adjust to new ideas, to remain vigilant and to face the challenge of change.”

Martin Luther King, Jr.[1]

 

The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.”

George Bernard Shaw[2]

 


In Part I of the Article, the preliminaries of the title were discussed threadbare. It was a conceptual discussion veering around “open courts”, “publicised justice” and their Indian context. Also discussed were the statutory provisions under the Indian laws mandating requirements of “open courts” and “publicised justice”. Some  innovative instances adopted by few of the Judges in the early 21st century for live streaming of their court proceedings were also quoted. Part I thus concluded for Part II to take the subject ahead to Swapnil Tripathi v. Supreme Court of India[3] judgment and its trail.

 

Read Part 1 HERE


 

“Swapnil Tripathi” Judgment and its Trail in 3 Years

A law student from National Law University, Jodhpur, Swapnil Tripathi, approached the Supreme Court with an inventive plea that the proceedings of Supreme Court of India, especially Constitutional Bench matters are far removed and inaccessible for bright and meritorious law students whose learning experience is bereft of any practical exposure. In his plea before the Supreme Court, he posed the difficulty that law students face, being pushed out in the corridors, when the courts are jam-packed with seniors arguing ticklish constitutional issues. Thus, there never arises any occasion for any law student to observe, watch and pick up from court proceedings. It was thus pleaded that the court proceedings of all the constitutional courts must be live streamed. Unexpectedly, the plea found favour unanimously with all members of the Bench, headed by erstwhile Chief Justice of India, Mr Justice Dipak Misra.

 

The 3-Judge Bench comprising also Mr Justice A.M. Khanwilkar and Dr Justice D.Y. Chadrachud, in their separately authored but concurring judgments delved deep into international practices of various courts on live streaming and real-time screening of the court proceedings. Examples were quoted in galore from countries like Israel, France, Germany, Britain, United States, Canada, Singapore, etc. by the Court to accede to arguments of the law student that live streaming is an essential aspect of the justice dispensation system of any country. The majority opinion authored by Justice A.M. Khanwilkar accepted that live streaming procreates justice that is easily visible on smartphones or such utilitarian widgets, instead of the person undergoing a rigmarole of travelling all the way to courts with resultant mental agony of arranging means to somehow attend his case in time. The Court accepted the plea that a “publicised justice” through live streaming becomes extremely affordable, as it brings the whole system virtually at the doorstep of the litigant or those wanting to observe it closely from the legal fraternity, even law students. Court also examined the exceptions brought on record by the Attorney General to live streaming, cases that warrant secrecy, confidentiality and be curtained from the normal process of live streaming.

 

The concurring judgment authored elegantly by Dr Justice Chadrachud elaborated how live streaming makes judiciary accountable and acceptable to those it is meant to serve i.e. the litigants. Quoting the celebrated saying of Justice Louis Brandeis[4], “sunlight is the best disinfectant”, Justice Chandrachud observed how live streaming makes Judges conscious in their conduct; fair in their approach towards the counsels and those listening to them, which transparency is bound to bode well for the institution in the longer run. It also makes each and every participant in the court extremely cautious and cognizant of whatever he is arguing before the court of law.

 

Live streaming as “one pill for many ills” is the synthesis of the wide spectrum of observations recorded in the concurring judgment of Justice Chandrachud in Swapnil Tripathi case[5].

 

Summing up, the groundbreaking verdict of the Swapnil Tripathi case[6] made publicity, visibility, open access to virtual courts a rule/norm and its denial (in particular cases to be discussed below) an exception.

 

It has been more than 3 years since the judgment of Swapnil Tripathi[7] was handed over to the nation by the Supreme Court, but perhaps its observance in reality by all the High Courts is yet to be witnessed. Except the Gujarat and the Karnataka High Courts, that too only for their Chief Justice’s Court, no other High Court of the country has perhaps ventured out to join the fray of taking the path-breaking decision of live streaming of all its courts. The success of live streaming can be gauged from the fact that the official YouTube channel of the Gujarat High Court as on 21-6-2021 had more than 60,000 subscribers and more than approximately 60 lakh views of various videos uploaded as part of live streaming.

 

Preceding the decision of the Gujarat High Court to live stream its proceedings was an earnest endeavour made by another law student from Nirma University who took the courage to file a writ petition before the High Court, titled as Pruthvirajsinh Zala.[8] The Division Bench of the High Court led by its Chief Justice Mr Vikram Nath, though disposed of the writ petition holding that the issue is being looked into on the administrative side by the E-Committee of the High Court, but in the process there were few very important takeaways from the High Court’s judgment. The High Court elaborately discussed the mechanism evolved by various High Courts of the country, including the Kerala High Court for ensuring either live streaming or “open access to courts” through State-to-State methodologies. Vide paras 8 and 9, the judgment beautifully correlates the right to know and learn as a facet of Article 19(1)(a) and how public display or judicial proceedings serves this right appropriately. Soon thereafter with effect from the first week of October 2020, the Chief Justice led Bench started live streaming of its proceedings on a daily basis. Though all other courts of the Gujarat High Court are yet to emulate that decision, however something is always better than nothing. Recently, with effect from the first week of June 2021 the Karnataka High Court also joined the fray with its Chief Justice led Division Bench live telecasting its proceedings.

Except these two High Courts, sadly, despite the passage of more than 3 years, no other High Court has stepped out to make its proceedings public. This includes the hyped High Courts of the country like Delhi, Bombay, Kolkata, etc. The inaction on the part of constitutional courts of the country, specifically the High Courts is not only concerning but also disconcerting.

Recently, the Standing Committee of the Parliament tabled its 103rd Report titled as “103rd Report on Functioning of Virtual Courts/Court Proceedings through Video Conferencing” before both the Houses of Parliament on 11–9-2020.[9] The Report underscored the necessity of promoting openness and transparency for reinforcing public faith in the judicial system. Vide Para 2.38 (at p. 10) of the Report, the said Public Accounts Committee (PAC) Report observed thus:

 

“2.38 The Committee notes that world over, court proceedings are recorded in some form or the other. The Supreme Court has time and again emphasised the significance of live streaming of court proceedings in promoting openness and transparency which in turn reinforce public faith in judicial system. The Committee agrees with the observation made by the Supreme Court that live streaming court proceedings, especially cases of constitutional and national importance having an impact on public at large or a section of the public will promote transparency and openness. The litigant need not come to the court to watch the proceedings and thus will reduce crowding inside the court. The judiciary may also consider broadcasting virtual hearings of certain specified categories of cases to further the principle of open justice and open court.”

 

The PAC whilst arriving at the aforesaid conclusion referred to a host of judgments of various courts, including that of the Gujarat High Court; views and opinions conveyed by the eminent citizens of the society and such other stakeholders.

 

Exceptions to Live Streaming and Visibility of Courts

 

As stated infra, public access to courts had been made a rule and secrecy its exception. Even the concept of live streaming is not without exceptions. There are catena of cases and circumstances where a closed and a four-walled court is expedient in the larger interests of the litigant as also the society so that the demeanour of the Judges, counsels, witnesses or any participant of the proceedings does not spill out in public. Swapnil Tripathi[10] also elaborately discussed the exceptions where live streaming may be dispensed with for averting threats of misuse of dialogue and discussion exchanged inside the court. The report of Attorney General was adverted to at length and broadly the following category of cases as an illustration (not exhaustive) were considered to be outside the pale of the rule of public visibility. Vide Swapnil Tripathi case[11], para 49:

 

(i) Matrimonial matters.

(ii) Matters involving interests of juveniles or the protection and safety of the private life of the young offenders.

(iii) Matters of national security.

(iv) To ensure that victims, witnesses or defendants can depose truthfully and without any fear, special protection must be given to vulnerable or intimidated witnesses. It may provide for face distortion of the witness if she/he consents to the broadcast anonymously.

(v) To protect confidential or sensitive information, including all matters relating to sexual assault and rape.

(vi) Matters where publicity would be antithetical to the administration of justice.

(vii) Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

 

The aforesaid category was stated to be illustrative and it was left to the discretion of the constitutional courts to determine those categories of cases, which were to be excepted from public viewership. This is however with a rider that the excepted cases must belong to the same genre of those enumerated in the list in the Attorney General’s report.

 

The Supreme Court has also echoed the requirement of “in-camera proceedings” wherever needed from time to time. In Supt. and Remembrancer of Legal Affairs v. Satyen Bhowmick[12] it was so said in following words:

  1. We might also mention that Section 14 was interpreted by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra[13] where this Court while dealing with the question of holding proceedings in camera observed as follows:

 

21. Having thus enunciated the universally accepted proposition in favour of open trials, it is necessary to consider whether this rule admits of any exceptions or not. Cases may occur where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera. While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a case is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? … That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. … It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.”

 

Even otherwise, a number of statutes provide for exceptions to “open courts”, even when convened physically and mandate their holding in camera. Some such special enactments are as follows:

(a) Under Juvenile Justice (Care and Protection of Children) Act, 2000, young offenders (below 16 years of age) are tried in closed rooms before the Juvenile Board. This Board consists of Chief Judicial Magistrate as the Chairperson with two social workers as its members. Though there is no express provision for in-camera trial, the intent of statutes at many places requires the proceedings to be not carried at par with normal courts.

(b) Matrimonial matters also, specifically those concerning judicial separation, restitution of conjugal rights, divorce, impotency, adultery, etc. This is because the right to reputation of both the parties to the lis is of paramount importance to be balanced and preserved from general gaze.

(c) Similarly, Section 11 of the Family Courts Act, 1984 authorises the Family Court to accept a certain set of proceedings wherever Family Court is convinced about maintaining its secrecy. This is however subject to exercise of due care and caution by the court with reasons to be recorded in writing for denying public access to such proceedings.

(d) Section 327(3) CrPC, 1973 itself contains an exception by mandating prior permission of the court in publication, printing of particular categories of proceedings. Breach of Section 327(3) has been made punishable under Section 228-A IPC, 1860, which reads thus:

228-A. Disclosure of identity of the victim of certain offences, etc.—(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB or Section 376-E is alleged or found to have been committed (hereafter in this section referred to as “the victim”) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(e) Section 44 of the Unlawful Activities (Prevention) Act, 1967 authorises the court to hold proceedings in camera or pass any order that may be necessitated for keeping the identity of witnesses or their addresses intact. The court can even put a moratorium on publication of its proceedings by the media, violation of which entails penal consequences.

 

From the examples above, it is beyond any pale of doubt that even live streaming has its own exceptions, embodied in various enactments. However all such exceptions are for special reasons, geared towards either the protection of  reputation or preservation of identity or address of the witness; when concerns of privacy trump over public disclosure of certain facts, which may put at risk the mutual relations between two persons, etc. Therefore whenever there is an attempt to curtail the public dissemination of court proceedings or an attempt to restrict access to openness of courts, what is to be examined is the outweighing concern or the equity that mandates such secrecy. If, on examination of all the necessary aspects, one arrives at a conclusion that public interests at large would be served more by disclosure than by secrecy, then exceptions cannot be allowed to defeat the rule and vice versa.

 

Oral Proceedings and Right to Report of Journalists

Lately there has been a lot of discourse and debate on the media’s right to live access and reporting of court proceedings, especially virtual court proceedings. In other words, it is a “right to report of journalists” which is stated to have been derived from Article 19(1)(a) of the Constitution of India as a concomitant to the “fundamental right to know”. Not much needs to be dilated upon right to know as expounded by the Supreme Court under Article 19(1)(a) as an essential attribute of freedom of speech and expression. In State of U.P. v. Raj Narain[14], the Supreme Court categorically held that freedom of speech and expression is directly correlated with the right to information and the right to know about the happenings in the society especially those occupying positions of power. The celebrated observations of the Supreme Court in State of U.P. v. Raj Narain[15] read as follows:

 

  1. 74. In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.

 

On the same lines were the observations of Supreme Court in Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd.[16], wherein the Court further expanded this right and recognised that the right to information is a fundamental right under Article 19 read with Article 21 of the Constitution. This Court in Reliance Petrochemicals case[17] observed that:

 

    1. 34. … We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform.

 

The right to know holds special importance for journalists, especially those whose primary responsibilities include live reporting of any decision-making process be that of the executive or of the courts. Therefore journalists, especially from  online media networks, have been clamoring for their right to report as a necessary corollary to Article 19(1)(a) rights. A spate of petitions have been filed before various High Courts by  journalists claiming that their right to report includes the right to access live court proceedings. Journalists of online legal media platforms like Bar and Bench and Live Law have approached Allahabad High Court[18] and the Madhya Pradesh High Court[19] in the recent past for being permitted to access court proceedings on a real-time basis.

 

The cause of action for journalists to approach various High Courts was fuelled by the recent judgment of the Supreme Court in Chief Election Commr. v. M.R. Vijayabhaskar[20] wherein the Supreme Court was approached to examine the plea for expunging of oral remarks made by Madras High Court. Shorn of unnecessary details, the Division Bench of the High Court presided by its Chief Justice orally remarked that officers of Election Commission must be booked and tried for murder charges. The aforesaid remarks became a subject of intense debate over social media as also in television debates, where people on both sides of the divide levelled aspersions on Commission for holding elections amidst peak of Covid pandemic. These oral remarks made by the Court escalated the issue so much that the Chief Election Commissioner had to knock at the doors of Supreme Court for the deletion of the said remarks. The Supreme Court Bench headed by Dr Justice D.Y. Chandrachud thus was seized of a golden opportunity of examining the right of media to report “course of proceedings” convened before the constitutional courts of the country, especially the High Courts. The Court beautifully correlated Article 19(1)(a) with the “right to report of journalists”, in a digital age, where live tweeting of any information has the cascading effect of generating a forest fire. The Court vide paras 23 and 31  of Vijayabhaskar case[21] upheld the right of journalists and media to live report the court proceedings and observations, including even those that may not even be encrypted as part of the final order or judgment of the Court. The Court elevated the inalienable rights of free speech and expression reading in them the right to have live access to court proceedings, which makes justice dispensation transparent and has the effect of making everybody accountable in the process including Judges on the Bench. Some of the observations of the Supreme Court that have got perpetually engraved on the wall can be quoted as follows:

 

    1. 23. Cases before the courts are vital sources of public information about the activities of the legislature and the executive An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights. In Swapnil Tripathi v. Supreme Court of India,[22] a three-Judge Bench stressed upon the importance of live streaming judicial proceedings. One of us (D.Y. Chandrachud, J.) analysed the precedent from a comparative perspective:

 

82. … Through these judicial decisions, this Court has recognised the importance of open courtrooms as a means of allowing the public to view the process of rendering of justice. First-hand access to court hearings enables the public and litigants to witness the dialogue between the Judges and the advocates and to form an informed opinion about the judicial process.

 

    1. 83. The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public’s right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them.”

emphasis supplied

***31. Our court has performed its modest part to acknowledge the rapid pace of the development of technology, and our need to keep up. In Swapnil Tripathi[23], it noted:

 

“C. Technology and Open Court

    1. 84. In the present age of technology, it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smartphones has revolutionised how we communicate. As on 31-3-2018, India had a total of 1206.22 million telecom subscribers and 493.96 million internet users. Technology can enhance public access, ensure transparency and pave the way for active citizen involvement in the functioning of State institutions. Courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual accessibility.”

Reverting to the journalists’ plea, they have eventually been successful before both the Allahabad as well as the Madhya Pradesh High Courts. The Allahabad High Court on the administrative side decided to display the joining link publicly on its website for enabling the media and journalists to join the ongoing court proceedings. The E-Committee of the Madhya Pradesh High Court also in the same vein, filed an affidavit before court stating that mechanism shall soon be evolved through which one and all from media shall be allowed to closely watch and observe live court proceedings virtually. However, even though two High Courts of the country have taken a call to publicly display the joining links for access by media, the other High Courts of the country are yet to follow suit. Maybe for the journalists, it is supposed to be a long-drawn battle of approaching all the High Courts one by one for the same relief. However once live streaming of all the courts sees the light of the day, then possibly this series of litigation may not be required at all.

 

Epilogue

It is time to draw curtains on a detailed  article which attempts to deal with all the possible facets of live streaming. Whoever I have spoken to in the recent past, advocates for adoption of live streaming as a cherished utopian. However, words lack action and that is where the Indian judicial system is failing itself on an opportunity it was offered to by one of the landmark judgments of the Supreme Court in 2018 i.e. Swapnil Tripathi.[24] A practice being followed consistently over a passage of time becomes a precedent and this is what is precisely happening with all the High Courts of the country. None wants to venture ahead and show alacrity in adoption of the idea of live streaming. High Courts are headed by Chief Justices, who are akin to captains of a sailing ship and they are supposed to take a call on such vital policy issues. The Bar per se may not take the lead until the Chief Justice of the High Court concerned shows his readiness for public viewership of the proceedings of his court. Perhaps half of the job would be done the day when learned Chief Justices of the respective High Courts themselves go an extra mile and prove to be role models for all the puisne Judges of their High Court. Gujarat and Karnataka are more than enough for other High Courts to emulate. On a lighter note, I am reminded of the lines of brand ambassador for Gujarat and millennial actor Mr Amitabh Bachchan, “kuch din to gujaro Gujarat me”. In the present scenario, the slogan holds much pertinence for the learned Chief Justices of all the High Courts of the country to spend a few minutes watching how seamlessly proceedings of Gujarat High Court are screened on YouTube.

 


†Siddharth R. Gupta, Advocate practising at Madhya Pradesh High Court and Supreme Court of India.

††Utkarsh Sharma, 4th year student at Unitedworld School of Law, Karnavati University, Gandhinagar, Gujarat.

 

[1] Martin Luther King, Jr., was an African American Baptist Minister and activist, who became the first President of the Southern Christian Leadership Conference (SCLC) and most visible leader in the Civil Rights Movement. He was the face of the battle against racial discrimination, and propelled several civil rights movements. In 1963, he was awarded the Nobel Peace Prize for his non-violent campaign against racism. The aforementioned lines were said by him in the spring of 1968, where he was sharing his views on the importance of remaining awake through a revolution and the dangers of neglecting something of such great importance. Source: <HERE >.

[2] George Bernard Shaw was an Irish comic dramatist, literary critic, and socialist propagandist, winner of the Nobel Prize for Literature in 1925. G.B. Shaw, through high comedy, continued to explore religious consciousness and to point out society’s complicity in its own evils. The aforementioned lines signify the conflict between man as spiritual creator and woman as guardian of the biological continuity of the human race showcased in his play, “Man and Superman” in 1903.

[3] (2018) 10 SCC 639.

[4] Louis Dembitz Brandeis was an American Lawyer who went on to become Associate Justice in the US Supreme Court from 1916 to 1939. He developed the modern jurisprudence of free speech and laid the basis for a constitutionally protected right to privacy. Source:  <HERE>.

[5] (2018) 10 SCC 639.

[6] Ibid.

[7] Ibid.

[8] Pruthvirajsinh Zala v. High Court of Gujarat2020 SCC OnLine Guj 1055.

[9] 103rd Report prepared by the Rajya Sabha Secretariat New Delhi in September 2020. The Report was prepared by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, comprising eminent members of the Bar like Shri Bhupender Yadav, Mr Vivek K. Tankha, Mr P. Wilson and thirty other members of Parliament.

[10] (2018) 10 SCC 639.

[11] Id., p. 675.

[12]  (1981) 2 SCC 109, 114-15.

[13] AIR 1967 SC 1 : (1966) 3 SCR 744.

[14] (1975) 4 SCC 428.

[15] Id., p. 453.

[16] (1988) 4 SCC 592.

[17]  Id., p. 613.

[18] Areeb Uddin Ahmed v. Allahabad High Court, Public Interest Litigation (PIL) No. 865 of 2021.

[19] Nupur Thapliyal v. High Court of Madhya Pradesh., W.P. No. 9669 of 2021 (Principal Seat at Jabalpur)

[20] 2021 SCC OnLine SC 364.

[21] Ibid.

[22]

[23] (2018) 10 SCC 639.

[24] Ibid

Experts CornerSiddharth R Gupta

Publicity is the very soul of justice, it plays a vital role in the rule of law. Open justice is a safeguard against judicial arbitrariness or idiosyncrasy and maintains the confidence of the public in the administration of justice. Where there is no publicity, there is no justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the Judge himself whilst trying under trial.

Jeremy Bentham, Jurist[1]

—-

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to  found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”

Lord Atkinson in Scott v. Scott[2]

                                                                           —-

What proved to be a groundbreaking verdict by the Supreme Court in 2018 in Swapnil Tripathi v. Supreme Court of India[3], it could translate into reality only recently with very few of the High Courts of the country following suit and starting real-time live streaming of proceedings with the Karnataka High Court being the latest entrant in the fray. Though the constitutional necessity of live streaming of court proceedings was pronounced in 2018, it was only in the later half of 2020, when Gujarat High Court pioneered in practice by starting live transmission in October 2020. As on 15-5-2021, the said YouTube channel live streaming the court proceedings of Chief Justice’s Court had been touching around 35 lakh views, with a whopping 60 thousand odd subscribers approx. This globally available channel has 100 (odd) videos available to be accessed anytime by anybody for its viewers.

 

In two parts of this article, we thus trace out the nuances associated with live screening of court proceedings; the sinking challenges and opportunities brimming with the possibilities of transforming the Indian justice dispensation system into an affordable, accountable, accessible and acceptable one for the citizens of the country. The article shall be staggered under the following heads to the make the whole read interesting and engaging.

 

Part I

  1. The Prelude – “Open Courts” and “Publicised Justice”
  2. Indian Context to “Open Courts”
  3. Statutory Canons recognising “Open Courts”
  4. Innovative Instances from Early 21st Century
  5. Swapnil Tripathi Judgment and its Trail in 3 Years
  6. Exceptions to Live Streaming and Visibility of Courts
  7. Video Conferencing Rules of Various High Courts
  8. Oral Proceedings and the Right to Report of Journalists
  9. The Epilogue

 

  1. The Prelude – “Open Courts” and “Publicised Justice”

Under the Indian Constitution, the courts, especially the constitutional courts like the High Court and the Supreme Court have an eminent role to play. The Indian Constitution was nurtured in the glory of common law ushered in by the British along with them, which had always followed the venerated practice of “open courts” and “publicised justice”.

 

 Common law has always treated court as a “seat of service” rather than as a “place of status” . In India neither the Civil Procedure Code, 1908, Criminal Procedure Code, 1973 nor for that matter General Clauses Act, 1897 defines the content of the term “court”. However, a profound research aimed at discovering its meaning leads one to the general glossary of the Legislative Department, Ministry of Law and Justice, defining “court” as a “place” where justice is administered. Section 3 of the Evidence Act, 1872 defines “court” to include all Judges, Magistrates and all such persons legally authorised to take evidence. Section 20 of the Penal Code, 1860 succinctly explains “court of justice” as – a Judge who under law is empowered to act judicially alone or a body of Judges to act judicially as a body, and when such Judge or collegium of Judges acts judicially.

 

The dictionary of the US Federal Judiciary elaborates “court” as a government entity authorised to resolve legal disputes, whilst Black’s Law Dictionary states it to mean a governmental body consisting of one or more Judges sitting to adjudicate disputes or a place where justice is judicially administered. It is, therefore, beyond any cavil of doubt that the lowest common denominator of all the definitions across the globe imply “court” as a government entity comprising Judges handling the administration of justice. Ergo “court” is a “seat of service” rather than a “place of status” or a position. To this “seat of service”are attached duties and obligations, much higher than other wings of the executive, obliging its incumbents to act judicially with a scintillating conscience for administering justice.

 

“Open court” had thus been the bedrock of the British system, wherein originally all trials were held “ostis apertis” i.e. with open doors and windows. The practice of “open court” or “open judicial proceedings” was established during the 17th century, when in 1612 AD, Lord Coke lauded the great principle that all causes must be heard, ordered and determined openly. An “open court” with a “transparent justice” has always been trusted to deter judicial arbitrariness idiosyncrasies in the delivery of justice, a problem which the judicial system of every developing country has to pass through to mature. “Open court” principle is supported for three reasons: firstly, it assists in the search for truth and is informative and educational for the public. Secondly, it enhances accountability and deters misconduct on those delivering justice. Thirdly, it has a therapeutic function offering a mental assurance that justice has been done. “Open justice” had its origins in England before the Norman conquest, when free men in the community participated in the public dispensation of justice.

 

2. Indian Context to “Open Courts”

In India, “open courts” with a “publicised justice” system came to be judicially acknowledged emphatically in Naresh Shridhar Mirajkar v. State of Maharashtra[4], where the Court was addressing the submissions of the journalists that they had a fundamental right to attend the proceedings of the Court under Articles 19(1)(a), (d) and (g). A nine-Judge Bench of the Supreme Court then underscored the efficacy of open trials/courts as a means for bolstering the legitimacy and public confidence in the society. Vide para 22, the Constitution Bench did not mince any words whilst observing that “open courts” subject the whole institution to a public scrutiny and gaze, acting as a potent check against judicial caprice or vagaries, infusing fairness, objectivity and impartiality in the overall administration of justice.

 

The tangible takeaways from the judgment of Mirajkar[5] were thus: “open courts” with a publicised judicial process act as a vital instrument of inspiring public confidence in the administration of justice; the soul of justice demands it to be vocal, visible and veritable: the aforesaid requirement, however must yield to necessity of restricting public access to the proceedings if so required in the special facts of any particular case.

 

The next stop for this avowed principle of “open courts” was after almost two decades in Olga Tellis v. Bombay Municipal Corpn.[6], wherein a Constitution Bench of the Supreme Court led by the then CJI late Justice Y.V. Chandrachud went on to say that dialogue with the person likely to be affected by the proceedings (or the final outcome of the same) meets the fundamental requirement of “justice must also be seen to be done”. The Court held that such a participative process of decision making and hearing exalts the stature of institution delivering justice. Quoting Justice Frankfurter, the Court stated that propriety and the moral authority of any conclusion largely depends on the mode by which it was reached. Never a better way has been devised for arriving at truth, than to give a person in jeopardy of a serious loss, an opportunity to participate in its decision-making process. Thus, in case of justice not only the ends are important, but also the means through which it is achieved or delivered are of equal importance, one of them being its due and adequate publicity.

 

In the long line of judgments, which joined the dots completing the picture subsequently reiterating the same principle are LIC v. Manubhai D. Shah[7], Mohd. Shahabuddin v. State of Bihar[8], through which the Supreme Court from time to time contributed its bit in affirming the lesser known saying that “courts exist primarily to provide justice to its citizens against the might of the State”. A tension between the court and the executive is always healthy for a vibrant democracy and therefore the discourse which goes on as a part of resolving this tension cannot be far removed from the lives of individual citizens whose livelihood depends on the decision-making executive.

 

Thus, much before their formal incorporation in the statutes or the Constitutions of the world, “open courts” and “publicised justice” had been pre-existing in the legal narrative. These principles have been cast in stone through judicial recognition in almost every decade of our legal history.

 

3. Statutory Canons Recognising “Open Courts”

“Open courts” as an imperative constitutional necessity has been embedded in the Indian Constitution vide Article 145(4), which reads that the judgments of the Supreme Court of India shall be delivered only in “open court”.

 

Article 145(4) of the Constitution of India speaks:

(4) No judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open court.

 

Somewhat similar expression of a “publicised justice” occurs under Order 18 Rule 4 CPC, 1908, which mandates that recording of evidence of witnesses in any civil proceeding to be administered orally only in “open court” in the presence, direction and under the superintendence of the Judge; Section 153-B CPC, 1908 in the same breath designates any place where a civil court is held for trying any suit (civil) shall be deemed to be an “open court”, where public shall have an access, subject to infrastructural convenience. The criminal laws of our country are not behind and Section 327 CrPC, 1973 also mandates the courts to be open, subject to the discretion of the Presiding Judge or the Magistrate.

 

Section 153-B CPC, 1908 speaks:

153-B. Place of trial to be deemed to be open court.—The place in which any civil court is held for the purpose of trying any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them:

 Provided that the Presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.

 

Section 327 CrPC, 1973 speaks:

Court to be open.— (1) The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C,  Section 376-D or Section 376-E of the Indian Penal Code (45 of 1860) shall be conducted in camera: Provided that the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court:

Provided further that an in-camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the court:

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.

 

If one intends to look at the international scenario, then there also the said norm has been firmly entrenched with international acceptance in the form of Article 6(1) of the European Convention on Human Rights, which provides as follows:

 

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

 

It would therefore not be out of place to mention that the Constitution-makers as also the Parliament itself has always believed that dispensation of justice must receive a comprehensive public attention, dialect and participation in the said exercise by the citizens for whom it exists. The courts in India not only interpret the law, but interpret it purposively and constructively to take the legislative intention forward to such an extent that it makes the working of such enactments and the machinery thereunder coherent and productive in the interests of its subjects.

 

4. Innovative Instances from Early 21st Century

Enthusiasm to ensure that justice is dispensed publicly has always been present in varying proportions amongst the Members of the Bench and there had been instances which displayed innovation and ingenuity of its novelty by the Judges concerned towards ensuring that what they do is so done under full public gaze. Some of the instances which I could discover from my tiny expanse of research can be quoted hereinbelow:

 

  1. As far back as in 2005 down south, the Hyderabad High Court (erstwhile Andhra Pradesh High Court) allowed the entry of television media with live video recording in the courtroom when special judicial assignments were being taken up in select few courts. However this initiative died down after receiving a lukewarm reception of successive Chief Justices of the High Court, who preferred sticking to the status quo than changing to demanding expectations of the organic society.
  1. Justice B.K. Somasekhara in an inimitable style of his own allowed the court hearings to go live, when he was conducting proceedings as a Head of the Judicial Commission inquiring into the land acquisition scam of construction of the Yeleru Canal laid between Visakhapatnam and East Godavari Districts. Not to forget, Justice Somasekhara was a sitting Judge when he was heading this inquiry in 1996. The video recordings cross-examining the erstwhile Ministers of Finance and other Cabinet Ministers of the State, especially those at the helm of the creamy portfolios became a subject of intense debate. The inquiry was constituted by the High Court in a spate of writ petitions, more than 100 in number alleging irregularities in payment of compensation. Initiative of Justice Somasekhara to ensure live transmission of the proceedings on national platforms like Doordarshan through the Ministry of Information and Broadcasting could not muster political support. Eventually all the birds of the same feather flock together and failed the next gen efforts of Justice Reddy.
  1. Through yet another off-the-cuff practice, Justice B. Subhashan Reddy as the Chairman of Andhra Pradesh Human Rights Commission allowed live telecast of his court proceedings in 2005 in cases involving human right infringements. To its viewers, it was a delight to have watched Justice B. Subhashan Reddy’s strict handling of the delinquents in these proceedings, especially government officers, when questions to them elicited squeamishly mumbled answers.
  1. In 2015, a Division Bench of Madras High Court headed by Justices S. Tamilvanan and C.T. Selvam also live streamed the court proceedings in the contempt case against Bar representatives Advocates Dharmaraj and A.K. Ramasamy. The duo were served with contempt notices for opposing the mandatory helmet ruling through a rally taken out by lawyers in Madurai. The live streaming was arranged through a large sized LED television for the general public.

 

Thus flame to be transparent and visible to the common man in the judicial process has always remained ignited in some of the incumbents of the high judicial offices, but it was only in Swapnil Tripathi[9]that for the first time all the flowers were garlanded into a comprehensive dicta by the Supreme Court. A judgment for all generations to come was thus handed over to the nation led by the then Chief Justice of India Justice Dipak Misra.

 

The discussion on the remaining heads shall be undertaken in the subsequent part of this article. As an incomplete discussion would have not done justice with the issue at hand, therefore the next part shall be completing the full round by providing insight into the Swapnil Tripathi[10] judgment and its trail of events. A bird’s eye view of the video conference rules framed by the various High Courts and the ills they are plagued by shall also be undertaken.

 


† Siddharth R. Gupta, Advocate practising at Madhya Pradesh High Court and Supreme Court of India.

†† Utkarsh Sharma, 4th year student at Unitedworld School of Law, Karnavati University, Gandhinagar, Gujarat.

 

[1] John Bowring (ed.), The Works of Jeremy Bentham, Vol. VI (London, 1843) 351–352. Also see, Garth Nettheim, The Principle of Open Justice (1984) 8 Tasmanian Law Review 25.

[2] 1913 AC 417, 463.

[3] (2018) 10 SCC 639.

[4]  AIR 1967 SC 1 : (1966) 3 SCR 744.

[5] Ibid.

[6] (1985) 3 SCC 545.

[7] (1992) 3 SCC 637.

[8](2010) 4 SCC 653.

[9] (2018) 10 SCC 639.

[10] Ibid.

Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., allowed a bail application of the applicant who was charged for offences under sections 420,467,468,471,472,474 read with section 120B of Penal Code, 1860. Investigating agency in the case was the Economic Offences Wing, Bhopal (EOW).

The complainant along with others had registered the FIR against the applicant and other co-accused persons. The property in question was a piece of land admeasuring 93.37 acres, the owner died leaving behind seven legal heirs. In the FIR it was alleged that t Mohammad Sharif had executed the power of attorney dated 17-01-1989 without the knowledge of the 6 legal heirs and altered the remaining paragraphs of the power of attorney and thereby committed forgery. It was also alleged that Mohammad Sharif, in connivance with other accused persons, executed various sale deeds in favour of his family members and friends one of them being the applicant and she was sought to be arrested that day for this alleged offence that was committed thirty-one years ago.

Observation and Analysis:

Case after case this court has observed that the District Judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses.

The Court shared figures with regard to pendency of bail applications before the three benches of the High Court and the number of Criminal Appeals that have been withdrawn by the appellants (still undergoing their sentence and who have not got the benefit of suspension of sentence), number of criminal appeals withdrawn from the High Court in the year 2020. The Court pointed out that huge burden of bail matters that has been shifted to the High Court, but the District Judiciary can hardly be held responsible because of professional hardships they may have to face, if they indeed start deciding bail applications applying the principle of “Bail and not Jail”.

The Court drew the attention of District Judiciary to the overcrowding of jails in the State. The Court discussed the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260 where the Supreme Court had extensively discussed the power of the police to affect an arrest. The Court further in full detail discussed the recent judgment of the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 where the Court had scathingly indicted the police for still bearing a colonial mindset and disdain for the liberty of the citizen.

The Court passed certain directions in order to ensure that the directions passed by the Supreme Court in Arnesh Kumar’s case were scrupulously implemented and followed by the police and the Judicial Magistrates in Madhya Pradesh:

 Directions to the Police

  1. where for an offence, the maximum imprisonment provided is up to 7 years, the accused shall not be arrested by the police as an ordinary course of action. Unless it is a special statute mandating such an arrest.
  2. Before effecting an arrest in such a case, the police would have to record its reasons that the arrest was essential to prevent such person from committing any further offence, or for a proper investigation of the case, or to prevent the accused from causing the disappearance of evidence or on the basis of credible apprehension that the accused would tamper with evidence or prevent a witness from disclosing such facts to the court or to the police which thereby necessitates the arrest of the accused.
  3. The State Police is directed to format and prepare a check list of pre-conditions fulfilled by the police under section 41(1)(b)(ii) of the Cr.P.C, while arresting an accused for offences bearing a maximum punishment up to 7 years. It is mandatory to supply a copy of the check list along with the remand application, to the Magistrate authorised to further remand the accused to police or judicial custody.
  4. Where decision is taken not to arrest the accused, the police shall forward an intimation to the Magistrate within two weeks of the registration of the FIR. This period may be extended by the Superintendent of Police of the district concerned with reasons to be recorded in writing.
  5. Where interrogation of the accused is required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C be served on the accused within two weeks from the date of registration of the FIR which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
  6. Where the police does not arrest the accused and upon notice u/s. 41A or 160 Cr.P.C, the accused appears before the police and assists the police in the course of investigation, in such a situation, the police are not to arrest the accused unless, there exists compelling reasons which must be recorded, as given in paragraph 31.2.
  7. If the police does not perform as required of them as hereinabove, it would constitute contempt of the order passed by this court in addition to such other action, which may be taken against the erring officer on the administrative side.

Directions to the Judicial Magistrates:

  1. The Magistrate, while exercising powers of remand, shall ascertain if the arrest effected by the police satisfies the requirements of section 41 of the CRPC as provided in paragraph 11.2 of Arnesh Kumar’s case (see paragraph 17 supra).
  2. The Magistrate shall ascertain the availability of the check list as ordered by the Supreme Court in paragraph 11.3 of Arnesh Kumar’s case.
  3. If there is non-compliance of paragraph 11.2 and/or 11.3 of Arnesh Kumar’s case, the Magistrate shall not authorise the further detention of the accused and shall release forthwith as the arrest itself is unlawful and therefore, his detention would also be rendered unlawful on account of the police not having fulfilled the requirements of section 41 of CRPC.
  4. It is mandatory for the Magistrate authorising detention to record his independent satisfaction and also ensure in his order of remand that his satisfaction for further remand of the accused stands satisfied in compliance of paragraph 11.4 of Arnesh Kumar’s judgement.
  5. The Magistrate shall also satisfy himself whether specific reasons have been recorded for the arrest of the accused and whether those reasons are relevant, raising a reasonable conclusion that one of the conditions for further detention of the accused as an under trial is satisfied.
  6. Failure on the part of the Magistrate to perform as directed hereinabove, my see the initiation of proceedings against such Magistrate on the administrative side.

While considering an application for bail, the following may be kept in mind;

  1. Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?
  2. Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders?
  3. Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?
  4. Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?
  5. Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?
  6. Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail?

The Court allowed the bail application and requested the office to circulate the directions to all the districts and disseminate to the lowest functionary, the directions given by this Court.

[Zarina Begum v. State of M.P., 2021 SCC OnLine MP 961, decided on 13-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For the applicant: Mr Sankalp Kochar and Mr Aman Dawra

For the respondent: Mr A. Rajeshwar Rao

Case BriefsSupreme Court

Supreme Court: In the case where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud* and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings and made a strong case in favour of Open Court and freedom of press.

Unmissable quotes

This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.

Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed.

Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms.

An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. Transparency in the functioning of democratic institutions is crucial to establish the public‘s faith in them. Public scrutiny fosters confidence in the process. Public discussion and criticism may work as a restraint on the conduct of a judge. An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights.

An open court and transparent dispensation of justice in all its modalities, is an end in itself.

Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law.

The world is adapting to technology at a pace which is often difficult to catalogue, and many of our citizens are becoming digital natives from a young age. It is understandable that they will look towards modern forms of media, such as social media websites and applications, while consuming the news. This, understandably, would also include information reported about the functioning of courts. Hence, it would do us no good to prevent the new forms of media from reporting on our work.

Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings.

Lokmanya Balgangadhar Tilak’s Trial

The Court also cited the Lokmanya Balgangadhar Tilak‘s first trial for sedition to highlight that media reporting has operated alongside formalized court processes for close to a century. “Court proceedings in colonial India, especially sedition trials, were also sites of political contestation where colonial brutality and indignity were laid bare.”

The widespread reportage on Lokmanya Balgangadhar Tilak‘s first trial for sedition highlighted the variance in procedural laws and rights denied to Indian undertrials, as he struggled to access legal aid and was convicted in spite of a non-unanimous verdict of the jury. Lokmanya‘s poignant words, while recorded by the order as a formalized process of sentencing, were circulated far and wide by anti-colonial publications which fueled India‘s struggle for freedom:

“In spite of the verdict of the Jury I maintain that I am innocent. There are higher Powers that rule the destiny of men and nations and it may be the will of Providence that the cause which I represent may prosper more by my suffering than by my remaining free.”[1]

These words incidentally also adorn the plaque outside that very courtroom in the Bombay High Court to this day.

Madras High Court’s remarks that led to this order

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”.

Madras High Court’s remarks harsh, metaphor inappropriate but can’t be expunged; Supreme Court junks EC’s plea seeking restrain on Media reporting Court proceedings

[Chief Election Commissioner of India v. M.R Vijayabhaskar, 2021 SCC OnLine SC 364, decided on 06.05.2021]


*Judgment by: Justice Dr. DY Chandrachud

Appearances before the Court:

For EC: Senior Advocate Rakesh Dwivedi and Advocate Amit Sharma

[1] Emperor vs Balgangadhar Tilak, (1908) 10 BOMLR 848 (Bombay High Court)

Case BriefsSupreme Court

Supreme Court: Activating the “dormant” Article 224A of the Constitution, the 3-judge bench of SA Bobde, CJ and Sanjay Kishan Kaul and Surya Kant, JJ has issued some general guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent.

While the discretion of the Chief Justice of the High Court under Article 224A is not, the Court stated that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments.

GUIDELINES

i. Trigger Point for activation of Article 224A:

The Trigger Point cannot be singular and there can be more than one eventuality where the it arises

  1. If the vacancies are more than 20% of the sanctioned strength.
  2. The cases in a particular category are pending for over five years.
  3. More than 10% of the backlog of pending cases are over five years old.
  4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
  5. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

ii. Embargo Situation:

If recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise.

As per data, there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline.

“Thus, the parameter we have adopted is that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A.”

iii. Pre-recommendation process:

  1. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog.
  2. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court.

iv. Methodology of Appointment:

Para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution must be followed to see the progress made and impediments, if any. However, since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period.

v. Time to complete the process:

The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. Since there are a number of aspects not required to be adverted to for appointment under Article 224A, a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment.

vi. Tenure of Appointment:

The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years.

vii. Number of Appointments:

At least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.

viii. Role of ad hoc Judges:

  • More than five year old cases to be assigned to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, keeping the primary objective to deal with long pending arrears in mind.
  • A division bench of ad hoc Judge and sitting Judge in matters to be heard by Division Bench not to be constituted. The Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them.
  • Because of the very nature of the profile and work to be carried out by ad hoc Judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance.

ix. Emoluments and Allowances:

For all practical purposes the ad hoc Judge would receive the same emoluments, allowances and benefits as are admissible to the permanent/additional Judges.”

  • The emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension.

“This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines.”

  • Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances.

“… it is a misconceived notion that there will be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in, the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually results in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks.”

  • All allowance/perks/perquisites as are admissible to the permanent/additional Judge(s) would be given to the ad hoc Judge(s).
  • As far as housing accommodation is concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions.

The Court concluded with the following words,

“We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring/retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, we will endeavour to iron them out.”

[Lok Prahari v. Union of India, WRIT PETITION (C) NO. 1236 OF 2019, decided on 22.04.2021]

Case BriefsSupreme Court

Supreme Court: Taking note of the existing 220 vacancies in the High Courts, the 3-judge bench of SA Bobe, CJ and SK Kaul and Surya Kant, JJ stressed upon the importance of the Chief Justices of the High Courts making recommendations in time and said that there is no such impediment to initiate a new process without waiting for the result of the earlier recommendations.

The Court noted that the vacancies are known and the norms permit making recommendations up to six months in advance. However, even recommendations for 220 existing vacancies appear not to have been made much less for vacancies, which are going to arise in the next six months.

We, thus, once again, emphasise the requirement and desirability of the Chief Justices of the High Courts, who will make endeavour to recommend vacancies as early as possible even if they are not made at one go. We may add that even in the earlier orders we have noted the apparent hesitation of some High Courts to recommend names when the earlier list(s) is in the pipeline. We have opined that there is no such impediment to initiate a new process without waiting for the result of the earlier recommendations.

The pendency at the end of the Government: 

  • 45 names recommended from the High Courts pending with the Government for more than six months reached the Collegium in the last couple of weeks.
  • 10 recommendations from the list of old proposals in pipeline pending with the Government of India for considerable period of time.

“On the last date of hearing, the learned Attorney General had made a statement that a decision would be taken in this behalf within the next three months.”

  • 6 names reiterated by the Supreme Court Collegium a second time, are also awaiting appointment.

While the Attorney General KK Venugopal did not differ with the requirement of time bound schedule for filling the vacancies at every stage, he emphasised that the trigger for filling up of the vacancies is the recommendations made by the Chief Justices of the High Courts.

However, once the recommendations are made, there are two stages at which the matter rests with the Government – the first when the Ministry processes the names; and the second post the Collegium of the Supreme Court taking a call in recommending such of the names as are approved by the Collegium.

Insofar as the Judiciary is concerned, the second stage after the recommendations are made by the Collegium of the High Courts is the time period taken by the Collegium of the Supreme Court in consulting the consultee Judge(s) to take a call on those names.

As per the Memorandum of Procedure finalised by the Supreme Court Collegium on 10.3.2017:

  1. States may take not more than six weeks to send their views.
  2. The Central Government can presume no objection of the State Government, if their views are not received within six weeks.
  3. No timeline prescribed for the Central Government to forward recommendations.
  4. The Chief Justice of India to send recommendations/advise to the Law Minister within four weeks.
  5. The Law Minister to put up the proposal to the Prime Minister within three weeks for advise of the President.

In order to facilitate timely appointment, the Court advised to follow the following timelines in addition to the aforesaid:

i. The Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.

ii. It would be desirable that the Central Government forward the file(s)/recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB.

iii. It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.

iv. If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously, such appointment should be processed and appointment should be made within 3 to 4 weeks.

[PLR Projects Pvt. Ltd v. Mahanadi Coalfields Ltd., 2021 SCC OnLine SC 332, order dated 20.04.2021]

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Ajit Kumar and Siddhartha Varma, JJ.,  while holding that its’ their constitutional duty to save innocent people from the pandemic and in order to break the chain of COVID-19 pandemic, people are to be restrained from going outside their homes for a week, expressed that:

Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people.

It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.

Recent surge in the COVID-19 pandemic has virtually incapacitated the medical infrastructure in the State of U.P. and especially in cities like Prayagraj, Lucknow, Varanasi, Kanpur and Gorakhpur.

“…pandemic is teasing the system in a situation where patients have outnumbered the hospital beds and people are just running from pillar to post and in this process attendants of patients are not only getting infected but others in public are also getting infected and a complete chain has got formed.”

Court stated that before the pandemic spirals to engulf in it the entire population of these badly hit districts, it is necessary to take some harsh steps in larger public interest.

Further, the Bench remarked that it understands the limitation of the government in creating infrastructure to meet the challenge of COVID-19 and at the moment efforts are afoot to create the same but before all the efforts are translated into action much water would have flown under the bridge to the utter dismay of a large population of have nots.

“…in a democracy there are legitimate expectations from the government to adopt measures to meet public health issues like all other issues of public interest. Public interest expects judiciary to remain vigilant to all the issues which if not addressed to in time, will result in the failure of the system which is meant to safeguard public interest.”

Adding to the above, High Court stated that if people die of pandemic in a large number due to paucity of sufficient medical aid it would be the governments to blame that failed to counter the pandemic even after one long year of experience and learning. One would only laugh at us that we have enough to spend on elections and very little to spend on public health.

Calling early testing scheme or plan a farce, Court elaborated stating that the reports are neither updated before 72 hours nor, samples are taken care of, owing to the shortage of manpower. Only VVIPs have been getting the reports within 6-12 hours.

Economy, economy and economy is the only tune that the government is all the time harping upon, but bread and butter if you take to a person who needs oxygen and medication, it will be of no use to him.

Pomp show of Development

Calling out the Government, Bench expressed that if hospitals’ staff and medicos go ill for the relentless services to cure people in the pandemic, people would start losing their lives and all pomp and show of development would be of no avail.

Looking at the present situation, Court stated that night curfew in the name of Corona Curfew and Weekend Curfew are nothing else but a mere eyewash.

Not being satisfied with the Government efforts, Court stated that people are largely not following the Court’s Order for putting masks on their faces nor, the police could ensure 100% masking till date.

Due to the elections being conducted, police was virtually shifted to polling places giving priority to election above public health.

No Social Distancing

High Court stated that on many occasions in various political rallies masks were never worn by people. In our considered view action is liable to be taken against the organisers who did not anticipate such eventualities under the Uttar Pradesh Public Health Epidemic Diseases Act, 2020 and/ or any other relevant Act in force.

Admission of patients to ICUs have been largely done on the recommendations of VIPs. Even supply of life saving anti-viral drug namely Remdesivir is being provided only on the recommendation of VIPs. VIPs and VVIPs are getting their RT-PCR report within 12 hours, whereas, ordinary citizen is kept waiting for such reports for two to three days and thus, spreading further infection to other members of his/her family.

If popular government has its own political compulsions in not checking public movements during this pandemic, we cannot remain mere passive spectators.

We can’t shirk away from our constitutional duty to save innocent people from the pandemic which is spreading due to the negligence of a few.

Direction passed by the Court:

  • All establishments be it government or private, except financial institutions and financial departments, medical and health services, industrial and scientific establishments, essential services including municipal functions, and public transport, shall remain closed till 26th April, 2021. The judiciary will, however, function on its own discretion;
  • All shopping complexes and malls shall remain closed till 26th April, 2021;
  • All grocery shops and other commercial shops excluding medical shops, with more than three workers, shall remain closed till 26th April, 2021;
  • All hotels, restaurants and even the small eating points on thelas etc. shall remain closed till 26th April, 2021;
  • All institutions like educational institutions and other institutions relating to other disciplines and activities be it government, semi-government or private shall remain closed including for their teachers and instructors and other staff till 26th April, 2021 (this direction is for the whole of Uttar Pradesh);
  • No social functions and gatherings including marriage functions shall be permitted till 26th April, 2021. However, in case of already fixed marriages a necessary further permission would have to be taken from the District Magistrate of the concerned district. Gatherings would be limited to 25 persons and the district magistrate concerned shall take a decision after giving due consideration to the prevailing situation of the impact of Covid 19 including notification of containment zones in the area where such marriage has to take place;
  • All religious activities in public of any kind is directed to remain suspended till 26th April, 2021;
  • All religious establishments of any kind are directed to remain closed till 26th April, 2021;
  • All hawkers including fruits and vegetable vendors, milk vendors and bread vendors, shall go off the road by 11 AM every day till 26th April, 2021;
  • Containment zones shall be notified every day in two leading Hindi and English newspapers having wide circulation in the districts of Prayagraj, Lucknow, Varanasi, Kanpur Nagar/ Dehat and Gorakhpur.
  • All public movements on roads would remain restricted completely, subject to above directions. Movements would be only allowed in case of medical help and emergencies.
  • In addition to the above directions, we direct the State Government to go robust for implementing the current vaccination programme.

Court directed for the order to be sent to Chief Secretary, Government of Uttar Pradesh today to enforce the above directions from the night of 19-04-2021 till 26-04-2021 in the cities of Prayagraj, Lucknow, Varanasi, Kanpur Nagar, and Gorakhpur.

Our above directions are nowhere close to a complete lockdown. 

While concluding the High Court remarked that:

In this order if we have not imposed a lockdown it does not mean that we do not believe in it. We are still of the view that if we want to break the chain a lockdown for a duration of at least two weeks is a must.

 Government shall consider the imposition of a complete lockdown in the entire state.

Matter to be put up again on 26-04-2021. [In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive v. State of U.P., 2021 SCC OnLine All 273, decided on 19-04-2021]

Case BriefsHigh Courts

Manipur High Court: In a petition filed under Section 482 of Code of Criminal Procedure for quashing criminal compliant filed before the Judicial Magistrate, 1st Class, Churachandpur, MV Muralidaran, J., observed that

“It was incumbent upon the court below to have first discovered the basic nature of the dispute which altogether involves question of actual payment.”

The petitioner 1 and 2 are the Chief and Secretary of Lamdan Village Authority. The respondent was the ex-Secretary of Lamdan Village Authority and had voluntarily resigned from the post on 21-10-2013.

The respondent challenged the proceedings of the Special General Body Meeting held on 08-06-2013 thereby appointing the present petitioner-accused 1 as Chief before the customary Court as well as before the Deputy Commissioner, Churachandpur , his objection was, however, rejected as the petitioner-accused 1 was properly appointed. A Civil Suit was also filed by the respondent to restrain petitioner-accused 1 from acting as Chief and declare him the Chief of the Village but he did not succeed in that as well. The present respondent then filed the criminal complained before the Judicial Magistrate, 1st Class, Churachandpur regarding cutting down of trees belonging to the common forest and selling them without the consent of the villagers.

The present petition was filed on the ground that the respondent had given the incorrect facts about the civil suit and had also filed a malicious complaint in order to harass the petitioner-accused 1 and failed to appear before the concerned Magistrate. There was a non-disclosure of material facts relating to payment of full transaction in a money claim.

The main issue was as to whether the petition filed by the complainant before the Judicial Magistrate, 1st Class, Churachandpur is confined to civil dispute and the course of action so adopted is abuse of process of the Court?

The Court observed that after perusal of the statement of the complainant-respondent and witnesses and careful scrutiny of records, it is established that the dispute relates to the civil nature, moreover, the respondent has concealed the material and relevant facts relating to the actual transaction that took place.

The Court relied on the judgment in the case of GHCL Employees Stock Option Trust v. India Infoline Ltd., (2013) 2 SCC (Crl) 414 wherein the Supreme Court had elaborately discussed the controversy in hand and held that

“There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence.”

The Court was, of the opinion that the lower Court failed to determine the nature of dispute first which was predominantly of civil nature and was deliberately categorized as a criminal offence in order to wreck vengeance.

The Court also relied on the judgment in the case of Inder Mohan Goswami v.  State of Uttaranchal, (2007) 12 SCC 1, wherein it was held that,

“The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.”

Applying the said principle to the case at hand, the Court observed that

“The inherent power under Section 482 CrPC is not to be exercised by this Court generally to stifle the legitimate prosecution but here the prosecution has been launched, in concealment of material facts in the name of wrecking vengeance on the applicants”.

Perusing the statement of the complainant and witness recorded under Sections 200 and 202 Cr.P.C. respectively, in support of the complaint the Court came to the conclusion that

“no whisper regarding manner of committing forgery has been made which may give credence to the money claim. Perusal of the record further shows that as per annexures appended to the present application, the matter has been finally settled amicably. It is surprising that after the Petitioners had made it specific allegations regarding the respondent.”

The Court noticed that the complainant “very cleverly chose to brand a civil dispute as criminal offence”. It is obvious that the entire proceedings initiated at the instance of the complainant is in abuse of the process of the Court and the ends of justice requires that such proceedings which have been initiated with an ulterior motive should not be allowed to go unchecked as that would adversely affect the ends of Justice. When the dispute in question is discovered to be predominantly of civil nature then an attempt to make it criminal offence should be thwarted and discouraged. The payment made in full satisfaction of the transaction is to be ascertained on the face of evidence and documents which may be scrutinized by the civil court of the competent jurisdiction.

“The complainant instead of choosing proper forum for realization of the claimed outstanding amount, has chosen a different path which will not serve the ultimate purpose of full payment. The dispute in question is purely of civil nature and the proceedings in question are discovered to be misuse of the process of the Court and the same cannot be allowed to go on any further.”

Allowing the petition, the Court held that the entire proceeding was initiated with an ulterior motive and is an abuse of the process of the Court and the ends of Justice and therefore is liable to be quashed.

[M. Khuripou v. Pamei Dimpu, Crl. Petn. No. 24 of 2014, decided on 28-02-2020]


Appearance made before the Court by:

For the Petitioner/Accused (s) : Advocate N. Umakanta

For the Respondent : Advocate S. Abung

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., held that Judiciary is not the policy-making instrument on issues regarding conversion of marriage in terms of personal laws, though it may sit in Judgment on the validity, the enforceability of any piece of law made by a legislative body.

Petitioner’s counsel submitted that what has been demonstrated through the present petitions are merely tips of the iceberg and the larger canvass will disclose that there is a consorted effort in certain religious denominations to effectuate conversion under the guise of the institution of marriage.

Adding to the above, counsel stated that in the areas where there are no state legislation controlling or regulating religious conversion, the judiciary could consider stepping in to put regulatory measures in place.

Analysis and Decision

Judiciary—The policy-making instrument?

Bench opined that the pith and substance of all the issues relating to conversion of marriage and acceptability of marriage in terms of personal laws or municipal laws are matters on which the policy-making instrument would not be the judiciary.

Expressing further in view of the above, High Court stated that the Courts may sit in Judgment on the validity, enforceability and/or otherwise of any piece of law which may be made by any legislative body.

Lastly, while concluding the matter, Bench held that in light of the ACJM, Tehatta, Nadia’s report and the accused girls in relation to whom the petitions were filed having been recovered, no purpose would be served by keeping the petitions on board since they stand discharged upon recovery of the alleged victims. [Palash Sarkar v. State of W.B., 2021 SCC OnLine Cal 530, decided on 03-03-2021]

Op EdsOP. ED.

The criticism of judicial intervention on legislative design and policy prescription has been widely accepted for strengthening the institutional independence and accountability of the institution. But the recent outburst of the Chief Minister of Andhra Pradesh against Justice N.V. Ramana indicates a new low in the inter se relationship amongst the institutions in the country. The Chief Minister of Andhra Pradesh shot a letter to the Chief Justice alleging an attempt to destabilise the Government through judicial process by Justices of the High Court of Andhra Pradesh, allegedly aided by Justice N.V. Ramana.1

The Chief Minister has named some incumbent Judges and the Chief Justice of the High Court as directly or indirectly giving judgments and orders at the instigation of Justice Ramana.2 Notably, Justice N.V. Ramana will be taking over as the next Chief Justice being the second senior most Judge in the Supreme Court. Should the written complaint against the second senior most Judge iterates the genuine apprehension about the compromise on judicial process by a head of the Provincial Government or advances the political agenda to score against the foes in electoral politics?

The letter has not rolled the judicial process into action and not sought any relief from the Supreme Court. It has flagged the issue of inappropriateness of the judicial process by alleging favouritism for the leader of opposition of the State. Also, the nature of the allegation is such that it would damage the judiciary’s credibility as an institution. Further, it may become a referral point to encourage the political parties to play to the gallery by using judicial decisions to score a brownie point against opponents and reap the benefit in the election. The allegation levied in the letter can give armoury to the political parties to threaten the judicial dispensation of the country.

In light of this, the write-up examines the rationale of the constitutional regulation of the political parties. Judiciary must be insulated from unwarranted attacks from all the stakeholders of the society. For the same, the political parties have a critical role in securing the independence of judiciary. Though, the political parties are governed under a set of statutory laws on a range of issues such as the registration of political parties, election, disqualification of a member from the legislature, political symbols, etc. but such regulation cannot be a substitute of the constitutional regulation.3

Independence of judiciary and political parties

Judicial independence is a sine qua non for the thriving of democracy. Democratic values get nurtured with awaken citizenry and disciplined political parties. The Supreme Court has not only iterated the independence of the judiciary but also attributes participatory democracy as unalterable features of the Constitution.4 Enough measures are incorporated either under the constitutional scheme or statutory provisions to insulate the court from scandalous criticism and unsubstantiated attack from the individuals and the institutions. Article 505 mandates institutional independence, whereas functional independence is guaranteed under the Part V and Part VI (deal with Supreme Court and High Courts) of the Constitution.

The Supreme Court exercises enormous discretionary power in deciding hard cases when there is no constitutional text and history, and the pronouncements in past opinions do not speak clearly. In such cases, the judiciary’s independence weighs on the proprietary shown by the Judges in shaping the law without getting influenced by the considerations that are not warranted in law. If political parties continuously engage in building a false narrative against the judiciary, then the Judges, in their subconscious mind may pick the thread from the partisan attributes of politics.

On eliminating the external influences on the court, Thomas M. Keck remarked that: “What comes to the fore, rather, is the question of whether the justices are likely to act independently of the wishes of other power-holders. Whether we call their decisions legal or political, are the justices willing and able to challenge regime commitments?”6 For maintaining independence, Judges are insulated from the political process through a constitutional guarantee of their terms and conditions of the office. Everything that is needed to maintain independence of judiciary must be expected from the political parties. The Court must not succumb to the political pressure. The cherished goal of the judicial independence should not be hijacked on the trivial political considerations.

Constitutional regulation of political parties

Every player involved in good governance, directly or indirectly, must adhere to the constitutional idealism and nurture the cherished values incorporated therein. None should be allowed to bring in anarchy and absolutism. In this regard, a constitutional mandate plays a constructive role in limiting all the players’ power. There is no denial that the political parties make an enormous impact on the government’s functioning in the constitution’s parliamentary system. Political parties present electoral agenda before the people and implement it after occupying power through the ballot.

After the Second World War (WW II), political parties have progressively been regulated by the Constitutions of European democracies and received recognition as necessary institutional components of the democratic system.8 Political parties are acting as agents of citizens and acting as institutions that contribute to the balance of interests in society. Political parties enjoy enormous authority in a political system. Thus, through oversight and restrictions, there is a need to prevent any misuse of power by them. In his seminar work, Stone Sweet observed that new constitutionalism emphasises the role of judicial review and constitutional courts in assessing the constitutional legality of other legal norms and ensuring that political elites are acting upon democratic principles.9

Ideally, the constitutional regulation of political parties must be clearly spelled out in the text of the Constitution. But such absence from the text should not be a reason to leave the matter to be addressed by parliamentarians when the action of the political parties is thwarting the hard-earned values under the Constitution.

In recent times, there have been numerous instances of criticising the judiciary’s functioning or the conduct of an individual Judge by the political parties that are based on convenience than a valid criticism to strengthen the institution10. One such instance is the letter released by the Chief Minister of Andhra Pradesh, who himself faces severe charges of corruption, in the public domain which has dented the credibility of judiciary and shaken the faith of the people. The strength of judiciary lies on the confidence reposed by the people. The judiciary communicates its commitment towards constitutional goals through reasoned judgment. It does not speak through any other medium other than the written judgment. It is desirable to raise the issues of legal nature against the member of the judiciary so that adequate redressal within the legally tenable mechanism is achieved. If the nature of allegation against the Judges by the political parties does not conform to legally measurably standards then the parties must not be allowed to breach the constitutional proprietary which legitimises the action of all the institutions that shape the destiny of the country.

Political parties represent varied ideology which gets accepted or rejected during election and ensures representation of conflicting view on the floor of the house. Parliament offers a balance of power that guarantees accountability of the Government to the electorates who represents their view through political parties. Political parties must comply with constitutionally entrenched standards so that their activity could be reviewed by the court.

The determinative role played by the political parties in setting the agenda of the Government attracts the observation made by the Court in State (NCT of Delhi) v. Union of India11 (2018) wherein it was stated that: The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The responsibilities lie with every “institutions of the nation life” to work towards the accomplishment of these ideals. Political parties are integral part of “the nation life” and drive the agenda of the elected government.

Way forward

Though the letter has not sought any relief from the office of the Chief Justice of India, it may be seen as an opportunity to address the conduct of political parties concerning other institutions of the State. The letter’s content narrates the prospect of drawing ulterior benefit by the political party, which plays a role in the Judges’ appointment while being in power. The Constitution should not only expect the commitment from the State’s traditional institutions i.e., the legislature, the executive, and the judiciary, but also from other institutions, such as political parties and multinational corporations, which facilitates in accomplishing the goals enshrined therein. Judicial accountability has been a matter of legal discourse, whereas the accountability of the political parties is evading the constitutional scrutiny since independence. The suggestion to constitutionally regulate the political parties will bring accountability and entrenchment in the State institutions. Such regulations will set the tenor of the judiciary’s criticism on unfounded/unsubstantiated ground by the political parties. As the Attorney General has correctly turned down the request to initiate a contempt petition against the Chief Minister, the letter should be seen as an attempt to compromise Judges’ individual independence and not merely an issue between two individuals holding higher constitutional offices.

To conclude, I would iterate the apprehension raised by Mr B.G. Kher, a member from Bombay in the Constituent Assembly, on spoilsport played by the political parties in achieving the constitutional goals after attaining independence. While congratulating the members of the Assembly to accomplish the task of framing the Constitution in a short span time for such a diversified country, he aptly remarked that:

In our anxiety to achieve our dreams of equality, of liberty and fraternity and social justice it us not lose sight of the fact that even the attainment of these great things is possible if we do not collapse in the beginning of our new life and the whole machine is not wrecked either through ignorance or through wickedness. There are political parties who are anxious to create a chaos in the country because they believe that in that way alone and through violence alone, they can achieve the fulfilment of their dreams.12

Let us ensure that the political parties do not disturb the progress made in the last seven decades in achieving the constitutional goals with the resolute support of the citizens of the country.


† Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, e-mail: uday@iitkgp.ac.in.

1 See Bhadra Sinha and Rishika Sadam, ‘‘Terrorising Judiciary, Bench-Hunting” — How Andhra CMs charges against SC Judge are being seen, 11-10-2020, available at <https://theprint.in/judiciary/terrorising-judiciary-bench-hunting-how-andhra-cms-charges-against-sc-judge-are-being-seen/521532/>.

2 Upendra Baxi, Andhra CM Letter to CJI Alleging Wrongdoing by HC is a first. SC must Settle Matter Expeditiously, 2-11-2020, available at <https://indianexpress.com/article/opinion/columns/andhra-pradesh-cm-cji-jagan-mohan-reddy-n-v-ramana-6912795/>.

3 In pursuant to the constitutional mandate, the Election Commission has notified the Election Symbols (Reservation and Allotment) Order, 1968 with an aim to regulate the matters related to the choice and allotment of the symbol. Political parties are registered and recognised as State or national parties under this Order. It aims to contain the unwarranted growth of the political parties as they play instrumental role in shaping the aspirations and channelise the support of the people. Notably, these regulations deal with the relationship between the political parties and electoral process. It fails to address the issues of internal democracy of a political party or accountability of its action before the writ court.

4 Dushyant Dave, The Unassailable Keywords for the Judiciary, 25-2-2020, available at <https://www.thehindu.com/opinion/lead/the-unassailable-keywords-for-the-judiciary/article30906480.ece>.

5 <http://www.scconline.com/DocumentLink/1bVtfM50>.

6 Thomas M. Keck, Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools, Law & Social Inquiry, Vol. 32, No. 2, 2007, pp. 511-544.

8 Gabriela Borz, Justifying the Constitutional Regulation of Political Parties: A Framework for Analysis, May 2016, available at <https://www.researchgate.net/publication/303444982_Justifying_the_constitutional_regulation_of_political_parties_A_framework_for_analysis>.

9 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe, Oxford University Press, Oxford (2000); ibid.

10 For instance, Justice Arun Mishra has praised the Prime Minister, Mr Narendra Modi, in an international judicial conference was criticised by media and the Supreme Court Bar Association. See, <https://www.thehindu.com/news/national/bar-association-dismayed-at-justice-arun-mishras-praise-of-pm-modi/article30922443.ece>; non-disclosure of the author of the judgment in Ayodhya case invited criticism on account of accountability and transparency in the judicial process, see, S.R. Sarkar, India’s Per Curiam, <https://www.epw.in/journal/2020/41/commentary/indias-first-curiam.html>.

11 (2018) 8 SCC 501 : 2018 SCC OnLine SC 661.

12 Constituent Assembly of India Debates (18-11-1949), available at <http://loksabhaph.nic.in/writereaddata/cadebatefiles/C18111949.html>.

Know thy Judge

“With human lives pausing due to the COVID-19 pandemic, viral photos show that nature is fighting back. With the flora returning and fauna thriving, it is evident that the pitiable state of global ecology is not a state of our geographical inheritance.

– Justice Surya Kant[1]


Justice Surya Kant was born on February 10, 1962 in Hisar (Haryana). He earned his LLB degree in 1984 from Maharishi Dayanand University, Rohtak. He began practicing in the Punjab and Haryana High Court in 1985 and designated as Senior Advocate in March, 2001. [2]

Justice Kant held the office of Advocate General, Haryana till his elevation as a permanent Judge to the Punjab and Haryana High Court on 09-01-2004. He become Chief Justice of Himachal Pradesh High Court on 03-10-2018 and then elevated as a Judge of the Supreme Court of India on 24-05-2019.[3]


Notable Judgments at Supreme Court


Shah Faesal v. Union of India, (2020) 4 SCC 1

In a writ petition filled under Article 32 of the Constitution of India pertaining to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a Full judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that

“Judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”

Read More


Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 3 SCC 52

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, while framing seven issues in the Sabrimala reference, opined that the same can be refered to a larger bench in its Review jurisdiction.

Read More


Ravi v. State of Maharashtra, (2019) 9 SCC 622

“A civic society has a `fundamental’ and `human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements.”

A 3-judge bench comprising of R. F. Nariman, Surya Kant* and R. Subhash Reddy JJ., following the judgment in the case of California v. Ramos, 463 U.S. 992 where it was observed that “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination” and upheld (2:1) the death penalty awarded to an accused for rape and murder of a two- year old girl.

The Court observed that the Sentencing Policy needs to strike a balance between (a) deterrent effect and (b) complete reformation for integration of the offender.

 “The Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12years without murder of the victim, `death penalty’ can also be imposed.”

The Court shedding the light on duty of the Court and expectation of the people of the country, observed that

“The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence.”

Read More…


Rajesh Dhiman v. State of H.P., (2020) 10 SCC 740

“If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account.”

A 3-judge bench comprising of NV Ramana, Surya Kant,* Hrishikesh Roy, JJ., analysing the issues (1) whether bias was caused by complainant also being the investigating officer, (2) whether alternate version has been established and what is the effect of lack of independent witnesses and (3) whether High Court erred in reversing acquittal in appeal, held that firstly, the mere fact that the investigating officer was also the complainant would not entitle an accused to acquittal and that it was necessary to demonstrate either actual bias or real likelihood of bias. Secondly, if alternate version has been established, the evidence given must only be so conclusive that all reasonable doubts are removed from the mind of an ordinary person and in the present case, the appellant failed to make out a case with alternate version. Moreover, it was held that non­-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Thirdly, the Court held that High Courts could reverse acquittals and award appropriate sentence, including where there are patent errors of law, grave miscarriage of justice, or perverse findings of fact.


Raveen Kumar v. State of H.P., 2020 SCC OnLine SC 869

“The Supreme Court in exercise of its powers under Article 136 ordinarily examines only whether the High Court has failed to correctly apply principles governing appeals against acquittal.”

A 3-judge bench comprising of NV Ramana, Surya Kant,* Hrishikesh Roy, JJ., relying on the judgment in the case of Hira Singh v. Union of India: 2020 SCC OnLine SC 382, held that for the purpose of sentencing and determining whether the threshold of ‘commercial quantity’ was met, the total quantity of the mixture, including the neutral substance is relevant.

The Court clarifying the moot point whether High Court can set aside a finding of acquittal, held that there was no bar on a High Court set aside a finding of acquittal by a lower court.

“There is no difference of power, scope, jurisdiction or limitation under the CrPC between appeals against judgments of conviction or of acquittal. An appellate court is free to reconsider questions of law as well as fact, and re appreciate the entirety of evidence on record. There is, nonetheless, a self-restraint on the exercise of such power, considering the interests of justice and the fundamental principle of presumption of innocence. In practice, appellate courts are reluctant to interfere with orders of acquittal, especially when two reasonable conclusions are possible on the same material.”

The Court also opined that courts should be cautious while relying on any evidence which the witness had not been confronted with despite an opportunity to do so.


Kirti v. Oriental Insurance Company Ltd., 2021 SCC OnLine SC 3

“…the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.”

While deciding a motor vehicle claim and taking account into gendered nature of housework, a 3-judge bench of NV Ramana,* SA Nazeer and Surya Kant,* JJ., has increased the total motor accident compensation of Rs 22 lakhs awarded by the Delhi High Court to Rs 33.20 lakhs and held that “any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience.”

[Conception that housemakers do not add economic value to the household is “a problematic idea”; Future prospect must be granted in case of motor accident of a non-earning victim: SC] Read More…

[Can Subsequent Death Of A Dependent Be A Reason For Reduction Of Motor Accident Compensation? Supreme Court Answers] Read More…


Nimay Sah v. State of Jharkhand, 2020 SCC OnLine SC 982

While acquitting, the appellant who was convicted under Section 498-A read with 34 IPC for the death of his brother’s wife, a division bench of NV Ramana* and Surya Kant, JJ., held that apart from the vague allegations there is no substantial proof to show beyond a reasonable doubt that the appellant was genuinely liable.

“…on consideration of the oral testimonies of the witnesses, the ingredients of Section 498-A IPC have not been proved against the appellant-accused by the prosecution at the standard of beyond reasonable doubt.”

Read More…


Rohtas v. State of Haryana, 2020 SCC OnLine SC 1014

“The duty of the prosecution is to seek not just conviction but to ensure that justice is done. The prosecution must put forth the best evidence collected in the investigation.”

While deciding the criminal appeals, a 3-judge bench of NV Ramana, Surya Kant* and Aniruddha Bose, JJ., held that usually the ‘common intention’ is indirectly inferred from conduct of the individuals and rarely through direct evidence and that the appellants are individually guilty for the offence of attempted murder, without the aid of Section 149 IPC because

The Court also explained the difference between Sections 34 and 149 of the IPC and held that

“Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.”

Read More…


Pravin Kumar v. Union of India, (2020) 9 SCC 471

“Judicial review is an evaluation of the decision ­making process and not the merits of the decision itself.”

While dismissing the appeal, a 3-judge bench of NV Ramana, SA Nazeer and Surya Kant,* JJ., held that the employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding.

The Court while analysing the issue whether strict rules of evidence can be applied to disciplinary proceedings, held that strict rules of evidence and procedure of a criminal trial are inapplicable to disciplinary proceedings. The Court also observed that though strict rules of evidence are inapplicable to disciplinary proceedings, but sometimes under certain circumstances it becomes necessary and enquiry officers put questions to witnesses in such proceedings in order to discover the truth

Discussing the scope of Judicial Review in service matters, the Court opined that

“Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.”

Read More…


Jitendra Singh v. Ministry of Environment, 2019 SCC OnLine SC 1510

“Protection of such village-commons is essential to safeguard the fundamental right guaranteed by Article 21 of our Constitution.”

A Division Bench of Arun Mishra and Surya Kant,* JJ., while deciding an appeal for forcible possession of a common, local village-pond by the respondent industrialists, held that ponds are public utilities meant for common use and that schemes which extinguish local water bodies albeit with alternatives are violative of Constitutional mandate provided under Article 21 of the Constitution of India therefore are liable to be struck down.

“Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.”


CBI v. Sakru Mahagu Binjewar, (2019) 20 SCC 102

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought to be done save in the rarest of rare case when the alternative option is unquestionably foreclosed.”

A 3-judge bench of of Arun Mishra, BR Gavai and Surya Kant,* JJ., dismissed an appeal filed by the CBI challenging commutation of death penalty by the High Court in a murder case.

Relying on Swamy Shraddananda v. State of Karnataka: (2008) 13 SCC 767, the Court held that Section 57 IPC does not in any way limit the punishment of imprisonment for life to a term of 20 years. Therefore, he upheld the commutation of a death penalty to 25-years ‘actual imprisonment’.


In Re: Contagion of COVID-19 Virus in Prisons, 2020 SCC OnLine SC 344

“Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

A 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ., noticing the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19), directed that the States/Union Territories to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.

Read More…


Bhagwan Singh v. State of Uttarakhand, 2020 SCC OnLine SC 336

“A gun licensed for self-protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents.”

Partly allowing the appeal, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., opined that celebratory firing of guns licensed for self protection needs to stop.

The Court held that

“appellants cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.”

Read More…


Closure of Mid-Day Meal Scheme, In re, (2020) 12 SCC 213

“While dealing with one crisis, the situation may not lead to creation of another crisis.”

Taking Sou Motu cognizance on non-availability of mid-day meals for children due to the closure of schools due to coronavirus spread, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., directed that the States to come out with a uniform policy with the measures preventing spread of COVID-19 and also ensuring that the schemes for providing nutritional food to the children and nursing and lactating mothers are not affected.

Read More…


Prahaladbhai Jagabhai Patel v. State of Gujarat, 2020 SCC OnLine SC 109

Relying on the judgment in the case of Babu Singh v. State of U.P: (1978) 1 SCC 579, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., in the interests of justice to directed to release the appellants on bail.

The Court observed that

“punitive harshness should be minimized and restorative devises to redeem the man, even through community service, meditative drill, etc. should be innovated.”

Read More…


In re: Assessment of the Criminal Justice System in response to Sexual Offences, 2019 SCC OnLine SC 1654

“The need for speedy trial of the cases relating to offence of rape has been emphasized again and again this Court.”

Taking Sou Motu cognizance on assessment of the criminal justice system in response to sexual offences, a 3-judge bench of SA Bobde, CJ., BR Gavai and Surya Kant, JJ., noted that while the Nirbhaya gang rape case of 2012 has shocked the conscience of the nation but “the Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.”

The Court has called for records and status reports from all the States on various aspects of the criminal justice system in cases of sexual offences and held that previous sexual experience and in effect habituation to sexual intercourse is now irrelevant for the purpose of medical examination.

“Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman.”

The Court further held that, Forensic examination and report play important role during investigation as well as trial for linking the culprit with crime. Similarly, Medical treatment and examination of victim also plays a very important role.

“The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape.”

“Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial.”

Read More…


Manoharan v. State, 2019 SCC OnLine SC 951

“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.

Read More…


Manoharan v. State, (2020) 5 SCC 782

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.

Read More…


Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 437

“There cannot be any hard and fast rule for balancing the aggravating and mitigating circumstances. Each case has to be decided on its own merits.”

A 3-judge bench comprising of R. F. Nariman, Surya Kant and R. Subhash Reddy* JJ., placing reliance on the case of Sushil Murmu v. State of Jharkhand: (2004) 2 SCC 338, opined that this case fulfils the test of rarest of rare cases as it involved gruesome murder for human sacrifice of 2 yr old boy.

Justice Reddy observed that

“Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation.”

The Court also placed emphasised on extra-judicial confession and opined that

“It is true that extrajudicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidences on record, such confession can be taken into consideration to prove the guilt of the accused.”


Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200

“As in all crimes, mens rea has to be established.”

Allowing a Criminal appeal, a 3-bench of NV Ramana, Surya Kant and Hrishikesh Roy,* JJ., overturned the conviction of the appellant under Section 306 of the Indian Penal Code 1860.

The Court observed that to make out the case of abetment under Section 107 IPC, the accused should instigate a person either by act of omission or commission but in the present case there is no direct evidence to show that cruelty was committed by the husband or the in-laws or particular hope or expectation of the deceased was frustrated by the husband or there was wilful neglect of the appellant which led to the suicidal death.

The Court reiterated the necessary ingredients as set out in SS Chheena v. Vijay Kumar Mahajan (2010) 12 SCC 190 and relied on Mangat Ram v. State of Haryana (2014) 12 SCC 595 and observed that

“To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous.”

The Court opined that there is no evidence of any overt act or omission on part of the appellant and the trial court and the High Court had erred in relying on conjecture and speculation in deciding the appellant’s guilt i.e. abetting the suicide of his wife.

Read More…


Karulal v. State of M.P., 2020 SCC OnLine SC 818

“The testimony of the related witness, if found to be truthful, can be the basis of conviction”

Dismissing a appeal, a 3-bench of NV Ramana, Surya Kant and Hrishikesh Roy,* JJ., upheld the conviction of the appellants under Section 148, 302 r/w 149 IPC.

The Court relied on the judgement in the case of Dalip Singh v. State of Punjab: AIR 1953 SC 364, Khurshid Ahmed v. State of J & K: (2018) 7 SCC 429 and Sushil v. State of U.P.: 1995 Supp (1) SCC 363 and  opined that

“…The testimony of the related witness, if found to be truthful, can be the basis of conviction (…) If the witnesses are otherwise trustworthy, past enmity by itself will not discredit any testimony. In fact the history of bad blood gives a clear motive for the crime. Therefore this aspect does not in our assessment, aid the defence in the present matter.”

The Court while discussing the about the witnesses not supported the prosecution case and turning hostile, stated that

“Some witness may not support the prosecution story for their own reasons and in such situation, it is necessary for the Court to determine whether the other available evidence comprehensively proves the charge.”


Notable Judgments at High Court


Kulwinder Singh v. State of Punjab, 2007 SCC OnLine P&H 792

“The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice.”

Over-ruling the majority view in the case of Dharambir v. State of Haryana: 2005 SCC OnLine P&H 190 and approving the minority view expressed by V.K. Bali, J., a 5-judge bench comprising of Vijender Jain,* C.J., P. Sathasivam, Rajive Bhalla, Surya Kant and Mahesh Grover, JJ., while deciding the issue “Whether the High Court has the power under Section 482 of the Cr.P.C. to quash the criminal proceedings or allow the compounding of the offences in the event of the parties entering into a compromise in the cases which have been specified as non-compoundable offences and in particular, in view of the provisions of Section 320 of the Cr.P.C.?”, held that the compromise is an essential condition for harmony in the society, it is the soul of justice and if the power provided under Section 482 CrPC is used to enhance such a compromise to reduces friction then it truly is “finest hour of justice”.

“The power under Section 482 of the CrPC cannot be a hostage to one class or category of cases. That would be a complete misconstruction of the intent of the Legislature, who placed its utmost faith in the inherent power of the High Court to break free the shackle of other provisions of the Code, to give effect to any order under it or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The wide amplitude of this provision of law cannot be diminished by any myopic interpretation and any straightjacket prescription.”


Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479

Justice Surya Kant* while deciding whether jail inmates have a right to have a conjugal life and procreation within the jail premises and whether such right comes under Article 21 of the Constitution of India, dismissed the petition on the ground that the present jail infrastructure does not permit conjugal visits in jail but the petitioner have sufficient condition to opt for parole.

Discussing the role of Court regarding protecting the rights of prison-inmates, the Court observed that

“the Judiciary as the principal executor and promoter of the rule of law has to have major stakes in respect of the conditions prevailing in the prisons. The duty of the Courts towards jail reforms has become heavier than before after the enforcement of our Constitution as Article 21 guarantees dignified life to one and all including the prison-inmates.”

The Court held that the right to procreation survives incarceration and the right to life and personal liberty under Article 21 of the Constitution of India grants inmates the right to have conjugal visits or avail of artificial insemination.

“The right to conjugal visits or procreation or for that matter the right to secure artificial insemination as a supplement, are also, thus, subject to all those reasonable restrictions including public order, moral and ethical issues and budgetary constraints which ought to be read into the enjoyment of such like fundamental right within our Constitutional framework.”

Read More…


Viresh Shandilya v. Union of India, 2004 SCC OnLine P&H 1054

In a PIL filed under Article 226 of the Constitution of India regarding handing over the investigation of the “Burail Jail Break Case” to the CBI, a Division Bench of Binod Kumar Roy, C.J. and Surya Kant,* J., declined to accept a blanket ban on these facilities as it would deprive not only the majority of inmates who are mere “under-trials” from the amenity of viewing TV but also will cause adverse effects upon the reformatory methods required to be adopted in the model jails even in relation to the ‘convicts’.

“In our view, the “under-trials” as well as the “prisoners” lodged in the Model Jail Burail too have a right to information and the television can play a crucial role in that regard and to bring them in the mainstream of the civilized society, it will be too hard and anti-thesis of international conventions if a complete ban on viewing of TV is imposed.”


Madan Lal v. State of H.P., 2018 SCC OnLine HP 1495

Examining the issue whether the petitioner, as an interim measure be allowed the basic amenities of water and electricity, a Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., reiterated that right to water and electricity supply is an integral part of right to life under Article 21 of the Constitution of India.

“Potable water or electricity are integral part of Right to Life within the meaning of Article 21 of the Constitution of India. These are basic necessities for human being and can well be termed as essentials of human rights.”

Read More…


Sharwan Kumar v. State of H.P, 2018 SCC OnLine HP 1695

Considering the petitioner’s concern regarding disposal of waste of the slaughtered birds or to ensure that it does not cause any nuisance to the adjoining area, a Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., directed the respondent authorities to ensure that the prescribed rules and conditions for setting up a slaughterhouse are meticulously complied with.

Read More…


Anil Bansal v. State of H.P., 2018 SCC OnLine HP 1617

In a PIL filed under Article 226 of the Constitution of India regarding non-availability of legal aid to inmates of the jail, a Division Bench of Surya Kant,* CJ. and Ajay Mohan Goel, J., directed the respondent authorities to provide legal aid with immediate effect to jail inmates.

Read More…


Subhash Chand v. State of Haryana, 2007 SCC OnLine P&H 627

A 3-judge bench comprising of Vijender Jain, C.J., Rajive Bhalla and Surya Kant,* JJ., held that the refusal to accept the highest bid cannot foreclose the right of the highest bidder to put the action of the competent authority to judicial scrutiny, however, in those cases heavy onus will lie on the petitioner to establish his allegations as the State action shall always be presumed to be in accordance with law.

“The highest bidder who had a legitimate expectation to acquire ownership of the property, unless his bid was found to be suffering from any legal infirmity, has an indefeasible right to knock at the doors of an appropriate forum including a Constitutional Court and to question the legality of the decision of the competent authority on grounds like it being contrary to the Statute or the rules or the Constitution.”

The Court also held that the State Government cannot refuse to confirm the highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons.


†Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

[1] Webinar on Environment & the Economy: Re-Imagining Key Concepts and Precepts – https://www.scconline.com/blog/post/2020/08/02/supreme-court-justice-surya-kant-speaks-on-can-nlu-shimla-webinar-on-environment-the-economy/

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

[3] https://www.scobserver.in/judges?id=surya-kant

Op EdsOP. ED.

Abstract

The reason for selecting these two legislations together for discussion is because of their importance in 21st century. These two[1] legislations are gaining importance in nowadays, though legislated nearly before more than one-and-half decades. The purpose of twin selection is also to bring to fore the mentality of Indians first to see that they could know the fetus and do away if it is a female child but if she is born, and after she goes to matrimonial home, the violence she may face is focused and to curb these tendencies these special legislations were enacted in the years 1994 and 2005.

The twin topics taken for study have to be researched in two different ways.  Critical as well as analytical deductions which would mean to be objective and reform would not be the main objective. Critical study expresses opinion and evaluation of the subject taken for study. The study would mean segment the structure of the work taken for study. The study would reveal the factual matrix and importance of the study and reaction to the legislative intent and drawbacks is on validity or purpose of study. The study does not involve fault finding in the legislation as is normal with critical studies. The study evaluates the purpose of the legislations and judicial precedents. The study revolves not only on analysis or noting or jotting the summary of the Act taken for study, but it focuses on careful evaluation of the legislations.

The article is also based on critical as well analytical research with descriptive and exploration of what is existing law. The article partakes study of the importance of the legislative intent and observation of the researcher and therefore, both these topics have to be looked into from different angles.

Role of Judiciary in Implementing the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

Introduction

The judiciary has great role to play in implementing Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 hereinafter referred as PNDT Act. The powers are widely given to the Judicial Magistrate as per Chapter 7 of the Act to see that the act is properly implemented and there is no violation. The Act has made the offence punishable and penalty to be imposed by courts concerned designated under the Act. The Supreme Court and High Courts have ensured that there is strict implementation of the Act and subsequent rules framed so as to bring to an end the social evil of female feticide and holding that provisions of the PNDT Act could not be diluted. In Federation of Obstetrics and Gynaecological Societies of India (FOGSI) v. Union of India[2], the High Court of Gujarat had dismissed the appeal of State against the order of single Judge who showed that the doctors concerned were unnecessarily harassed and their machines were impounded though no crime was committed. The division bench in Mehul Acharya v. Jayesh Kantilal Shah [3] upheld the order of the single Judge resealing of the sonography machine. The division bench upheld the order as there was no cogent evidence of breach of penal provisions. The courts have upheld the validity of 2012 rules framed under the Act. The legislative object was for regulating the use of pre-natal diagnostic techniques so as to detect the genetics and detect if there were any metabolic disorders and prevent the misuse of the techniques and punish the offender for which the judicial approach has to be to further the object of the Act. The main purpose of the Act and the interpretations placed by the courts is the main stay of this study. The amendment till date as interpreted by the courts is considered. The Act has been divided into 8 chapters which are critco-analytically discussed by the author. The rules under the Act were framed in 1996. The Act has to be amended time and again so as to meet the genuine methods adopted by people rather all the stakeholders. The amendment by adding ultrasound techniques and clinics has given rise to several litigations at all levels. Recently, there is serious debate about misuse due to relaxing or rather suspension of applicability of some rules framed under the Act during this pandemic. It would be relevant to mention that there were several days on which debate was going on in the parliament; the author does not wish to elaborate on the same as the theme is mainly focused on role of judiciary.

It is normally the function of the government to implement laws enacted by the legislature.  But when the government fails to do so, resort is taken to judiciary. The primary credit for implementation of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 goes to the judiciary. The PNDT Act was enacted by Parliament in 1994. However, it came into operation after 2 years, on 1-1-1996 and even after lapse of 5 years neither the Central nor the State Governments had taken any action for its implementation. Hence, the judiciary had to take upon itself the task of giving effect to the said Act. There are series of petitions filed either suo motu or being moved by NGOs in which the Supreme Court and the High Courts, have issued various directions and pronounced orders to the Central and the State Governments for creating public awareness and for effective implementation of this Act.[4]

Historical Background

There is abhorrent practice of sex determination and sex selection going on since long time. Immemorial patriarchal influence can be seen in all parts of India and in all spheres of life. In the 1991 census, there was a finding that ratio of girls was much less. Child sex ratio shows that fall in girl child were dangerous. There have been findings and studies, which show that even in 21st century, there was a strong preference for boys than that for the girl child.  The practice to determine sex of fetus due to advancement in techniques had forced the government to bring legislation so that female feticide could be stopped or regulated there was a need for a comprehensive legislation making gender-testing illegal in Indian States. The distortion is now possible due to use of selective techniques which would help the parents to get rid of unwanted daughters. Number of females per 1000 males in the State of Gujarat was alarming and getting less. During last twenty years, there was a fall of 21 girl child per 1000 male child. 1981 showed the female ratio was 962 whereas in 2001 it has decreased to 927. Because of these factors, the Central Government decided to legislate for curbing of the sex determination and sex selection techniques, which are pre-birth techniques. The Supreme Court was forced to give directions to the legislatures and that is why the Pre-conception and Pre-natal Diagnostic Techniques Act came to be amended in the year 2003. The said amendment came into force from 14-2-2003. The Act came in force after lot of deliberations. The law has been supported by several NGOs, census authorities and Government Officials and the media. The Act has been amended time and again so to circumvent the evils committed by use of latest technologies. It would be relevant to mention that there were several days on which debate was going on in the parliament, the author does not wish to elaborate on the same as the theme is mainly focused on role of judiciary. The debates are enumerated in Lok Sabha debates Tenth Series Eleventh Session.[5]

The bill was discussed as Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Bill.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) AND PC and PNDT Act

It is of significance that as early as 1979 the United Nations General Assembly which can be said to international treaty which has been ratified by more than hundred countries and came into force on 3-9-1981. It has several facets, the main being taking appropriate measures to eliminate discrimination against women. India has ratified the treaty on 9-7-1983. The principle of the treaty can be briefly stated to be obligation to protect obligation to respect and eliminate gender discrepancies. Assessment of situation is done by a committee.

Reasons for Declining Sex Ratio and Critical Analysis of Statistical Data of Sex Ratio

The reason for declining sex ratio is the petrified social attitude and the lack of sensitivity. Pre-natal diagnostic techniques can be used to detect a range of genetic abnormalities. The techniques have also been used to detect the sex of the fetus. The sex-determination tests have often been followed by abortion if the fetus has been detected to be female. In order to prohibit the misuse of pre-natal diagnostic techniques for determination of the sex of the fetus whilst permitting a regulated use of such techniques for the purpose of detection of specific genetic abnormalities or disorders the statute has employed the strategy of surveillance through registration.

Critical and Analytical Study of Working of Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act Legislation and Rules framed therein

The Supreme Court so as to ensure effective implementation of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 passed detailed orders in public interest litigation being Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India; referred as Cehat v. Union of India[6];  Furthering the direction issued by the Supreme Court on 4-5-2001, it held that the Central and State Government should issue advertisements to create awareness in the public against discrimination between male and female children. It also directed that the appropriate authorities responsible for implementing the Act have to publish annual reports, which are to be available to the public. In order to streamline the effective functioning of the PNDT Act, the Court issued directions for the functioning of the supervisory boards and also directed that the national monitoring of the inspection committee shall continue to function until the Act is effectively implemented.

The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 came into force in 2003. The reason for amending the 1994 Act, is captured by the substituted long title of the Act which now reads “An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purpose of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain genital malformations or sex-linked disorders and for the prevention of the misuse of sex-determination leading to female foeticide and for matters connected therewith or incidental thereto”. One of the important aspects of the amendment is to prevent tests for sex selection from being conducted by any specialist. Further, the Act now prohibits the sale of ultrasound machines to persons or institutions not registered under the Act. The amendment also permits pre-natal diagnostic techniques to be used for very narrowly defined purposes such as the case of a pregnant woman above the age of 35, or a pregnant woman who has undergone two or more spontaneous abortions or the exposure of the pregnant woman to potentially teratogenic agents or in the event of the pregnant woman or spouse having a family history of mental retardation or physical deformities. The amendment act sets up supervisory boards at the State and Union Territory level to monitor the implementation of the Act and to create public awareness against the practice of sex selection leading to female foeticide. Greater powers have been conferred on the enforcing agencies under the Act. For instance, advertising pre-conception and pre-natal determination of sex is prohibited and punishment enhanced. Under the Act and the Amendment made thereafter, the state authorities have been given powers of constituting the State Supervisory Board under Section 68. The Act came to be amended after the Supreme Court directed to appoint fully empowered authority and Advisory Committee and to publish the same to create public awareness against the pre-natal diagnostic techniques and the State authorities and the State Advisory Board has to be constituted and even appropriate authorities has to be appointed by the State under Section 17. Under Section 7, the Central Government will have to constitute Supervisory Boards. The functions of the Board as envisaged under Section 16 of the Act would be as follows:

  • to advise the Central Government on policy matters relating to use of pre-natal diagnostic techniques, sex-selection techniques and against their misuse;
  • to review and monitor implementation of the Act and rules made thereunder and recommend to the Central Government changes in the said Act and rules;
  • to create public awareness against the practice of pre-conception sex selection and pre-natal determination of sex of fetus leading to female foeticide;
  • to lay down code of conduct to be observed by persons working at genetic counseling centers, genetic laboratories and genetic clinics;
  • to oversee the performance of various bodies constituted under the Act and taken appropriate steps to ensure its proper and effective implementation;
  • any other functions as may be prescribed under the Act.

As would be seen powers are with the government to see that the appropriate authority as well as advisory committee would be appointed by a notification in the official gazette by the Central and the State Government having regard to the intensity of the problem of pre-natal sex determination leading to the female feticide. The officers will have to be above the rank of Joint Director and the eminent woman and the officer of the Law Department of the State. The Advisory Committee would be of legal experts, medical experts and an officer dealing with information and publicity and three eminent social workers.

The most important aspects are the powers of the appropriate authority, which are brought into force by way of amendment in the Act which are enumerated in Section 17-A of the Act.

The most litigated provisions are enumerated in Chapter 7 which deals with offences and penalties which read as follows:

S. 22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention.

S. 23. Offences and penalties.

 S. 24. Presumption in the case of conduct of pre-natal diagnostic techniques.

  1. 25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.

 S. 26. Offences by companies.

 S. 27 Offence to be cognizable, non-bailable and non-compoundable.  S.28 Cognizance of offences.

Under the rule-making power the government has time and again framed rules for better implementation of the Act.

The 2014 Rules are in this direction framed so as to train for six months before a person uses sonography machine which is knowledge and skill based.

It is important to note that under Section 3(1) of the Pre-natal Techniques (Regulation and Prevention of Misuse) Act, 1994 a genetic counseling center, genetic laboratory, and genetic clinic can undertake, associate or assist in conducting activities relating to pre-natal diagnostic techniques only if such organisation is registered under the PDTA. In order that the purpose of registration is not defeated, S.3(3) prohibits medical geneticists, gynecologist, pediatricians, registered medical practitioners or any other person from conducting pre-natal diagnostic techniques at any place other than a place registered under the Act. This has been challenged as tests are conducted in mobile clinics. Analytically speaking the legislative intent and object is prohibitory in nature namely it prohibits what can be said to be determination and then selecting and then disclosing so that fetus may be eliminated or thrive.  The clinics should keep proper records for a period of minimum two years if any litigation is there.

The Supreme Court in several and significant public interest litigations, namely, Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India; referred as (Cehat v. Union of India)[7] where several directions are given, namely, directing proper and effective implementation of the Act. The Supreme Court directed reviewing the working and implementing the rules framed under the Act directed creating public awareness for stopping the evil practice of sex selection in 2003, further directions were given as the court found there was no change in human mindset. The Court also took note of misuse of modern technology. and litigation by public spirited Sabu Mathew George v. Union of India[8] spanning from 2008 till 2017 December, where by directions are given to search engines to block such advertisement which are meant for diagnostic help of female fetus, way back on 19-9-2016, the Supreme Court directed the respondents to develop techniques so that there would be auto-blocking of such private advertisement. Critically analysing the said decision in opinion of this author there is no conflict in these orders with the decision in Shreya Singhal v. Union of India[9] where right of intermediary is discussed. The decision nowhere directs legitimate information to be blocked or auto-blocked. The nodal agencies directed to be appointed pursuant to 16-11-2016 order cannot be said to be against the rules under the IT Act, 2000 but are in addition as the agency has to only intimate the request to the search engine, the censorship is not violative of any fundamental right of individual. The term advertisement which is undefined is properly interpreted by the court and has come to the conclusion that search engines will have to adopt or adapt and develop such techniques which will filter such information, the safeguarding of freedom to expression is also addressed. A flaw in the decision is that it does not advert to the aspect of pre decisional hearing. It can be observed that the litigation started in 2008 and relates to an important development after the IT Act, 2000 came into force and development in cyber world. The litigation is for seeking ban on so-called advertisements which can be said to be impinging the provisions of the Act. The court issued several directions on 13-12-2017 while disposing the said petition reader may refer to Sabu Mathew George v. Union of India[10]. The court has not distinguished organic search results and advertisements in popular sense is argued by many who are for internet freedom and not concerned with social legal problem caused by such so called organic research advertisements (emphasis by author). The reader can scan through the full text in chronological order in SCC of the year concerned.

The Supreme Court in Voluntary Health Association of Punjab v. Union of India[11] considered the effective implementation of the Act and divided States into clusters so as to consider the suggestions of all stakeholders. The court directed that training be imparted to prosecution officials.

As discussed, the study in post-2010 has turned to what can be said to be mix blend of offences concerning modern technology and medical profession. The diagnostic tool to monitor pregnancy has been subject of disputes concerning ultrasound machines and for stopping indiscreet use of such gadgets as also guidelines for use of all such instruments and for tests to be conducted. The criminality of the act must be seen where there were no proof of earlier indulging in such act as at times there may be genuine reasons for a family to go for testing.

A reference to the Supreme Court’s decision in State of Orrisa v. Mamata Sahoo[12] where there was challenge to applicability of Section 28 of the Act on the ground that criminal proceedings were wrongly quashed by the High Court as it held that inspection was not by competent authority, the Supreme Court held that the District Magistrate was authorised and was competent to send his nominee. The criminal proceeding for breach of Section 282 of the Act have been restored, this decision shows the proactive rather purposing interpretation clause being employed by the court to see that the purpose of the Act was not defeated.

The higher courts of the country have paved way for seeing that the PNDT Act is implemented more vigorously and its punishment powers are enhanced. However, this has led to unrest in doctor community as there is also misuse of the powers vested a recent decision of the Chhattisgarh High Court and the Gujarat High Court show that where there is gross misuse of power, the courts have safeguarded the interest of doctors refer to Dr. Amritlal Rohledar v. State of Chhattisgarh [13] and that of the Gujarat High Court in Mehul Acharya (supra).

In Suo Motu v. State of Gujarat[14] the following questions came up for consideration:

“(i) Whether under the provisions of Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a court can take cognizance of an offence under the Act on a complaint made by any officer authorised in this behalf by the appropriate authority?

(ii) Whether the provisions of the proviso to sub-section (3) of Section 4 of the PNDT Act require that the complaint should contain specific allegations regarding the contravention of the provisions of Sections 5 and 6 of the Act?

(iii) Whether the burden lies on the authority to prove that there was contravention of the provisions of Section 5 or 6 of the PNDT Act?

(iv) Whether any deficiency of inaccuracy in filing Form F as required under the statutory provisions is merely a procedural lapse?”

Upon above analysis and appreciation of the scheme and provisions of the Act and Rules made thereunder, opinion on issues referred to the larger bench is as under:

“(i) Under the provisions of Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (the PNDT Act), a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in that behalf by the appropriate authority.

(ii) The proviso to sub-section (3) of Section 4 of the PNDT Act does not require that the complaint alleging inaccuracy or deficiency in maintaining record in the prescribed manner should also contain allegation of contravention of the provisions of Section 5 or 6 of the PNDT Act.

(iii) In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under sub-section (3) of Section 4 of the PNDT Act, the burden to prove that there was contravention of the provisions of Section 5 or 6 does not lie upon the prosecution.

(iv) Deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the Rules made under the PNDT Act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of Section 5 or 6 of the PNDT Act and has to be treated and tried accordingly. It does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of Section 5 or 6 of the Act and the Court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filling up the forms. For example, not maintaining the records of conducting ultra-sonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of Section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her.

(v) The judgment in Dr. Manish C. Dave v. State of Gujarat, 2007 SCC Online Guj 25: (2008) 1 GLH 475, stands overruled to the extent it is inconsistent with the above opinion. The references stand disposed accordingly.”

The medical fraternity has felt aggrieved as for trivial breach their licenses are canceled, they are subjected to face criminal prosecutions as there are no slabs fixed for trivial or deficiency in keeping records punishment for such must be commensurate with the fault or so-called offence.

The health ministry issued a Notification on 4-4-2020 which came for criticism by the group who opposes the said Notification. Later on, the government has come up with a reply that there is no suspension of application of the PC and PNDT Act but only due to certain pandemic situation the notification was issued to differ/suspend certain provisions. The government has not exempted from compliance to the provisions of the PC and PNDT Act. It was clarified that all records were mandatory. This shows that both the government and the Supreme Court have shown that there must be strict compliance of PNDT Act. Despite that we see that there are several issues which come up before the Supreme Court recently. Drishti has requested the government to revoke the order reckoning the PC and PNDT Acts softening.

AIDWA objected to the suspending of Rule 8, Rule 9 (8) and Rule 18-A(c)(6) of the Act which deal with the process or renewal registration of gynaetic and ultrasound clinics. It appears to the author that AIDWA has not understood the difficulties of the doctors who are serving the nation as warriors and they or on hyper technical stand which they have till date taken.

On March 7th, February 2020, the Deputy Chief Minister and Minister for Higher Education and Technology requested the radiologists to come out with a practical solution to the problem being faced by scanning centers which is placed by the Act. This shows that may be because of this, the April Notification was issued so as to see that doctors do not suffer due to hyper technicalities. The author feels that it is a welcome aspect. The attempt to curb female foeticide and the implementation of Act to some extent has cause difficulties to doctors. However, there are competing interests which are also required to be protected as there may be some unintended consequences and which is causing problems to the doctors as seen in Mehul Acharya (supra) of High Court of Gujarat.

The attitude and practices against female foeticide can be eradicated from the society by strict implementation of the legislation though in certain cases it would be necessary for the family to get themselves checked up which may be for the benefit of the family itself.

Recently, the Notification of 4-4-2020 was challenged by Sabu Mathew George but the Supreme Court refused to stay the said Notification as it was for limited purpose.

In June 2020 again the Centre has clarified that they have not suspended the PNDT Act. The author refrains from any comments as the matter is sub-judice before the Supreme Court.

The analysis of the decisions cited and the perspective on the PC and PNDT Act would go to show that pre-natal sex determination has been considered to be offensive and the Courts have given strict interpretation of the Act. The Act stand amended time and again so as to meet the challenges faced due to the new technologies coming into force. The PC and PNDT Act was also amended in 2017 and 2018. The Radiologists, just before the pandemic gave e-model for PNDT where forms can be filled online so as to eliminate clerical errors and cut short the harassment. These solutions will also have to be done as the doctors are facing what can be said to be a predicament as to whether to have a radiological machine or face the difficulties. Medical undergraduates are also now scared as the Act has been slightly stringent towards doctors. The Supreme Court recently has been strict with the implementation of PNDT Act and even the Cyber Act and directed the portals to not advertise what can be said to be in violation of PNDT Act. These orders were passed way back in the year 2017 which shows the commitment of the government and the Supreme Court to see that females get what is known as gender justice. The gender bias reading of the Supreme Court is alleged by the doctors but the same is not so. The provisions of Section 23 have been held to be intra vires and the purposing interpretation has been given by the Supreme Court recently. Though some doctors have made statements about not auto-blocking online expressions but these are not in good taste neither are the directions according to the author in any way in conflict with Shreya Singhal Case (Supra).

To buttress the above the readers may refer to the full text of the following decisions which will satisfy the reader that still there are thin margins which require courts attention to strike a balance between genuine need of gender check or rather pre-birth child growth. Refer Vinod Singh Chauhan v. State of U.P.[15], Guru Govekar v. Filomena F. Lobo[16] , CEHAT v. Union of India (supra),  Hemanta Rath v. Union of India[17], Voluntary Health Association of Punjab v. Union of India (supra), Vinod Soni v. Union of India[18],  Vijay Sharma v. Union of India[19], Malpani Infertility Clinic Pvt. Ltd. v. Appropriate Authority, Pndt Act[20], Dr. Varsha Gautam v. State of U.P.[21], Qualified Private Medical Practitioners and Hospitals Association v. State of Kerala[22], Chitra Agrawal v. State of Uttaranchal[23], Dr. Devendra Bohra v. State of Haryana[24], Dr. Preetinder Kaur v. The State of Punjab[25], Suo Moto v. State of Gujarat (supra), Suhasini Umesh Karanjakar v. Kolhapur Municipal Corp[26], Radiological & Imaging Association v. Union of India (supra), Dr. Kalpesh J. Patel v. State of Gujarat (supra).

Suggestions

As long as there is fascination for male child and phobia for female child and girl child is irrationally perceived as a burden, people will resort to any means for eliminating the female fetus while systematically selecting the male fetus. Social malaise of such a staggering magnitude cannot be remedied only through legislation and court cases. It is true that technology is aiding systematic elimination of girl child; still technology does not exist in a vacuum. Social evil inevitably influences its use. The PNDT Act and its strict implementation undoubtedly is a step in the right direction for preventing the killing of unborn girls. The grave crime of female fetus being done away also needs to be noticed in holistic perspective of gender injustice. Rabidly followed unequal treatment meted out to women, perpetration of violence, lack of education and denial of economic opportunities, total stifling of their voice even in such intimate and integral matter as raising their own family, displays firmly imbedded patriarchal mindset. Howsoever, multi-faceted evil though it is still having to be met by a sustained campaign on all fronts. There may be possible road-blocks and dead-ends. They have to be acknowledged and identified and addressed. Professional bodies like the Indian Medical Association (IMA) also must not remain a passive spectator to the brutality and greed of the members of medical profession in such acts and derogatory practices. Even in matters where doctors are not directly involved, in case if they have definite information, their vigilance in reporting such acts to competent authority certainly can help; for non-reporting would mean joining in the conspiracy of silence, if the PNDT Act has to be a transformative force, emphasis also has to be laid on sufficient education, lobbying, publicity and commitment to saving female fetuses; unborn daughters so that their Right to Life is recognised and asserted. What is ultimately needed is the development of innovative strategy of engaging with law as means of mobilization and resistance.

Conclusion

As can be seen the object and the purpose of the PNDT Act has been given what can be said to be a strict interpretation. The medical practitioner should not be penalised for clerical errors in record keeping have held to be not tenable. This in view of the author is too harsh as if it is a venial breach it can be placed under the terms of what can be said to be minor fault and suitable amendment as done in the NDPS Act for minor offences should be incorporated in the Act. The Supreme Court and the High Courts have interpreted the term “Appropriate Authority” so that hyper technical stand taken by the people are not permitted to defeat the legislative intent. The abortion norms and infanticide prohibition can be seen. The Rules are for the time being suspended due to the onslaught of Covid. The decisions taken for analysis would show that the Courts have been very strict in interpreting the provisions of the Act. The Supreme Court and the High Courts have also interpreted and upheld the provisions to be constitutionally valid. However, certain medical terminations have been permitted looking to the Medical Termination of Pregnancy Regulations, 2003. The Supreme Court has given direction to all the States and UTs for strict compliance of the decision and directions in Voluntary Health Association (Supra) and has come heavily on the High Courts which give contrary decisions. This happened recently while staying the directions of the Delhi High Court in Union of India v. Indian Radiological and Imagining Association[27]. The Supreme Court and the High Courts have given certain directions to search engines in Sabu Mathew George (Supra) and have directed the government to appoint nodal agencies and also held that the Rules of 2014 are neither ultra vires the Act nor do they suffer from arbitrariness just because it prescribes training for radiological purposes.

In the end, it can be seen that the medical and health law qua safeguarding the female fetus has brought about some changes but the medical fraternity requires to be protected at the same time that these venial offences and for that the author feels that right to run clinic, hospital and nursing homes with all these are regulations which are in tune with duties of doctors and medical ethics requires to be properly looked into as doctors owe constitutional duty to treat the have-nots but at the same time cannot run clinics so as to diagnose and do away with the fetus if it is found to be girl child. India does not permit euthanasia which indirectly the doctors may be conducting.


Judge, Allahabad High Court

[1] Article on Domestic Violence Act, refer here: https://www.scconline.com/blog/post/2021/01/29/reflection-on-domestic-violence-act-2005-and-role-of-judiciary-for-balancing-the-rights-of-women/

[2] (2019) 6 SCC 283.

[3] 2019 SCC Online Guj 4120

[4] Compilation and analysis of case-law on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection Act, 1984) by Dr. Shalini Phansalkar Joshi, Maharashtra Judicial Academy, Chapter I p. 1.

[5] Published, dated 26-7-1994 being Tenth Series Vol. XXXIII Eleventh Session

[6](2001) 5 SCC 577

[7] (2001) 5 SCC 577

[8] (2018) 3 SCC 229

[9] (2015) 5 SCC 1

[10] (2018) 3 SCC 229

[11] (2013) 4 SCC 1

[12] (2019) 7 SCC 486

[13] (2019) SCC Online Chh 137

[14] (2008) SCC OnLine Guj 294

[15] 2014 SCC OnLine All 7334

[16] (1988) 3 SCC 1

[17] 2008 SCC Online Ori 5

[18] 2005 SCC Online Bom 651

[19] 2007 SCC Online Bom 806

[20] 2004 SCC Online Bom 834

[21] 2011 SCC OnLine All 575

[22] 2006 SCC OnLine Ker 440

[23] 2005 SCC OnLine Utt 22

[24] 2010 SCC OnLine P&H 13131

[25]  2010 SCC Online P&H 2134

[26] 2011 SCC OnLine Bom 633

[27] (2018) 5 SCC 773.

Conference/Seminars/LecturesLaw School News

Mr. Justice G.S. Sandhawalia

Dharmashastra National Law University, Jabalpur (DNLU) in association with the Confederation of Alumni for National Law Universities Foundation (CAN Foundation), is all set to host an insightful Online Lecture with Mr. Justice G.S. Sandhawalia, Judge, Punjab & Haryana High Court, Mr. Ujjal Bhuyan, Judge, Bombay High Court as Keynote Speakers along with Mr. Vikramjit Banerjee, Additional Solicitor General & Senior Advocate, Supreme Court of India on the 7th of February, 2021, i.e., Sunday at 11:30 A.M. The Panelists shall be deliberating upon the topic of “Parliament & The Judiciary on Constitutional Amendments:  Shifting Paradigms”. The discussion assumes colossal significance in view of the recent cases of Supreme Court and High Courts on granting of bail in High Profile cases and reasoning of personal liberty as a Constitutional Guarantee.

 

Justice G S Sandhawalia was enrolled as an Advocate with the Bar Council of Punjab and Haryana, Chandigarh in August, 1989. Justice G S Sandhawalia has represented the Union Territory, Chandigarh Administration, Panjab University, Chandigarh, the Official Liquidator attached to the Punjab and Haryana High Court, the Punjab Financial Corporation, the Punjab State Cooperative Supply, Marketing Federation (MARKFED), and many more. Apart from this, they have handled a mixed bag of work pertaining to Criminal, Civil, Service, Land Acquisition and Constitutional law on the private side besides being on the panel of the aforesaid institutions. At present being he being the member of the Bar is a part of various important committees of the Punjab and Haryana High Court including the Mediation and Conciliation Committee, Hon’ble Recruitment and Promotion Committee (Superior Judicial Service) Court, RTI Committee and a few others. In their career till date Justice G S Sandhawalia has dealt with many important PILs, service petitions, contempt petitions, a few of the landmark steps out of which were regarding excessive noise pollution in the Union Territory of Chandigarh due to amplified music from marriage palaces and private farm houses, and regarding employment qualifications for appointment in State Public Service Commissions.

Justice Ujjal Bhuyan

Justice Ujjal Bhuyan presently serving as Judge at Bombay High Court, was born on the 2nd of August, 1964 in Guwahati, and did their schooling in Don Bosco High School, Guwahati. Continuing the legacy of their father, who served as the Advocate General of Assam, and was a Senior Advocate, Justice Ujjal Bhuyan obtained their LLB degree from Government Law College, Guwahati, and an LLM from Guwahati University, Guwahati. They enrolled with the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh in 1991. They started their career as a Junior Counsel in 1995, and subsequently were appointed as a Senior Standing Counsel of the Income Tax Department on 03-12-2008. Justice Ujjal Bhuyan was a Standing Counsel for Income Tax Department for a long period of 16 years. They also served as Special Counsel for the Forest Department, Government of Arunachal Pradesh from December 2005 to April 2009. They were designated as a Senior Advocate in 2010 by the Guwahati High Court, and were appointed as the Additional Advocate General of Assam in 2011. They were appointed as an Additional Judge of the Guwahati High Court on October 17, 2011, and was appointed as a Permanent Judge on March 20, 2013. Apart from this, Justice Ujjal Bhuyan was the Executive Chairman of Mizoram State Legal Service Authority, and closely connected with Judicial Academy, Assam and NLU, Guwahati. Serving from 2013 to 2019 as a Judge in the Guwahati High Court, they were transferred to Bombay High Court by a resolution of the Supreme Court of India, passed on August 28, 2019.

Mr. Vikramjit Banerjee

Mr. Vikramjit Banerjee is a Senior Advocate in the Supreme Court of India, New Delhi, and an incumbent Additional Solicitor General of the Government of India. They graduated from National Law School of India University, Bengaluru in 1997, and completed their LLM from the University of Leicester in 2000. They were also a faculty in West Bengal National University of Judicial Science. Vikramjit Banerjee had co-edited a book in 2008 titled The Truth About Teesta Setalvad. Vikramjit Banerjee was appointed as the Advocate General of Nagaland in 2015, and was designated as a Senior Advocate by the Guwahati High Court in 2016. Vikramjit Banerjee was appointed as an Additional Solicitor General in 2018, and was the youngest in the batch of three new ASGs who were appointed. They are also the first NLSIU graduate to hold this Constitutional Law Office.

The Panel will undertake a thorough discussion on the following themes: – 

  • Discussing the emergence of the Powers to amend the Constitution, and Constituent Assembly Debates.
  • Analysis of the Powers to amend the Constitutions in Foreign Countries and comparing them with the position in India.
  • Examination of the Major Constitutional Amendments.
  • Critical Analysis of Powers and Limitations of the Parliament to Amend the Constitution.
  • Discussing the Basic Structure Doctrine in India and other countries.
  • Discussing important Judgments of the Supreme Court about Constitutional Amendments.
  • Discussing Judicial Independence in Appointments, the 99th Constitutional Amendment, and the Basic Structure.

The Session shall be moderated by Mr. Abhay Anturkar, Advocate, Supreme Court of India & Mr. Chritarth Palli, Advocate, Supreme Court of India.

Prof. (Dr.) Balraj Chauhan

The Welcome address shall be delivered by Prof. (Dr.) Balraj Chauhan, Vice-Chancellor, DNLU, Jabalpur. Before joining Dharmashastra National Law University, Prof. Balraj has served as Director, Amity Law School, Lucknow, Vice-Chancellor of Dr. Ram Manohar Lohiya National Law University, Lucknow, and National Law Institute University, Bhopal.  They have also been a member of U.P. State Law Commission, Member of UP State Legal Services Authority and Executive Member, Shastri Indo-Canadian Institute New Delhi. Prof. Balraj’s special interest is in the field of Criminal Law, Criminology and Clinical Legal Education.

CAN Foundation is endeavoured to create awareness in society and provide assistance to the financially handicapped students of the country by furnishing scholarly stipends to them. In its pursuit, it is continuously encouraged & supported by its Media Partner, Bar & Bench, which has raised the level of legal discourse in the country and its Knowledge Partner, SCC-EBC Group, a highly trusted and informative platform for legal awareness and discussion.

The Interactive Session is certainly going to be an enriching learning experience for all the attendees from across the country, given the learned and the erudite Panel. For attending the Session, you can register by visiting the official website of CAN Foundation-www.canfoundation.in. 

Op EdsOP. ED.

Reflection on Domestic Violence Act and Role of Judiciary

Introduction

I would like to begin the article with a quote of Justice S Rajendra Babu, the then Chief Justice of India, who in his speech on Gender Justice – Indian Perspective[1] said as follows:

“Sita was not born, but found, and after marriage, exile, agnipariksha and abandonment was her lot. Yet there is not a single temple to Sita, and Rama is adored as the ideal man — Maryada Purushottama — Adarsha Purusha. Women get nothing being Sitas. Let us look for Durga and Kali in them.”

International Documents, i.e. Covenants, Chargers, Declarations and Treaty, etc.

The United Nations developed its policy on domestic violence in 1981. Pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in the year 1976, the Convention on the Elimination of All Forms of Discrimination Against Women came into force. However, this convention did not in unequivocal terms include violence against women or domestic violence, and therefore, in 1992, a Committee on the Elimination of Discrimination Against Women was formed. United Nations’ document A/47/38 was promulgated in 1992. In 1995, at the Fourth World Conference on women in Beijing, China, the topic of domestic violence and responsibility for domestic violence was taken into account. In 2000, a special session on women was conveyed by the United Nations known as Beijing +5 which dealt with the topic of domestic violence as the focal point and it was given priority. There was a report of Radhika Coomaraswamy, belonging to Sri Lanka, who was appointed as Special Rapporteur on violence against women and her report addressed domestic violence at length and model legislation of domestic violence was included. Thus, international and regional human rights conferences directed the States to take reasonable steps to prevent violence on women and to ensure that the victim was given adequate compensation, notable conferences are mentioned herein below:

  1. Human Rights and Women – Universal Declaration of Human Rights.
  2. The United Nations Convention on the Elimination of Discrimination against Women, 1967.
  3. The United Nations Convention of the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) – Vienna Declaration.
  4. Universal Declaration of Human Rights, 1948.
  5. United Nations World Conference on Human Rights, 1993 (Vienna Declaration and Programme of Action)
  6. Convention on the Elimination of All Forms of Discrimination against Women, 1979.
  7. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

First World Conference on Women, Mexico, 1975

As early as the United Nations re-affirmed the faith in fundamental human rights, it claimed about equality, dignity and rights of women in Article 6 of Declaration of elimination of discrimination against women in 1976, advocating the principle of non-discrimination. Article 6 directs the state parties to make provisions for civil and criminal law to combat all forms of exploitation of women. Later on, immediately after six years of Convention, punishment of crime on the basis of discrimination against women was issued in the 1973 Charter. Thereafter in 1979, Convention against Elimination of All Kinds of Discrimination against Women was passed by the United Nations. Domestic violence is pre-dominating part of the human rights and is violative of human rights, and therefore, all the National Commissions for Women Act of 1996 emphasised on the protection of civil rights of women and the United Nations Charters Convention also made basis of legislative law enacted in the year 2005.

Constitution of India and Women Empowerment

In view of the rights guaranteed under Article 14, 15 and 21 of the Constitution of India to provide for a remedy under the civil law, which is intended to protect the women from being victim of domestic violence and to prevent the occurrence of domestic violence in the society, the Constitution placed a great insight and farsightedness in incorporating various provisions for safeguarding the women. The Constitution in Article 15(3) lends helping hands to the women and children by incorporating that nothing would prevent the State from legislating any provisions for women and children. This shows that Article 14 prohibits discrimination of any kind but Article 15(3) encourages the affirmative discrimination in favour of women. The constitutional philosophy has inspired bringing special legislation intended to eradicate the evil prevailing in the society. The Constitution has been interpreted by the Supreme Court of India which can be said to be bold innovation in administrative constitutional cannons in favour of the women. In a recent decision in Mangat Mal v. Punni Devi[2], the Supreme Court has taken within its compass the provisions of residence along with the maintenance. The recent decision of the Supreme Court was in State of Rajasthan v. Hat Singh[3], which prohibited “Sati”.

Reports of Law Commission of India on Violence against Women

Since 1986, the Law Commission of India has been of the view of legislating the law on domestic violence. It has suggested piecemeal amendments in different legislations like Hindu Marriage Act, 1955, Evidence Act, amendment in Code of Civil Procedure and Criminal Procedure Code and also the latest being recommending the law for Protection of Women from Domestic Violence Act, 2005.

Working of the Act

This topic would cover the provisions of the statute which is sought to be discussed namely, the definition of term “Domestic Violence”, incorporated in Section 3 of the Protection of Women from Domestic Violence Act, 2005  takes within its sweep mental or physical harassment or injury or even endangers the life of the aggrieved person and also the sexual abuse, verbal and emotional abuse and even economic abuse to the injured or anyone else related to her. It even takes within its sweep the demand for any dowry or any other property or valuable security. The definition also includes threatening by any conduct mentioned in clause (a) or (b) of the Act. The legislative intention was to stop male dominance.

Chapter 4 is the most important chapter of the Act. Section 12 empowers the Magistrate and other courts adjudicating the matter. Beginning with the application to the Magistrate, counseling as per Section 14 and the welfare expert can also be taken into confidence. The most important Section is S.17 which provides for right to residence in shared household, and therefore, the Magistrate and the court would have wide powers to pass interim orders to protect the women. However, all these are discretionary powers given to the judicial officers, and therefore, the role of Magistrate becomes very much important and the judiciary is made the custodian of the protection of the rights of the women. Section 23 is also very important as it relates to interim orders, which can be passed by the judicial officers. All these reliefs can also be collaterally agitated before the court where either other proceedings are pending and there would be in addition to and as narrated above, the rights, which are given to a destitute lady would take within its sweep, residence orders, compensation orders and other custodial orders, which would be for the benefit and the protection of the disturbed lady.

Section 29 prescribes appeals against the orders could be made within 30 days from the date of the order of the magistrate and served to the other party.

Section 31 prescribes penalty for breach of order by the respondent. Therefore, execution becomes very easy, non-cumbersome and the most important factor is that the punishment prescribed would be treated to be an offence as per Section 31 and would be non-bailable, giving sole powers to the aggrieved persons.

Critical and analytical view overview of the Act

The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora[4] has held that:

“(i) A cursory reading of the statement of objects and reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence; (ii) It is not difficult to conceive of a non-adult 16 or 17- year-old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person; (v) The impugned judgment of the Bombay High Court was set aside and it was declared that the words ‘adult male’ in Section 2(q) of the Act, 2005 will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stood deleted.”

In Krishna Bhattacharjee v. Sarathi Choudhury[5], the Supreme Court has held that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the term “economic abuse” as the provision would show, has many facets.

In Deoki Panjhiyara v. Shashi Bhushan Narayan Azad[6], the Supreme Court has interpreted and defined the object of the Protection of Women from Domestic Violence Act, 2005, Section 12 vis-a-vis Hindu Marriage Act, 1955, Section 11. In this case, on application, interim maintenance was granted by Trial Court, affirmed by Sessions Judge and against which, writ was filed by husband before High Court and also revision application by husband that the marriage between the appellant and the respondent was null and void. The High Court held that the appellant was not the legally wedded wife of the respondent and she was not entitled to maintenance granted by the learned lower courts. The Supreme Court on appeal by the appellant-wife held that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court, it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all the benefits and protection available under the Domestic Violence Act, 2005 and held that the interference made by the High Court with the grant of maintenance in favour of the appellant was not justified and, hence, the Supreme Court had set aside the order of High Court.

The Supreme Court also held that if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra, the respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a “relationship in the nature of marriage” would be justified. In the absence of any valid decree of nullity or the necessary declaration, the Court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance.

This view is too harsh on the husband where courts have held the women not to be legally wedded wife. The decision of the Supreme Court requires rethinking.

The Supreme Court in S.R. Batra v. Taruna Batra[7] has held that a wife can seek alternative accommodation for the said accommodation can be sought from the husband but not the relative of the husband. The said decision has been reconsidered and a different view has been there by the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja[8], wherein the view has been that the wife can claim even from the other members of the family and directed the Trial Court rather the Family Court to proceed further and decide the same. The reason for discussing this judgment goes to show that the Court once again interpreted the statutory scheme of the protection of women from Domestic Violence Act, 2005. The Court has felt that there is rampant violence to the women and the remedies were limited before 2005. The Supreme Court in the latest decision of Satish Chander Ahuja case[9] has enlarged the scope of matrimonial home. The decree of the Trial Court was set aside by the High Court and the order was remanded for fresh adjudication. The author has been very critical about remand of the matters but this was a case which was arisen from interim relief. A reference to the judgment in Neelam Gupta v. Mahipal Sharan Gupta[10], goes to show that in the matrimonial matters, the Court has held that women would be entitled to a shared residence in lieu thereof husband should provide her with a suitably reasonable accommodation. The protection order was granted but disposed of way back on 17-6-2008 by Mahila Court. The Supreme Court disposed of the appeal with certain directions as the matter was mediated and the parties have decided to part away by filing a petition under Section 13-B of the Hindu Marriage Act. This shows that mediation is an alternative remedy applicable to such litigation also. The decision of the Supreme Court in Aishwarya Atul Pusalkar v. Maharashtra Housing & Area Development Authority[11] goes to show that the Court has interpreted the term “shared household” and by alienating any immovable assets would defeat right of a victim lady which would be described as domestic violence. The Court again reiterated and directed the lower courts to take proper decision as the lady was permitted to retain the possession of the residential accommodation and pay the rent and the Housing Board was directed not to disturb her residence.

It goes without saying that in Shyamlal Devda v. Parimala[12], the Court has once again reiterated that provisions of Section 482 of CrPC can be invoked for quashing the complaints under the Domestic Violence Act. The person aggrieved has been explained and the maintainability of the complaint makes it clear that domestic violence complaint can be lodged or filed in the Court where the person aggrieved permanently or temporarily resides or carries out his business or is employed. Objections, so as to challenge the jurisdiction of the Metropolitan Court of Bangalore, were turned down against the husband and parents-in-law.

Recently in P. Rajkumar v. Yoga[13], the overlapping of Section 125 Cr.P.C with Domestic Violence has been considered which has been reiterated by the Supreme Court in Lalita Toppo v. State of Jharkhand[14]. The Supreme Court has laid down the guidelines for determining compensation in matrimonial cases in recent decision in Amarendu Jyoti v. State of Chhattisgarh[15]. Thus, it goes to show that the courts have been zealous in interpreting the Act so that the object is satisfied.

Also refer to Saraswathy v. Babu[16], Indra Sarma v. V.K.V. Sarma[17], Rupali Devi v. State of U.P.[18], Ajay Kumar v. Lata[19], Sangita Saha v. Abhijit Saha[20], Reema Aggarwal v. Anupam[21], and Madhu Kishwar v. State of Bihar[22] and Hira Lal v. State (Govt. of NCT) Delhi[23]; these judgments dealt with Dowry Prohibition Act, 1986. This was the time when the Supreme Court proved that the law was inadequate.

All these decisions are related to domestic violence. As mentioned earlier, judgment of the  Supreme Court holding that the wife would have the right of maintenance which would partake even it the right to residential home.

Any other related points

This law works in addition to other laws and does not make the existing pre-2005 legal regime redundant. Instead, it recognises the need for relief to be granted as a basic minimum to provide women with a violence-free space from which they can negotiate their future from a position of equality. Hence, the nature of relief is emergency and temporary in nature; the permanent solution still remains in the realm of personal laws under which a woman would have to decide on whether or not to continue the relationship. In doing so, the PWDVA makes a first but significant step towards achieving the goal of equality.

The next question to be answered was how a woman would access these reliefs. Going to a court is a traumatic process for most people, women being no exception. In addition, there are other constraints such as stigma attached to litigating against one’s own family, the lack of wherewithal to access the courts and difficulties in getting orders enforce. It was essential to address these concerns by providing mechanisms within the law. The office of the “Protection Officer” was therefore instituted under the law. The protection officer has a twofold duty; first, to assist the woman in accessing the court and other support services (such as legal aid, medical facilities, shelter homes, etc.) and second, to assist the court during the course of the proceedings and in the enforcement of orders.

Suggestions

There appears to be wide divergence in the kind of orders that are being granted by magistrates across the States. One commonality being that the major users of the law are married women and the most commonly granted orders are for maintenance. This is perhaps due to the fact that magistrates are accustomed to granting maintenance orders under Section 125 of the Criminal Procedure Code, 1973. It is, however, heartening to note that in a number of cases, widows and aged mothers, who hereinbefore were not covered, have been able to obtain favourable orders, particularly residence orders. There are also diverse trends in the nature of the orders being claimed by women, for instance in Rajasthan, where women have mostly claimed orders for restoration into the shared household whereas in Kerala, many women have sought orders directing the men to stay away. It is, however too early to ascribe reasons behind such divergent practices.

The purpose of the Act is to give protection to the aggrieved woman from domestic violence keeping in view the intention of the legislature in passing the Act that minor procedural discrepancies do not disentitle the complainant from seeking the relief.

Conclusion

The genesis of the legislation along with the other legislations on the subject was, as can be seen necessitated by the harassment which was faced by women. At times, the maintenance would not be enough. The provision of matrimonial homes had not been discussed. The main purpose of this legislation is equality before law and equal protection of laws regardless of religion, caste, community and faith. Difficulties which arise at times with complaints under Domestic Violence Act are also felt and if the entire family is sent to jail without there being pre conciliations, the role of the Judge becomes very important so as to see that the family does not suffer what can be said to be irretrievable breakdown of marriage. The Act has been strictly interpreted recently in the judgments which are analysed by the undersigned. The provisions of Indian Evidence Act had been made applicable but the overriding effect is there, so as to give primacy to the Act. There is radical approach which is required to be taken by the family courts as they are under an obligation to see that matrimonial rights and obligations of the women are fulfilled. The jurisdictional aspect also requires to be seen as litigation under the Domestic Violence Act goes to the Magisterial Court whereas for other maintenance, divorce, restitution of conjugal rights, the parties have to go to the Civil Court or the Family Court as the case may be. This also requires to be looked into by the legislation.


* Judge, Allahabad High Court   

[1] (2002) 5 SCC J-1.

[2] (1995) 6 SCC 88

[3] (2003) 2 SCC 152

[4] (2016) 10 SCC 165

[5] (2016) 2 SCC 705

[6] (2013) 2 SCC 137

[7] (2007) 3 SCC 169

[8] 2020 SCC OnLine SC 841

[9] 2020 SCC OnLine SC 841

[10] 2020 SCC OnLine SC 422

[11] 2020 SCC OnLine SC 408

[12] (2020) 3 SCC 14

[13] 2019 SCC OnLine SC 1825

[14] (2019) 13 SCC 796

[15] (2014) 12 SCC 362

[16] (2014) 3 SCC 712

[17] (2013) 15 SCC 755

[18] (2019) 5 SCC 384

[19] (2019) 15 SCC 352

[20] (2019) 18 SCC 81 : 2019 SCC OnLine SC 559

[21] (2004) 3 SCC 199

[22] (1996) 5 SCC 125

[23] (2003) 8 SCC 80

Op EdsOP. ED.

I. Introduction

The current question that we are about to delve into is undoubtedly of much constitutional significance as it has the potential to render the anti-defection law dead letter. But apart from it, the workability of the law, as it exists today, is also of much significance for the political parties, who during their governance ordinarily enjoy the privilege of having the Speaker from their group. In this way, the ruling party hangs the Constitution at the peril of destruction by controlling and strangulating the independence of the Speaker’s position in the House or an Assembly, as the case may be.

One may easily reckon that the author is talking about a situation when disqualification petition(s) is filed against the member(s) of the ruling party, in such instances, it is not unusual anymore to witness that the Speaker of the House or an Assembly turns a deaf ear and comfortably pretends to forget about the obligation he is required to discharge under Para 6 of the anti-defection law (power of the Speaker to adjudicate disputes). One may not require much brainstorming for speculating reasons for this omission. The Speaker might succumb to the pressure from the distinguished party leaders or act likewise in an attempt to save his ruling party on the floor of the House or the Assembly, or perhaps, to maintain cordial relationship with the accused member(s). This scenario is expected to be witnessed frequently when the House or Assembly is nearing dissolution.

Although, Para 7 of the Tenth Schedule (bar of jurisdiction of courts) was struck down by the Supreme Court long ago, it can be said without hesitation that the Speaker still enjoys finality and unlimited powers under the Tenth Schedule. One may counter the aforesaid statement by arguing that it cannot be the case because decision of the Speaker under the Schedule can always be assailed for judicial scrutiny under Article 226 of the Constitution. This bone of contention, though deserves some acceptance, is devoid of pragmatism and can merely be viewed hypothetically. What needs to be remembered hitherto is that the law allows “judicial review” of the matter and not simpliciter adjudication upon knocking the doors of the Court without any order of the Speaker as to disqualification. In fact, such an argument loses its flair with an added menace of no timeline set out for the Speaker to adjudicate the petitions before him, which effectively leaves the workability of the anti-defection law in accordance with the whims and fancies of the Speaker.

This directly takes us to a question of law that can be firmly described as whether the High Court can itself adjudicate and finally dispose of the disqualification petition filed before the Speaker, in absence of any decision taken by the Speaker on those petitions. To put it differently whether the High Court while exercising writ jurisdiction is competent enough to disqualify the accused members by usurping and assuming the powers of the Speaker.

II. Legal conundrum faced by the judiciary

Just like every coin has two sides, the constitutional minds too share difference of opinion. The first batch of judgments preach that on careful reading of the judicial precedents available on defection law, it has been made clear by the Supreme Court in what can be called as the most authoritative precedent that, although the High Court does not sit in appeal against the order of the Speaker but inheres a limited judicial review over the decision of the Speaker in such cases.[1] Here, the matter involves no such decision made by the Speaker and hence, there arises no question for judicial “review”. To sail further on this view, it is imperative to quote para 110 of the case Kihoto Hollohan v. Zachillhu, which runs as follows:

110. In view of the limited scope of judicial review that is available on account of the finality clause in Para 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.[2]

It can be easily inferred that not only the final adjudication but even quia timet actions are not permitted to be exercised by the courts. The term quia timet literally means “because he fears or apprehends”.[3] It is synonymous to pre-emptive or precautionary action[4] and, it would not be the correct approach because there is no decision made by the designated authority within the Schedule, not even interlocutory. The latter half of the quoted passage simply provides for an exception to the said pre-emptive relief only in case of the Speaker disqualifying members as an interim measure and not the other way around. If the reverse is allowed to prevail, whereby, the High Court starts granting interim reliefs without there being an order passed by the Speaker, then it would get hit by the well-settled principle of our Constitution, namely, separation of powers and independence of each institution of the Government. This would tantamount to bypassing of powers granted by the Constitution itself and would perhaps add to the accusation of judicial overreach, which the Indian courts are facing today. The seeds of this particular thought matured in Haryana Vidhan Sabha v. Kuldeep Bishnoi[5] (hereinafter referred to as “Haryana Assembly case”), the elaborate analysis of which will be done later in this article.

In addition to the above argument, this school of thought says that there could be essential factual questions required to be determined by way of oral evidences, which, the High Courts are not competent to decide while exercising its powers under Article 226 of the Constitution[6]. Although, this bone of contention seems thought-provoking but is merely procedural in nature, and thus warrants no detailed discussion.

Therefore, according to this view the courts can neither finally decide the petitions by assuming itself as the competent authority under the Schedule nor can pass an interim order in the nature of disqualifying the accused member(s) till the time their petitions are considered by the Speaker.

 On the contrary, the other group opines that the Speaker is duty-bound to decide the disqualification petitions within a reasonable time despite the fact that there are no set timelines provided in the Tenth Schedule or the Rules thereof. The expression “reasonable time” must be construed as any time much before the completion of lifespan of the House or the Assembly. This category advocates that to protect the ultimate democratic and constitutional ethos, it is necessary for the judiciary to treat the jurisdiction of the Speaker as mere “alternate forum” in such cases. The only judicial opinion to substantiate this view is the prima facie observation made by the High Court of Manipur to the preliminary objection as to the jurisdiction of High Court[7] (hereinafter referred to as “the High Court order”), although very recently it has been partly reversed by the Supreme Court in Keisham Meghachandra Singh v.  Manipur Legislative Assembly,[8] (hereinafter referred to as “the Supreme Court judgment”) and rightly so. However, this pronouncement of the Supreme Court is also not free from contentious issues for reasons that it took a sharp turn by relying upon a Constitutional Bench judgment titled Rajendra Singh Rana v. Swami Prasad Maurya,[9] (hereinafter referred as “the Constitutional Bench judgment”) which is dated anterior to Haryana Assembly case [10]referred hereinabove.

At this stage, the question that comes to the fore is what the law today is and which line of thought should be considered as consistent with the prevailing legal scheme and circumstances. It is noteworthy that the reason for persistently advocating the respective ideas is grounded upon what the proponents of literal rule and golden rule believe while construing provisions. Pertinently, the said rules of interpretation have their boundaries beyond which if a law person travels, would possibly face repercussions. However, what remains to be seen is which among the abovementioned views qualifies the test of legal correctness without infracting the well-defined bounds. To understand the same with precision, it is indispensable to trace the judicial development till date.

III. The Conspectus of Judicial Utterances

In order to understand the aforesaid, it is important to backtrack and discern what transpired in Haryana Assembly case[11] and thereafter in several such cases including Manipur Assembly case[12] (both the High Court order and the Supreme Court judgment). Now, to begin with the chain of events, Haryana Assembly case [13] encountered these unique set of facts for the first time. The Court was called upon to deal with the inordinate delay by the Speaker in considering the disqualification petitions against five (5) members of the assembly (MLAs) who were neither the ones upon whom the survival of the Government depended nor the State Assembly elections were set to take place soon. At the same time, it was also true that the Court inferred mala fide conduct of the Speaker, who was keeping interests of his faction above his constitutional duty. Consequently, the Court examined all the authorities available on the subject and came to the conclusion that Kihoto Hollohan case[14] carves out a solitary exception in case of suspension made by the Speaker, and grounds of mala fide, perversity, want of rules of natural justice are only available after final decision made by the Speaker. Therefore, howsoever peculiar the facts may be, if the Speaker has not passed any order disposing of the petitions, no occasion for the Court arises to assume powers of judicial review. Here, it would not be out of context to point out that the Bench of two Judges indeed took cognizance of the irrelevance of those five MLAs in the formation of the Government and remaining period for next State elections, but restricted their conscience to carve out another exception qua cases where the circumstances emerge per contra.

The Court nevertheless, devised an unprecedented measure by directing the Speaker to dispose of the pending petitions within a specific time-frame of four months. This was clearly in the nature of issuing mandamus. This method is certainly not devoid of intrinsic problems, which are highlighted later on. Thereafter, the Supreme Court encountered this question, amongst other issues, in Orissa Legislative Assembly v. Utkal Keshari Parida,[15] where again it set out timeline for the Speaker to decide the petitions. Till then, this problem had found deep roots in the democratic soil of India. Considering another matter, a two-Judge Bench of the Supreme Court referred this issue for consideration by a Constitutional Bench to finally decide whether such timelines can be framed by the High Court under prevailing scheme of things, of course along with the larger question of laying down the yardstick for High Courts over the Speaker under the defection law.[16] The desire to refer the matter arose when the Speaker disputed the very jurisdiction of the Supreme Court to entertain such issues.

Amidst its pendency before the Supreme Court, few High Courts dealt with the same problem. A Division Bench  of the High Court of Bombay in Indian National Congress v. State of Goa,[17] held that “courts cannot interfere in a proceeding under Tenth Schedule before the Speaker gives a decision as remedy under Para 6 of the Tenth Schedule is not an alternate remedy but the sole remedy available”. Another Division Bench of the same High Court had observed that power to formulate timeline for the Speaker cannot be gleaned from the Schedule or the Rules framed by the Speaker thereunder.[18] Similarly, a Division Bench of the High Court of Madras in R. Sakkarapani Whip v. T.N. State Legislative Assembly[19] dismissed the writ petition on preliminary ground of judicial restraint to take up the matter while these impugned questions were pending before the Supreme Court.  It is pertinent to mention that all these judgments followed the same pattern of not adjudicating the lis between the parties as determination of the law by the Supreme Court was much awaited, nor was any sort of relief granted in favour of the petitioners (not even directing the Speaker to decide the petitions in a particular time period).

Out of the lot, the case of Manipur Legislative Assembly is a little different. A writ petition[20] was filed before the High Court seeking direction for disposal of disqualification proceedings within reasonable period. However, initially noting that the impugned issue was pending adjudication, the High Court kept the matter at abeyance till any substantial orders were passed by the Supreme Court. Subsequently, another writ was filed asking for final adjudication of disqualification petition without any order of disposal from the Speaker. Notably, the petitioner had extensively relied upon the Constitutional Bench judgment[21]. The High Court, in an unexpected turn of events, though refrained from granting any relief to the petitioners but recorded strong prima facie views by noting that the power of the Speaker is that of a tribunal and the remedy provided under Para 6 of the Schedule is nothing but discretionary, which can be availed before approaching the High Courts.[22] It went on to observe that where the members are found to have incurred prima facie disqualification under the Schedule, the court cannot be expected to sit as mere spectator and ought to come to the rescue of the intention of the lawmakers, and perhaps, protect the ultimate goal of the law. It is no doubt true that the Bench, albeit, did not decide the issue, but likewise, ought to have refrained itself from making such sketchy remarks.

This matter in appeal came up for consideration before a Bench of three Judges of the Supreme Court, the verdict of which has been pronounced lately, setting aside the High Court’s view and partly allowing the petitions so far as the question of directing the Speaker to consider the disqualification petitions within a time-limit is concerned. The Court differed on the point of deciding the petition itself but held that the maximum that can be granted is direction setting out reasonable timeline. It might surprise many that the Court cancelled the reference made to the Constitutional Bench by noting that the impugned issue stood settled in Swami Prasad Maurya case[23] (Constitutional Bench judgment). It pertinently relied upon paras 40 and 41 of the same, the relevant extracts of which are reproduced as follows:

40. Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by Para 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of Para 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf … it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with…

41. … It is indisputable that in the order that was originally subjected to challenge in the writ petition, the Speaker specifically refrained from deciding the petition seeking disqualification of the 13 MLAs. On our reasoning as above, clearly, there was an error which attracted the jurisdiction of the High Court in exercise of its power of judicial review.[24]

With so much significance being attached to the Constitutional Bench judgment, it becomes inevitable to cull out its relevant factual findings to understand the fulcrum of this issue. In this case, initially thirteen (13) members of the ruling party approached the Governor of the State concerned and demanded to call the opposition party to form the Government. Subsequently, disqualification petitions were filed against them. However, it was claimed that they form part of thirty-seven (37) members and together they constitute a legit split in accordance with Para 3 of the Tenth Schedule, and therefore cannot be disqualified. The Speaker while keeping the disqualification petitions (filed prior to the claim of split) under Para 2 of the Tenth Schedule pending, accepted the requirements of Para 3 and held that alleged liability of disqualification cannot be imposed on these members. Thereafter, this action of the Speaker was challenged before the High Court. The Speaker, albeit at first, adjourned the pending petitions till the time proceedings are held before the High Court by a specific order, but after more than a year, the Speaker finally rejected the petitions for reasons best known to him. Considering this development, an application to amend the writ petition was filed, which had a rough stint at the High Court. Nevertheless, the writ was finally decided by a Full Bench of the High Court, whereby, it directed the Speaker to consider the disqualification petitions against those thirteen members. The decision of the High Court was assailed before the Supreme Court, wherein, the Bench of five Judges held that Para 3 (split) and/or Para 4 (merger) are mere defences available to the accused members while the disqualification proceedings are conducted. Any attempt to decide such claims of split or merger independently, goes to the root of the matter and thus, is illegal. The Court went on to disqualify the members on the pretext that they were unable to prove the claim of split before the Court even prima facie and secondly, the assembly was at the tail end of its life, which did not provide much time for remitting the petitions for fresh consideration by the Speaker.

IV. Testing the edifice of the “Supreme Court Judgment” (Manipur Assembly case)

Switching back to the focal point, it is important to highlight that for the purpose of this article, only those questions pertaining to the merit of the Supreme Court judgment need deliberation and not those of practice and procedure. The foregoing discussion shall endeavour to put forth the author’s personal opinion as to why reliance placed upon the Constitutional Bench judgment[25] is misplaced. At the outset, it cannot be disputed that the High Court order[26] was a faulty authority inasmuch as it ought to have restrained itself to pass such sketchy remarks when the issue was pending before the Supreme Court. Further, those observations, in a way, conflicted with the relevant portion of the law laid down in Kihoto Hollohan case[27] which has been affirmed by another Constitutional Bench in Raja Ram Pal v.  Lok Sabha,[28] Above all, if at all it could stand on its footing, it would have led to the practice of “forum jumping”, meaning thereby, that the faction feeling aggrieved even by reasonable deference of the Speaker would have opted the alternate remedy before the High Court which would have defeated the real intent of Para 6 of the Schedule.

When the Supreme Court faced this challenge in the appeal, it was expected that the Court would club the matter with the referred matter and try to put the question to rest as expeditiously as possible. However, it requires reiteration that the Court took a step back and pointed out that the issue pending had been already settled in Swami Prasad Maurya case[29] (Constitutional Bench judgment). It is author’s respectful opinion that the question is still alive and hence, open for consideration by a larger Bench. The aforesaid view of the author can be supplemented by the following three grounds:

  1. As has been admitted in the Supreme Court judgment[30], the judgment of the Constitution Bench consisted of totally different facts. Also, the Court was fortunate enough to have a final decision by the Speaker pertaining to acceptance of the claim of split under Para 3 of the Schedule. One may counter this by arguing that it was not the decision pertaining to disqualification petition under Para 2 and those petitions were kept alive by the Speaker by a specific order. However, it deserves a mention that subsequently the petitions were dismissed by the Speaker and consequently the High Court finally decided the pending writ petition.[31] In a way, the High Court and even Supreme Court at least had the opportunity to peruse the final order and thereafter, consider the second writ and appeal thereof. Even otherwise, if the admissibility of the successive order of dismissal of disqualification petition is doubted on the premise that matter was under consideration at that relevant time, the Supreme Court in that very judgment had clarified previously that Paras 3 and 4 cannot act as independent provisions and operate as mere defence available while hearing disqualification proceedings. A logical inference that can be drawn from the abovementioned proposition of law is if the Speaker had accepted the claim of split under Para 3, this ought to have resulted into automatic rejection of disqualification petitions against those members, regardless of how the Speaker purportedly played with the provisions of law which could be attributed to his allegiance towards any political party or whose memberships were at stake. Thus, it would not be wrong to suggest that both, petition under Para 2 and application under Para 3 or Para 4, go hand in hand, and the Court in its order merely interpreted the law as it was and thereby, rejected the colourable order of the Speaker. Further, the judgment in the later part goes on to say that if the members who abandoned their party fail to prove that there was a legit split, consequently, not only them but other members who supported their cause of split would automatically render themselves liable for proceedings under Para 2 of the Schedule.[32] The reverse of it shall naturally sustain in law, where supposedly their claim of split was duly accepted, and then it would have amounted to straight rejection of petitions under Para 2. Therefore, the courts had the final order passed by the Speaker, howsoever illegal it was held to be, but in presence of it nothing remained for the Speaker to adjudicate and this paved the way for the Bench to conclusively decide the issues arising therein.
  2. The second reason is that the matter referred to the Constitutional Bench of five Judges involved a specific question that “whether the High Courts, in absence of a final decision by the Speaker, have power under Article 226 of the Constitution to direct the Speaker to dispose of the disqualification petitions within a restricted period of time”.[33] Neither was this proposition under consideration for the Constitutional Bench in Swami Prasad Maurya[34] nor any argument to supplement or supplant the said issue was ever raised before the Court. The Court and the parties were, from the very inception, on the issue that whether Paras 3 and 4 can be said to operate independently of Para 2 of the Schedule, which the Speaker presumed in affirmative and thereupon passed an order under Para 3 i.e. recognising the split.[35] Therefore, in these circumstances, any remarks, incidental or co-incidental, upon the issue at hand can merely be said as passing observations by the Court and thus, cannot be treated conclusive.[36]
  3. Lastly, non-determination of the issue on merits may possibly lead to an ambiguity in future. The Court in the Constitutional Bench judgment[37] though acknowledged the right course but went on to decide the petitions without remitting to the Speaker to save them from being rendered as infructuous due to approaching dissolution of the Assembly, and thereby carved out an exception to the general law. The Supreme Court judgment[38] in the penultimate paragraph of the Manipur Assembly case recognised that the assembly was not nearing its end and therefore, no relief of such nature can be granted as was granted in Swami Prasad Maurya case[39]. In view of the aforesaid, it would not be surprising if High Courts begin to assume charge and determine the petitions where the assemblies are about to dissolve. As a result, it would stand in conflict with the decision in Kihoto Hollohan case[40], which was further affirmed in several other judgments and is the leading authority of the subject.

In light of these contentions, the author humbly opines that the issue is still open consideration by the five Judges, as referred by the two-Judge Bench in S.A. Sampath Kumar order[41] (supra) since the Supreme Court judgment[42] concerning the Manipur Legislative Assembly did not enjoy privilege of having a final order by the Speaker and the specific issue pending before the five Judges was not deliberated upon in the Constitutional Bench judgment[43], and not to forget the consequential perplexity that may arise in the future.

V. The law as it exists today – Judicial adventurism or constitutional protectionism

Be that as it may, we must see the things as they are and actuality is that the law has become settled (subject to abovesaid reservations) on the impugned proposition of law by the Supreme Court judgment[44] in the Manipur Legislative Assembly. Under the existing law and circumstances, the practice of directing the Speaker to decide the disqualification petition within a specific time-frame seems to be the need of the hour in absence of any provision to safeguard the constitutional mandate. It seems impractical for the courts to sit over and witness the defeat at the hands of such subterfuge. However, this too has not remained free from criticism as some argue that the domain of judicial overreach is spreading widely and this is the new kid on the block as there is no provision or rule that inhere this power to the High Court without examining the final order by the Speaker at the first instance.

However, one might read sufficient literature on judicial activism and judicial adventurism and become certain that judicial activism is a byproduct of mischief rule of interpretation. It becomes adventurism when it is exercised excessively.[45] In the present scenario, although the answers to all our scepticism can be found in an effective amendment to Para 6 of the Schedule[46] but as of now the current measure seems workable as it does not touch the merits of the petitions but is a directive given after taking into account all the objective considerations of deliberate inaction, requirement of expedient decision and consequences that could ensue if a final decision is not passed within a reasonable time. The judiciary believes that this was the minimal and at the same time maximal that could have been done to subserve the larger objective of the anti-defection law. However, any practice touching merits of the disqualification petitions would possibly accuse the judiciary for judicial adventurism.

Having said all this, there are still a few elementary problems haunting this method of directing the Speaker to act in a time-bound manner. The foremost arises when the Speaker does not conform to the timeline set out by the High Court.[47] Whether any plenary steps could be taken by the High Court in such cases to ensure compliance? More importantly, what role would the parliamentary privileges play in safeguarding the Speaker’s non-compliance? These questions certainly need to be addressed without delay to make the method of setting out timeline for the Speaker an effective remedy.


*Practising Advocate at High Court of Delhi, District Courts and Tribunals.

[1] Kihoto Hollohan v. Zachillhu, (1992) Supp (2) SCC 651. See also, Mahachandra Prasad Singh  v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747

[2] (1992) Supp (2) SCC 651, 711.

[3] Black’s Law Dictionary, 2nd Edn., (1910) available at (last visited on 18-5-2020).

[4] S.R. Bommai v. Union of India, (1994) 3 SCC 1; see also, Kuldip Singh v. Subhash Chander Jain, (2000) 4 SCC 50.

[5] (2015) 12 SCC 381 .

[6] R. Sakkarapani Whip v. T.N. Legislative Assembly, 2018 SCC OnLine Mad 1247.

(The same stand was taken by the respondents, however, the occasion to consider this question did not arise as the Court held it as the case involving simple evidence and not complex oral evidence.)

[7] Mohd. Fajur Rahim  v.  Manipur Legislative Assembly, 2019 SCC OnLine Mani 127.

[8] 2020 SCC OnLine SC 55.

[9]  (2007) 4 SCC 270.

[10] (2015) 12 SCC 381.

[11] Ibid.

[12] Mohd. Fajur Rahim  v.  Manipur Legislative Assembly, 2019 SCC OnLine Mani 127; see also,  Keisham Meghachandra Singh v.  Manipur Legislative Assembly, 2020 SCC OnLine SC 55.

[13] Supra Note 5.

[14] (1992) Supp (2) SCC 651.

[15] (2013) 11 SCC 794.

[16] S.A. Sampath Kumar v. Kale Yadaiah, 2016 SCC OnLine SC 1875.

[17] 2017 SCC OnLine Bom 8817.

[18] Vijay Namdeorao Wadettiwar v. State of Maharashtra, 2019 SCC OnLine Bom 2100.

[19] 2018 SCC OnLine Mad 1247.

[20]T.N. Haokip v. Speaker, Manipur Legislative Assembly, 2017 SCC OnLine Mani 137.

[21] Supra Note 9.

[22] Supra Note 7.

[23] Supra Note 9.

[24] Supra Note 9, ¶ 300.

 [25] Supra Note 9.

[26] Mohd. Fajur Rahim  v.  Manipur Legislative Assembly, 2019 SCC OnLine Mani 127.

[27] (1992) Supp (2) SCC 651.

[28] Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184.

[29] Supra Note 9.

[30] Supra Note 8.

[31] Supra Note 9, ¶ 284-285.

[32] Id., ¶ 305.

[33] Supra Note 16.

[34] Supra Note 9.

[35] See, Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729.

[36] Punjab Land Development and Reclamation Corpn. Ltd. v. Labour Court, Chandigarh, (1990) 3 SCC 682; see also, Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562.

[37] Supra Note 9.

[38] Supra Note 8.

[39] Supra Note 9.

[40] (1992) Supp (2) SCC 651.

[41] Supra Note 16.

[42] Supra Note 8.

[43] Supra Note 9.

[44] Supra Note 8.

[45]Bimal Kumar Chatterjee, Judicial Activism — Is it a Boon or a Bane, (2014) 3 SCC J-4, ¶ J-6.

[46]K.Vijaya Bhaskar Reddy, Sabotage of Anti-defection Law in Telangana, Economic & Political Weekly, 12-12-2015.

[47]See, supra Note 5. (The Supreme Court termed the act of the High Court as illegal in calling all the records from the Speaker and itself deciding the petitions for disqualification after noticing non-compliance of the timeline set out.)

Case BriefsSupreme Court

Supreme Court: In a case where a man was tried for and later acquitted from charges under Section 498A/406/34 IPC, the bench of Ashok Bhushan and MR Shah, JJ held that the apprehension that a stigma shall continue with the name of the appellant is misconceived, as stigma, if any, is already over by acquittal.

The appellant had challenged the order of the Principal Secretary, Madhya Pradesh, Law and Legislative Department declaring him ineligible for being appointed to the post of District Judge (Entry Level) and had sought reconsideration by the High Court of Madhya Pradesh. On this the Court said that the mere fact that subsequently after more than a year when the person whose candidature has been cancelled has been acquitted cannot be a ground for reconsideration of his application by the High Court.

Brief facts of the case

The appellant submitted an online form after the High Court of Madhya Pradesh issued an advertisement dated 09.03.2017 inviting applications for recruitment in the post of District Judge(Entry Level) in the cadre of Higher Judicial Service by Direct Recruitment from amongst the eligible Advocates.

  • The appellant after being declared successful in the Main Examination was called for interview.
  • The appellant received a communication on 06.04.2018 from the Law and Legislative Department informing that he has been selected for the post of District Judge (Entry Level). He was asked to appear before the Medical Board for the health tests.
  • On 02.07.2018, the copy of the FIR filed against him by his wife in the year 2014 under Section 498/406/34 IPC was asked for.
  • On 14.09.2018, order was issued by the Principal Secretary, Madhya Pradesh, Law and Legislative Department declaring the appellant ineligible and directing for deletion the name of the appellant from the select list.
  • The Government also issued a Gazette notification deleting the name of the appellant from the main select list.
  • On 18.09.2019, the appellant was acquitted of the charge framed against him in the aforementioned criminal case registered against him by his wife.

Arguments advanced before the Supreme Court

It was argued before the Court that appellant having disclosed the lodging of FIR against him has not concealed any fact before the High Court and he, having been selected on merit, was entitled to be appointed. On the subsequent acquittal of the appellant on 18.09.2019 his case for appointment was to be reconsidered by the High Court and the High Court committed an error in not considering the appellant for appointment. The candidature of the appellant could not have been cancelled merely on the ground of pendency of criminal case.

“The appellant could not have been deprived of the employment after acquittal. There was no other material on record to indicate that antecedent or conduct of the appellant was not upto the mark. The High Court ought to have sent the matter back before the Higher Judicial Service and Examination-cum-Selection Committee for reconsideration.”


WHAT THE COURT SAID


On validity of the order declaring the appellant ineligible

The Court, however, noticed that the present is not a case where the name of the appellant was deleted in the select list on the ground of any concealment of criminal case against him. The name of the appellant was included in the select list which was forwarded to the State. The State after character verification submitted a report which report was considered on 18.07.2018 by the Administrative Committee (Higher Judicial Service) and Examination-cum-Selection and Appointment Committee and a resolution was taken that due to pendency of the case under Section 498A, 406-34 IPC on the basis of complaint filed by the wife, the appellant is not considered suitable for being appointed to the post of District Judge.

Stressing of the requirement that after declaration of the merit list the candidates have to be given appointments in time bound manner so that they may join the respective posts, the Court noticed that on the date when the Committee declared the appellant unsuitable, criminal case against him under Section 498A and 406 IPC was pending which was registered on a complaint filed by the appellant’s wife.

“The mere inclusion in the select list does not give an indefeasible right to a candidate. The employer has right to refuse appointment to the candidate included in the select list on any valid ground. The persons who occupy Judicial Service of the State are persons who are expected to have impeccable character and conduct.”

The character verification report was received from the State where pendency of the criminal case was mentioned which was the reason for the Committee to declare the appellant unsuitable.

On reconsideration of application by High Court after acquittal of the appellant

“In the present case the acquittal having taken place after the close of recruitment process, there was no question of examining the acquittal order by the High Court at the time of finalizing the selection process.”

The Court noticed that there can be no dispute that in event it is found that decision by which the candidature of a candidate is rejected is arbitrary or actuated by malafide such decision can be interfered by the Constitutional Courts. However, the decision of Examination-cum-Section and Appointment Committee for holding the appellant unsuitable was based on the relevant consideration, i.e., a criminal case against the appellant under Section 498A/406/34 IPC was pending consideration which was registered on a complaint filed by the wife of the appellant.

“Such decision of the Committee was well within the jurisdiction and power of the Committee and cannot be said to be unsustainable. The mere fact that subsequently after more than a year when the person whose candidature has been cancelled has been acquitted cannot be a ground to turn the clock backward.”

On stigma attached with appellant’s name

It was argued before the Court that due to deletion of the name of appellant from select list a stigma is attached to him, for removal of which this Court may issue notice in this SLP. The Court, however, said that the appellant having already been acquitted by the judgment dated 18.09.2019 stigma of criminal case has already washed out and the criminal case having resulted in acquittal no stigma is attached to the appellant’s name on the above ground.

[Anil Bhardwaj v. High Court of Madhya Pradesh, 2020 SCC OnLine SC 832, 13.10.2020]

Appointments & TransfersNews

President appoints the following Additional Judges as Permanent Judges:

S/Shri Justices (i) V.G. Arun (ii) N. Nagaresh (iii) T.V. Anilkumar, and (iv) N. Anil Kumar, Additional Judges of the Kerala High Court, to be Judges of the Kerala High Court with effect from the date they assume charge of their respective offices.

Read the notification, here: NOTIFICATION


Ministry of Law and Justice

[Notification dt. 11-09-2020]