OP. ED.SCC Journal Section Archives

 

Rendering justice by granting the required relief is not an act of charity or mercy. Protection and enforcement of constitutional rights and freedoms is both the power and duty of the court and the grant of appropriate remedy is not the discretion of the Judge but his obligation. Justice should be tempered with mercy. But mercy is not the substitute of justice. Justice shall not be administered by courts actuated only by mercy, since justice is the recognition and observance of the constitutional rights of the people. Dignity based on rights is the quintessence of liberty in democracy. The court is called upon to exercise a right based adjudication. The reputation of the court is founded on the conviction of the people of this country. If that conviction is ever undermined, the reputation of this Court will inevitably suffer. I can say with truth that it has ever been my endeavour as this has always been of my predecessors and colleagues to safeguard and enhance the independence and reputation of the Court. I am proud to be a part of this Court which by its judgments have strengthened the democracy and Rule of Law.

I always treat judiciary as a Temple of Justice and the Judges, whether be of the Supreme Court, the High Court or the District Judiciary, as the chosen few to discharge the divine function of dispensing justice to the people.

A Judge is a lawyer mellowed by age, a man from whom the years have taken away illusions, exaggeration and prejudices. Lawyers and Judges are flesh and blood, the colour and flavour of justice. They have functioned together for centuries and have together refined many traditions.

Apart from carrying out its routine functions, the institution of judiciary has to prove its usefulness and importance by dint of good work by the persons forming part of the institution, that is, Judges, Lawyers and Officers and Staff of the Court. An institution grows and march towards heights by good deeds of all such persons forming the institution. I am reminded of the words of Justice Bhashyamlyengar, one of the greatest Judge of our country — “The path of greatness few can follow; the path of duty all can tread”.

The Supreme Court Bar is second to none and is most pleasant to work with. The Supreme Court Bar has played its valuable role in upholding the traditions of this Court and have firmly stood whenever need arose to protect the Rule of Law & democracy. A Judge administers the law and the lawyer guides him in doing it. They both set on a common purpose and the administration of justice is their joint responsibility. My relationship with the Bar was not between a Judge and an Advocate but on a personal plane, where interaction was easy and discharge of duties on either side pleasant and therefore both of us could be on the same wavelength and hence in dealing with cases, your cooperation was total and complete.

My tenure as a Judge of the Supreme Court of India has been the most rewarding for me personally. There can be no doubt that, I have had an opportunity of a lifetime, a privilege beyond description, to serve the cause of justice, alongside the finest Judges of this Nation. My debt of gratitude to everyone, associated with the Supreme Court. I have enjoyed the work here, as I have received able support and cooperation from one and all, which I shall always cherish.

No one can claim to be perfect, for perfection is the domain of God. All that we can do is to try to become less and less imperfect. I am conscious of my shortcomings and limitations, despite which members of the Bar of this Court have been courteous and respectful to me, for which I shall always remain indebted.

On this occasion, I wish each one of you the best in life. Myself and members of my family express sincere gratitude for the abudant love and affection showered on us. May God Almighty bless you all.

As I bid farewell to this great institution, I am reminded of a Sufi poetry,

Goodbyes are only for those who love with their eyes;

Because for those who love with heart and soul there is no such thing as separation.

Thank you. Jai Hind.

———

† Judge, Supreme Court of India. Speech delivered at the Farewell Function organised by the Supreme Court Bar Association on 2-7-2021.

*The article has been published with kind permission of SCC Online cited as (2021) 5 SCC J-7

Conference/Seminars/LecturesLaw School News

The HNLU Career Development Conclave 2022 successfully conducted the second panel discussion on the theme “The Path to a Career in Academia” on 13th of August, 2022. The opening remarks was delivered by Prof. (Dr) V.C. Vivekanandan, Vice-Chancellor, HNLU Raipur and the keynote address was given by Prof. (Dr) Sudhir Krishnaswamy, Vice-Chancellor NLSIU, Bangalore. The panel which consisted of renowned academicians from India and abroad shared their valuable insights and motivated the law students to pursue academics as a career option.
The third panel discussion of the conclave is set to be organised on the theme of “Carving a Niche in the Judiciary – A Roadmap” on 14th of August, 2022. The panel discussion will host the esteemed panel consisting of Mr. Pranav Tripathi, Civil Judge cum Judicial Magistrate, Uttar Pradesh Judicial Services, Ms. Miti Shrivastava, Civil Judge cum Judicial Magistrate, Rajasthan Judicial Services, Mr. Shashank Shekhar, Civil Judge cum Judicial Magistrate, Bihar Judicial Services and Ms. Priya Rathi, Madhya Pradesh Civil Judge 2019 Phase II – Rank 1.

For more details about HNLU Career Development Conclave visit HERE

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Vikram D. Chauhan, J. took cognizance of transfer application which was filed for the transfer of the case under Section 125 Criminal Procedure Code, 1973 pending before the Principal Judge, Family Court, Bhadohi at Gyanpur to the court having competence jurisdiction in District Prayagraj disallowing it and emphasizing on the importance of digitalisation in judicial system.

The digitalisation is not only about implementation of technology. It encompasses the transformation of the courts and justice delivery system using technology in order to enable the experiences to be better, effective and within the reach of the ordinary citizens. The digitalisation is bridging the gap between the courts and the litigant.

Counsel for the applicant submitted that the applicant is wife, who had filed application under Section 125 of the Code, however, when the applicant visited the Court, opposite party 2 and his family members physically assaulted the applicant. There is apprehension of danger of life of the applicant. The applicant had also sought transfer on the ground of financial crisis.

The Court stressed that the various digitalisation processes including addressing the court through video conference has been put in place with the advancement of technology and telecommunication including internet services the litigant is empowered to approach his counsel through telecommunication / Internet. The Court further reminded that the Supreme Court had constituted an e-committee, Supreme Court of India for effective implementation of the Information and Communication Technology (ICT) by the Judicial system in India. The Court pointed out that the information and technology induction will enhance the Judicial productivity both qualitatively and quantitatively, making the justice delivery system accessible, reliable, cost effective and transparent.

A drastic step in this respect has been taken by Allahabad High Court by framing “Rules for Video Conferencing for Courts in the State of Uttar Pradesh, 2020” (Rules of 2020) which has been notified by notification dated 27-11-2020. The principal object of the aforesaid rules is to consolidate, unify and streamline the procedure relating to the use of video conference for the Courts. The Court thus opined that Rules of 2020 effectively address the concern of the litigants including the distance factor and threat perception.

Once the Rules of 2020 have been notified in exercise of powers under Article 225 and 227 of the Constitution of India, for providing video conferencing to the litigant in the Courts and such an alternative channel will be able to address the concerns of the litigant as has been raised in the present transfer application. No ground for transfer of the case from one district to another is made out in view of the observations made herein above.

The transfer application was disposed of with the liberty to the applicant to apply under Rules for Video Conferencing for Courts in the State of Uttar Pradesh, 2020 for video conference facility in judicial proceedings.

[Sunita Devi v. State of U.P., 2022 SCC OnLine All 530, decided on 02-08-2022]


Advocates who appeared in this case :

Om Prakash Singh, Advocate, Counsel for the Applicant;

G.A., Dileep Kumar Srivastava, Advocate, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Know thy Judge

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

Justice A.M. Khanwilkar

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


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

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


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


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

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

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

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

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

As Member of Committees/Task Force/ Associations

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

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

Notable Appearances as a Counsel


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


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

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

Notable High Court Decisions

Bombay High Court

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

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

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

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

Himachal Pradesh High Court

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

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

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

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

Madhya Pradesh High Court

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

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

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

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


Judgeship of Supreme Court of India [2016- 2022]


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

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

Notable Supreme Court Judgments

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

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

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

Prevention of Money Laundering Act

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

Fundamental Rights

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

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

Elections

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

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

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

Local Government- OBC Reservation in Elections

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

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

Schools, Students and Education

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

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

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

Legislative Processes/ Legislations

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

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

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

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

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

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

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

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

Central Vista Project

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

Aadhar Card/ Right to Privacy

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

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

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

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

Same –Sex Relationships – Constitutionality of S. 377 IPC

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

Centre- State Relationship/ Federalism

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

Freedom of Speech and Expression and Hate Speeches

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

Commutation of Death Sentence

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

Evidentiary value of Parliamentary Committee Reports

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

Child Custody

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

Sexual Offences

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

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

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

Adultery

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

Tribunals

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

Taxation

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

Sidhu Road Rage

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

Decisions That Initiated a Broader Discourse

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

Foreign funding for NGOs

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

Gauri Lankesh Murder Case

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

Godhra Riots Case

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

Entry of Women in Sabrimala Temple

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

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


 Legacy


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

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

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


†Sucheta Sarkar, Editorial Assistant has put this report together 

* Judge who has authored the decision

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

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

[3] Justice AM Khanwilkar, SC Observer

[4] www.scconline.com

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

Know thy Judge

 “A man is both a creator and destroyer. Therefore, he is his own future. A better future can only be secured through the younger generation, existing and awaiting.”

M. M. Sundresh

Bharaneeswaran v. Govt. of T.N., 

2020 SCC OnLine Mad 2301


Born on 21-07-1962 at Erode, Justice M.M.Sundresh, completed his school and pre university education at Erode. He completed B.A. Degree at Loyola College, Chennai and LLB at Madras Law College.

As an Advocate

Justice Sundresh was enrolled as an Advocate in 1985 in the Bar Council of Tamil Nadu and Puducherry. The Government of Tamil Nadu had appointed him as the Counsel for the State Government and he worked as Government Advocate from 1991 to 1996. He was also the Counsel for Tamil Nadu Small Scale Industries Development Corporation.

Justice Sundresh had extensive practice in Civil (Appellate), Criminal and Writ Jurisdiction at Madras High Court. He had joined in the Chamber of S. Sivasubramaniam. He also joined in the Chamber of his father V. K. Muthusamy, Senior Advocate. He was selected to the RO System Monitoring Committee to watch the erection of ROS (Reverse Osmosis System) in Thiruppur District, Karur District and Erode District.

As a Judge

Justice Sundresh was elevated to the Madras High Court on 31-03-2009 and became permanent judge on 29-03- 2011. He was elevated as a Judge of Supreme Court of India on 26-08-2021.

  • Did You Know? During his 12-year stint as judge of Madras high court, Justice Sundresh had disposed of 1,03,563 cases.[1]


Notable Judgements at Supreme Court


CCI v. State of Mizoram, 2022 SCC OnLine SC 63

While adjudicating the dispute with regard to jurisdiction of CCI to inquire into allegations of bid rigging, collusive bidding, and cartelisation in the tender process for appointment of selling agents and distributors for lotteries organised in the State of Mizoram the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., concluded that,

“Lotteries may be a regulated commodity and may even be res extra commercium; that would not take away the aspect of something which is anti-competition in the context of the business related to lotteries.”

Read More…


State of Uttarakhand v. Sudhir Budakoti, 2022 SCC OnLine SC 420

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that when there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one.

Read More…


Union of India v. Manpreet Singh Poonam, 2022 SCC OnLine SC 272

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has observed that a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules.

Read More…


State of Rajasthan v. Mahesh, Special Leave to Appeal (C) No.12376/2019

In the case where it was argued before the Court that the Industrial Disputes (Rajasthan Amendment) Act, 1958 which received the President’s assent on August 12, 1958 stands eclipsed after the enactment of the Contract Labour (Regulation & Abolition) Act, 1970, the bench of Sanjay Kishan Kaul and MM Sundresh, JJ has dismissed the SLP after observing that the issue must first be raised before the Industrial Tribunal or the High Court.

Read More…


Union of India v. Manpreet Singh Poonam, 2022 SCC OnLine SC 272

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that a voluntary retiree cannot seek retrospective promotion as a matter of right sans rules governing.

Read More…


Jogi Ram v. Suresh Kumar, 2022 SCC OnLine SC 127

In a half a century old case relating to a Will, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the objective of Section 14(1) of the Hindu Succession Act, 1956 is to create an absolute interest in case of a limited interest of the wife. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of.

“If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator.”

Read More…


Jasdeep Singh v. State of Punjab, 2022 SCC OnLine SC 20

Drawing an interesting analogy to explain the scope of Section 34 of IPC, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has said that it is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper.

“A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.”

Read More…


Dhananjay Rai v. State of Bihar, 2022 SCC OnLine SC 880

In furtherance of Criminal Justice, the bench of Abhay S. Oka* and MM Sundresh, JJ has held that an appeal against conviction filed by an accused under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973 cannot be dismissed on the ground that the accused is absconding.

Read More…


Abu Salem Abdul Kayyum Ansari v. State of Maharashtra, 2022 SCC OnLine SC 852

In a big development, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has directed that the infamous gangster/terrorist Abu Salem be released after the completion of 25 years of his sentence in terms of the national commitment as well as the principle based on comity of courts. Salem was convicted on 12.10.2005.

Read More…


Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154

In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.

Read More…


Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, 2021 SCC OnLine SC 1031

In a case relating to dishonour of cheques where it was alleged that the complaint was filed by the managing director in his personal capacity and not on behalf of the Company, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that there could be a format where the Company’s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. It was further held that it would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation.

Read More…


U.N. Bora v. Assam Roller Flour Mills Assn., 2021 SCC OnLine SC 968

In the case dealing with willful disobedience of the order passed by the Supreme Court in the year 2008 with respect to the levy made while upholding Section 21 of the Assam Agricultural Produce Market Act, 1972, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that vicarious liability as a principle cannot be applied to a case of contempt and that the appellants cannot be implicated for alleged action of their subordinates.

Read More…


V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896

Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.

Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,

“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”

Read More….


Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833

Coming down heavily upon a contemnor, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the power to punish for contempt is a constitutional power vested in this Court which cannot be abridged or taken away even by legislative enactment.

“Such litigants cannot be permitted to have their way only because they can plead and write anything they feel like and keep on approbating by sometimes apologising and then again bringing forth those allegations.”

Read More…


B. Sailesh Saxena v. Union of India, WP (Civil) No. 555 of 2020

A Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ. dismissed a writ petition filed by an advocate seeking to stall elevation of a judicial officer as a Judge of the Telangana High Court. The Supreme Court said that the petition was a gross abuse of the process of law and imposed costs of Rs 5 lakh on the petitioner.

Read More…


Notable Judgements at High Court


M. Padmanabhan v. District Collector, 2021 SCC OnLine Mad 698

The Division Bench of M.M. Sundresh and S. Ananthi, JJ., held that temple shall not be a place for perpetuating communal separation leading to discrimination, on the other hand, it should facilitate all those persons having common faith to come and worship.

 “The classification among men has got no place in the aboard of God.”

Read More…


Bharaneeswaran v. Government of Tamil Nadu, 2020 SCC OnLine Mad 2301

The Division Bench of M.M. Sundresh* and R. Hemalatha, JJ., disposed of the petitions with regard to concerns arising due to online classes, stating that it hopes the above-laid guidelines are complied with and makes it clear that all the directions are applicable to the Schools functioning in the Tamil Nadu.

“A great nation is built on a character of its own citizens. It transforms into the character of the nation leading to its progress achieved through a value system.”

Read More…


 Bader Sayeed v. Union Of India, 2017 SCC OnLine Mad 74

While examining the validity of certificates issued by the Kazis in the country in general and in Tamil Nadu in particular in respect of Talaq, the Division Bench of Sanjay Kishan Kaul, C.J., and M.M. Sundresh, J., held that for purposes of the courts and legal proceedings, the certificate in respect of Talaq issued by Chief Kazi is only an opinion and has no legal sanctity in view Section 4 of the Kazis Act, 1880 according to which the office of Kazi does not confer on the person any judicial or administrative power.

Read More…


 N. Selvathirumalv. Union of India,2016 SCC OnLine Mad 1624

Taking a landmark step, the Division Bench of the Court comprising of S.K. Kaul*, C.J. and M.M. Sundresh, J., directed the schools affiliated to the Central Board of Secondary Education (CBSE) and the private schools in the state of Tamil Nadu to make the singing of the National Anthem as an integral part of their curriculum.

Read More…


 V. Vasanthakumarv. H.C. Bhatia, 2015 SCC OnLine Mad 300

While dismissing a petition with regard to the setting up of National Court of Appeal as suggested by the Constitution Bench of the Supreme Court in Bihar Legal Support Society v. Chief Justice of India(1986) 4 SCC 767 , the Division Bench of S.K. Kaul, C.J. and M.M. Sundresh, J., stated that setting up of a National Court of Appeal is a matter of legislation and constitutional amendment, therefore, repeated agitations by the petitioner for reconsideration on the same by filing petitions is needless and thus not maintainable.

Read More…


 C. Udayachandrika v. Secy., T.N. Legislative Assembly, 2015 SCC OnLine Mad 194

In the instant case where the petitioner appearing in person praying to the Court to declare the notification issued by the Tamil Nadu Gazette, Extraordinary No.223 dated 8.11.2014 stating that former Chief Minister of Tamil Nadu, Selvi J. The Court observed that  such frivolous petitions are to be penalized by imposing exemplary costs but, since the petitioner committed this misadventure for the first time therefore she was let off only with a caution so as to dissuade her to pursue any such frivolous petitions under the garb of a Public Interest Litigation.

Read More…


Solaimalai v. Tamil Nadu Forest Plantation Corp. Ltd., 2019 SCC OnLine Mad 3883

“Man is the most insane species. He worships an invisible God and destroys a visible Nature, unaware that this Nature he’s destroying is this God he’s worshiping.”

– Hubert Reeves

A Division Bench of Justices M.M. Sundresh* and N. Sathish Kumar had ordered a Central Bureau of Investigation probe into a series of elephant poaching incidents reported in the State. They also observed the network involved was cutting across boundaries.

“Wisdom requires that it should be left in the hands of man of knowledge in that field with the coordination of all the stake holders and this Court as well. Therefore, we are inclined to appoint a Committee consisting of Experts in various fields to address the larger issues such as banning the plastic in the forest zone, prohibiting the polluted vehicles to ply, employing the local population, increasing the strength of the staff, creating a strong seed bank, evolving measures to be adopted in removal and rehabilitation, priority of the area which requires immediate attention, areas requiring specific action, mapping of the entire area, possibility of using any other fund towards achievement of the task, utilising the removed plants and trees towards the object, creating a specific cell to be decided by the Government, disposal of the removed species and strengthening the indigenous species.”


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

* Judge who has penned the judgment.

[1] https://www.scobserver.in/judges/m-m-sundresh/

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

“Higher the forum and greater the powers, the greater is the need for restraint”

Jammu and Kashmir and Ladakh High Court: While allowing the instant petition wherein the aggrieved party invoked the jurisdiction of the Court under Section 482 CrPC, seeking to expunge the adverse remarks, observations and directions made by the Additional Sessions Judge, Jammu; the bench of Mohan Lal, J., observed that for proper administration of justices, judges must remember the general principle of highest importance that, derogatory remarks are not to be made against persons, unless such censuring of conduct is absolutely necessary for the case. “The Judge’s Bench is a seat of power and has absolute and unchallengeable control of the court domain, but they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses”.

Facts of the case: The petitioner who is the Dy. Superintendent of Police (HQ), Kishtwar, was handling investigation in several cases filed under the Unlawful Activities Prevention Act and Arms Act. Upon completion of investigation in one of the cases [FIR No. 01/2020], the matter was presented before the Trial Court. In the impugned order dated 02-06-2021, the Additional Sessions Judge, after framing the charges, went on to make certain observations regarding the conduct of investigation into the matter with particular focus on the petitioner. The Judge noted that, “during investigation I/O/petitioner has conducted the investigation in a lethargic and sluggish manner (…) much better investigation could be conducted by even a Head Constable in comparison to I/O (…) I am quite surprised that how Mr. Sunny Gupta, Dy. SP has qualified the administrative examination of the state and become Dy. SP in the police department”.

Aggrieved by the afore-stated remarks, the petitioner knocked on the doors of the High Court.

Contentions:

  • The counsel for the petitioner submitted that the disparaging remarks made by the Trial Court against the petitioner have the potential to demoralize the police officers, who by putting their lives to grave risks, are bursting the militants/terrorists’ network and are investigating the cases under Unlawful Activities Prevention Act.
  • It was argued that though it is right of the courts to make free and fearless comments and observations, but there is corresponding need for maintaining sobriety, moderation and restraint regarding the character, conduct, integrity, credibility etc. of parties or witnesses or others concerned. The Judges and Magistrates must be guided by considerations of justice, fair play and restraint.
  • The petitioner also submitted that, the remarks of the Trial Court regarding the petitioner’s eligibility and professional competency were harsh/disparaging which should not have been made by the Trial Court which was only dealing with a question of charge/discharge of the accused.

Per- contra, the respondents argued that

  • Petitioner had failed to investigate the case in a manner required under law against the accused persons, therefore, the Trial Court correctly recorded that investigation has been conducted in a very perfunctory and unprofessional manner, whereby, IGP Jammu has been directed by the trial court to conduct departmental enquiry against the petitioner,
  • It was contended that the impugned order is in accordance with law and does not suffer from any illegality.

Observations: Perusing the facts, contentions and the disputed remarks, the Court referred to the cases of Niranjan Patnaik v. Sashibhusan Kar, (1986) 2 SCC 569 and Abani Kanta Ray v. State of Orissa, 1995 Supp (4) SCC 169, whereby it was made very clear that, “In expressing their opinions, Judges and Magistrates must be guided by consideration of justice, fair play and restraint, (…) the judges should not normally depart from sobriety, moderation and reserve and harsh or disparaging remarks are not to be made against the parties or authorities unless it is really necessary for the decision of the case as integral part thereof”

  • The Court observed that petitioner as I/O of the case, in his best wisdom, has collected all the material/evidence during the investigation conducted by him and has placed all the relevant evidence before the Trial Court. Therefore, it was the duty of the Trial Court evaluate the presented evidence on the record and to prima-facie come to conclusion whether accused persons can be charged/discharged.
  • The Court pointed out that it was not necessary for the Trial Court to record such harsh/disparaging remarks against the petitioner. “Law is no longer res-integra that the harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before the courts unless heard”.
  • The Court stated that Judicial restraint and discipline are necessary to the orderly administration of justice. “The duty of restraint is humility of function and should be a constant theme of our Judges”.

Decision: Directing that the derogatory remarks made by the Additional Sessions Judge against the petitioner be expunged, the Court held that the Trial Court was supposed to pass/record an order on the charge/discharge of the accused persons, and it was not absolutely necessary for the Sessions Judge to pass any remark regarding the conduct of the petitioner vis-a-vis the conduct of investigation and discharge of the accused.

[Sunny Gupta v. Union Territory of J&K, 2022 SCC OnLine J&K 520, decided on 04-07-2022]


Advocates appearing in the case :

Sunil Sethi, Sr. Advocate with Lawanya Sharma, Advocates, for the Petitioner;

Suneel Malhotra, GA, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Know thy Judge

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

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

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

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

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


Career as an Advocate


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

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

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

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

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

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

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


Remarkable Judgments as the Judge of Supreme Court


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

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

Read more…


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

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

Read more…


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

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

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

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

Read more…


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

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

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

Read more…


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

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

Read more…


CBI v. Uttamchand Bohra2021 SCC OnLine SC 1208

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

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

Read more…

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

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

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

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 Commissioner of Police v. Raj Kumar2021 SCC OnLine SC 637

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

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

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

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

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

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

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

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

Read more…


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

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

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

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

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

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

The notice is returnable on July 12, 2021.

Read more…

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

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

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

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

The Court held that

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

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

Read more…

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

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

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

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

Read more…

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Paramvir Singh Saini v. Baljit Singh2020 SCC OnLine SC 983

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

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

Read more…

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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


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

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

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

[3] Ibid.

[4] 2003 SCC OnLine Ker 218

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

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

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

Case BriefsSupreme Court

Supreme Court: In a case where a Judge was accused of misconduct, the bench of Dr. DY Chandrachud and Bela M. Trivedi, JJ has held that showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration.

“It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”

The appellant in the case at hand had joined the Uttar Pradesh Judicial Services in the year 1978 and sought voluntary retirement from the said services in September 2003. Immediately after the retirement, appellant joined as a Judicial Member, Central Administrative Tribunal, Mumbai Bench, Mumbai.

On 19.07.2005, the appellant was informed that the Allahabad High Court had initiated a departmental enquiry against him. There were twelve charges levelled against the appellant in the said chargesheet. It was alleged against that the appellant, while posted as the 11th Additional District Judge, Agra during the period from 23.05.2001 to 19.05.2003, had decided a batch of matters under the Land Acquisition Act, 1894 and had awarded enhanced compensation which was multiple times more than the investments made by the subsequent purchasers of the acquired lands; that such subsequent purchasers had no right to claim compensation for the acquired lands; that the appellant had determined the compensation in terms of square yards and not in terms of bighas, and had awarded such compensation in flagrant violation of the cardinal principles of law and equity and against all judicial norms and propriety, with a view to unduly favour such subsequent purchasers. It was therefore alleged that the appellant had failed to maintain absolute integrity and complete devotion to duty, and thereby had committed a misconduct within the meaning of Rule-3 of U.P. Govt. Servants Conduct Rules, 1956. Once charge levelled against the appellant pertained to an undue favour shown to the son of a Counsel named Shri KC Jain, by exorbitantly enhancing the compensation in his favour.

The Supreme Court observed that when the Enquiry proceedings have been found to have been conducted in proper and legal manner, and when the High Court on administrative side as well as on judicial side, has accepted the findings recorded by the Enquiry Officer qua the charge levelled against the appellant as “proved”, holding him guilty of having committed “misconduct”, it was not expected to sit as an appellate authority and revaluate the adequacy or reliability of the evidence adduced before the Enquiry Officer.

The Court observed,

“There was enough evidence and material to show that the appellant had misconducted himself while discharging his duties as a judicial officer, and had passed the judicial orders in utter disregard of the specific provisions of law, to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive. Under the circumstances, the High Court was perfectly justified in exercising its supervisory jurisdiction under Article 235 of the Constitution.”

[Muzaffar Hussain v. State of Uttar Pradesh, 2022 SCC OnLine SC 567, decided on 06.05.2022]


*Judgment by: Justice Bela M. Trivedi


Counsels

For appellant: Senior Advocate Pradeep Kant

For respondent no. 2: Advocate Charu Ambwani

Op EdsOP. ED.

Introduction

Constitution defines the powers, functions and duties of the legislature, the executive and the judiciary, the three pillars of democracy. The legislature is to make law, the executive to implement it and the judiciary to interpret the same. Each of the three wings has to function within the limits prescribed under the Constitution. None of the them can trespass into the field which is constitutionally delegated to the other wing. Principle of separation of powers is one of the basic features of the Indian Constitution.

The Constitution of India1 came into force in 1950. More than seven decades have passed since the commencement of the Constitution and this period has often witnessed tug of war between the executive and the judiciary. Role assigned to the judiciary is to act as an impartial arbiter and to maintain the supremacy of the Constitution. The interpretation of Constitution involves the interplay of various basic features such as parliamentary supremacy, independence of judiciary, rule of law, principle of separation of powers, etc. Anti-executive judgments rendered by the courts were often nullified by Parliament through constitutional amendments. Interpretation of the Constitution by the courts often give rise to tussle between the judiciary and the executive. Every attempt made by the legislature and executive to dilute the power of judicial review has been rendered futile through judicial interventions. Judiciary has to interpret the Constitution in accordance with the felt  necessities of the time. The attempt in this article is to examine how judiciary expanded its powers and built up the power of judicial review brick by brick while responding to the felt needs of the time over the last seven decades.

Widest areas of judicial interpretation

Article 21 of the Constitution

Article 212  is perhaps the constitutional provision which has received the widest possible interpretation by the Supreme Court over the last seven decades. Article 21 provides as follows:

No person shall be deprived of life or personal liberty except according to procedure established by law.

This fundamental right was given a narrow interpretation by the Supreme Court in A.K. Gopalan v. State of Madras3 . It was held that “personal liberty” in Article 21 means nothing more than the liberty of the physical body, that is freedom from arrest and detention. The expression “law” in Article 21 was interpreted as State-made law and not “due process of law”. The above literal interpretation of Article 21 held the field for 28 years till the judgment in Maneka Gandhi v. Union of India4 in 1978. The narrow interpretation given to Article 21 in Gopalans case5 was rejected by a 9-Judge Bench of the Supreme Court in Maneka Gandhi case6 . Overruling Gopalancase7,, it was held as follows:8

  1. … The expression “personal liberty” in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 199….

The Court held that the expression “personal liberty” is not confined to the person or body of the individual but it includes all those rights which constitute the making of a man. It was also held that “procedure established by law” means “fair, just and reasonable procedure” and that it should not be “fanciful, oppressive or arbitrary”. By holding so, the Supreme Court accepted due process clause which was expressly rejected in Gopalan case10. In Sunil Batra v. Delhi Admn.,11 Krishna Iyer, J. observed:

…Though our Constitution did not have a “due process” clause as in the American Constitution the same consequences ensued after the judgment in Rustom Cavasjee Cooper v. Union of India (Bank Nationalisation case)12 and Maneka Gandhicase13.

It was also held in Maneka Gandhi case14 that fundamental rights are not watertight compartments and that they have to be read complimentary to each other. Accordingly, Article 21 has to be understood by reading the same along with Articles 1415 and 19.

Following Maneka Gandhi case16, it has been held in Francis Coralie Mullin v. Administrator, UT of Delhi17  that “right to life” includes right to live with basic human dignity. A variety of rights have been read into Article 21 over the last few decades, the latest being “right to privacy” and “right to sexual orientation”. While declaring that “right to life” includes “right to privacy” , the rights which flow from Article 21 have been summed up by the Supreme Court in K.S. Puttaswamy v. Union of India:18

(i)   the right to go abroad;

(ii)  the right against solitary confinement;

(iii) the right of prisoners against bar fetters;

(iv)  the right to legal aid;

(v)   the right to speedy trial;

(vi)  the right against handcuffing;

(vii) the right against custodial violence;

(viii)the right against public hanging;

(ix)  right to doctor’s assistance at government hospitals; and

(x)   right to shelter;

(xi)  right to a healthy environment;

(xii) right to compensation for unlawful arrest;

(xiii) Right to freedom from torture;

(xiv)right to reputation; and

(xv) right to earn a livelihood.

Judicial review suffered a severe setback during the emergency regime. In ADM, Jabalpur v. Shivkant Shukla19 the Supreme Court by 4:1 majority held that Article 21 is the sole repository of right to life and personal liberty and that once the said right is suspended no person had any locus standi to file writ petition to challenge the legality of an order of detention even if the order was not under or in compliance with the Act or is illegal, or was vitiated by malafides or is based on extraneous considerations. The interpretation given to “life and liberty” and “judicial review” by H.R. Khanna, J., the lone dissenting Judge became the source for development of constitutional law and human rights jurisprudence. Though ADM, Jabalpur20 was not followed in subsequent cases and its effect was taken away by the 44th constitutional amendment Act21, it was formally overruled only in 2017 in Puttaswamy.22 The interpretation given to Article 21 from Maneka Gandhi23 to Puttaswamy24  has given a new dimension to human rights jurisprudence. It enabled the judiciary to widen the scope of judicial review of both legislative and executive action.

Equality and arbitrariness

Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. The first expression “equality before law” is of English origin and the second expression “equal protection of laws” has been borrowed from the American Constitution.

Though Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature. However, classification should not be arbitrary or artificial. The classification to be reasonable should fulfil two conditions:  the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and the differentia must have rational nexus with the object sought to be achieved by the Act. The classification theory governed Article 14 in the beginning. However, to expand the content and reach of Article 14, a new concept of equality was propounded by the Constitution Bench of the Supreme Court in E.P Royappa v. State of T.N..25This new concept was explained by  Bhagwati, J. in the following words:26

  1. … Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. When an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….

Eminent jurist H.M. Seervai did not find favour with the new doctrine of equality propounded by  Bhagwati, J. in Royappacase27. He observed “the new doctrine hangs in that air because it propounds a theory of equality without reference to the terms in which Article 14 confers right to equality”.28

In Maneka Gandhi v. Union of India29, Bhagwati,J. quoted with approval the new concept of equality propounded in Royappacase30 and observed as follows:31

  1.  Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits…. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as I have well as philosophically is an essential element of equality and non-arbitrariness, pervades Article 14 like a brooding omnipresence….

The same principle was reiterated in Ramana Dayaram Shetty v. International Airport Authority of India32.Prior to the above decisions, the view held was that Article 14 forbade discrimination and not classification, provided the classification fulfilled the twin test referred to earlier. According to the new doctrine, the classification theory is merely a judicial formula for determining whether the legislative or the executive action is arbitrary and therefore constitutes a denial of equality. Article 14 strikes at arbitrariness in State action. This means if the State action is arbitrary, it cannot be justified even on the basis of the doctrine of classification. Article 14 strikes arbitrariness in State action and ensures fairness and equality of treatment. In Maneka Gandhicase33 it is held that Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.

In Mithu v. State of Punjab34 Section 303 of the Penal Code35 which provided for mandatory death penalty to life convicts who commit murder was struck down as arbitrary and violative Articles 14 and 21 of the Constitution. In Mithu36 and Sunil Batra37, statutory laws were struck down on the ground of arbitrariness. The Supreme Court refused to follow the arbitrariness doctrine in State of A.P. v. McDowell& Co.38 and took the view that if an enactment is challenged as violative Article 14, it can be struck down only if it is violative of equality clause and equal protection clause and not on the ground that it is arbitrary or unreasonable and that court cannot sit in judgment over the wisdom of legislature.

However, in Shayara Bano v. Union of India39 while dealing with the validity of triple talaq, Rohington Nariman and U.U. Lalit, JJ. found that McDowell case40 did not notice the earlier judgments in Maneka Gandhi41and Mohd. Arif v. Registrar, Supreme Court of India42 and therefore refused to follow the dictum in the said case. Though Mithu43 was referred to in McDowellcase44 it was wrongly held that Mithu45 turned mainly on Article 21 though Article 14 was referred to. After holding that the ratio in Mithu46 was based on both Articles 14 and 21 the learned Judges found that arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action. It was finally held by both Nariman and Lalit, JJ. that practice of triple talaq is violative of Article 14 being manifestly arbitrary and contrary to rule of law.

Following the judgments in Mithu47 and Shayara Bano48it is now increasingly clear that any legislation which is manifestly arbitrary can no longer survive the test of Article 14.

Right to constitutional remedies

Constitution makers were careful to provide effective remedies for the enforcement of fundamental rights before both the Supreme Court and the High Court. Initially only an affected party was permitted to invoke the writ jurisdiction of the High Court as well as the Supreme Court. The only exception was in the case of habeas corpus where a person other than the detainee was permitted to challenge the detention. The traditional rule of locus standi that a petition under Articles 3249 or Article 22650 can only be filed by an affected person was relaxed by the Court. Following Judges Transfer case51  the Courts now permit public interest litigation at the instance of public-spirited citizens for the enforcement of constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position is unable to approach the court for relief. While relaxing locus standi, the Court cautioned that the members of the public, who approaches the Court should be acting bona fide and not for personal gain or private profit or political motivation.52

Article 32(1) guarantees the right to move the Supreme Court through appropriate proceedings for the enforcement of fundamental rights. The Courts’ power to convert letters into writ petitions was challenged in Bandhua Mukti Morcha v. Union of India53popularly known as bonded labourer’s case. This power was traced to the expression “appropriate proceedings” in Article 32 of the Constitution. It was held that the expression “appropriate proceeding” referred to in Article 32 must be judged in the light of the purpose for which the proceeding is initiated, namely, enforcement of fundamental rights. The Court justified the procedure of converting letters into writ petition by holding that Constitution makers deliberately did not lay down any particular form of proceedings for enforcement of fundamental right because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a right formula of proceeding for enforcement of fundamental right would become self-defeating.

The scope of this article was widened by the Supreme Court to entertain public interest litigation (PIL). Unfortunately, over a period of time, the noble purpose for which this new jurisdiction was created was abused by unscrupulous litigants for personal and political purposes. In Janata Dal v. H.S. Chowdhary54 the Supreme Court reiterated its observations in S.P. Gupta55 that the Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. In Ashok Kumar Pandey v. State of Bihar56 the Court warned against misuse of PIL in the following words:

The Court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal.

Bandhua Mukti Morcha57 fashioned new remedies by conferring discretion on both the Supreme Court and the High Court  to award compensation for contravention of fundamental rights. It was held as follows:

Article 32 does not merely confer power on the Court to issue a direction, order or writ for the enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including forging new tools and fashion new strategies designed to enforce fundamental rights it is in realisation of this constitutional obligation that this Court has innovated new methods and strategies particularly for enforcing the fundamental rights of the poor and disadvantaged who are denied their human rights and to whom freedom and liberty have no meaning.

The grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of fundamental rights guaranteed under Article 21 is an exercise of the court’s power under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. D.K. Basu v. State of W.B.58

In Nilabati Behera v. State of Orissa,59 and D.K. Basu v. State of W.B.60, it was held that the doctrine of sovereign immunity has no application to State’s liability for contravention of fundamental rights and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights. It is further held that the claim in public law for compensation for violation of fundamental right to life and liberty is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants.

In S. Nambi Narayanan v. Siby Mathews,61 after quoting with approval the judgment in D.K. Basu v. State of W.B.62, the Supreme Court declared that pendency of civil suit for compensation will not bar the constitutional court to grant compensation under the public law remedy.

Even international conventions are treated as enforceable in Indian courts if they are not in conflict with municipal law and can be read to give effect to what is enshrined in PartIII of the Constitution.63

Directive Principles of State Policy

The Directive Principles of State Policy are included in Part IV of the Constitution. Article 37 provides that directive principles are fundamental in the governance of the country and that the State is duty-bound to apply these principles while making law. The directive principles differ from the fundamental rights inasmuch as the directives are not enforceable in the courts and do not create any justiciable rights to anyone. The relationship between directive principles and fundamental rights have been the subject-matter of several judgments right from the inception of the Constitution. The earlier decisions of the Supreme Court show that the courts did not give much importance to the directive principles, possibly because they were not enforceable in courts of law unlike fundamental rights. It was held in State of Madras v.Champakam Dorairajan64 that in case of any conflict between fundamental rights and directive principles, the fundamental rights would prevail. In Kerala Education Bill, 1957, In re65 the Court advocated harmonious construction in case of conflict between directive principles and fundamental rights. In Kesavananda Bharati Sripadagalvaru v. State of Kerala66 the Supreme Court held that directive principles and fundamental rights aimed at social revolution and establishment of a welfare State and they are supplementary and complimentary to each other.

Though the Court cannot compel the State to pass legislation to implement directive principles, the Supreme Court has been issuing several directions to the Government and administrative authorities to take positive action to remove the grievances which were caused by the non-implementation of the directives67.

Later judgments of the Supreme Court show that the mandate to build a welfare State was more a concern of the judiciary than the State. Though the directive principles were intended as principles to be translated into law by the executive, the same did not prevent the court from transforming the same into fundamental rights. This was achieved by giving a wide interpretation to Article 21. Equal pay for equal work [Article 39(d)68], protection of children from exploitation [Article 39(e)69], free and compulsory education of children up to the age of 14 years(Article 4570) protection of working women from sexual harassment (Article 4271), free legal aid to poor, speedy trial of undertrial prisoners (Article 39-A72), right to work and medical assistance to workers (Article 4173), and protection of environment (Article 48-A74) are some of the directive principles which have been elevated as fundamental rights.

The Court in its enthusiasm to expand fundamental rights declared in Mohini Jain v. State of Karnataka75that “right to life” includes “right to education”. The same was later modified by a larger Bench of the Supreme Court in Unni Krishnan, J.P. v. State of A.P.76 clarified that “right to life” includes “right to education” only up to the age of 14 years as this right has to be understood as part of Articles 41 and 45 included in Part IV of the Constitution. Following this judicial declaration, Parliament passed 86th Constitutional Amendment Act77 whereby “right to free and compulsory education up to the age of 14 years” was expressly made a fundamental right by inserting Article 21-A in Part III of the Constitution.

Privileges of the Legislature

Article 10578 deals with the privileges of Parliament and Article 19479 deals with the privileges of the State Legislatures. Controversy often arises as to whether the legislature is the sole and exclusive judge of its privileges and whether the High Court or the Supreme Court are empowered to examine the decision taken by the legislature in this regard.

The law in this regard was settled by the Supreme Court in popularly known as U.P. Vidhan Sabha case.80 One Keshav Singh, a journalist was found guilty of contempt of the house and was sentenced to imprisonment for 7 days by the U.P. Assembly. He filed a habeas corpus petition challenging the detention before the Allahabad High Court. Initially a Bench of two Judges of the High Court granted him an interim bail. In response to this the Assembly passed a resolution against the two Judges, Keshav Singh and his advocate on the ground that they had committed contempt of the house and they were directed to be taken into custody and to be brought before the house. The Judges and the advocate approached the High Court challenging the resolution passed by the House on the ground that the resolution amounted to contempt of court. The Full Bench of the High Court granted an interim order staying the implementation of the resolution passed by the Assembly. The assembly again passed a resolution asking the Judges to appear before the House and to explain their conduct. The High Court again granted a stay against the implementation of the new resolution. At this stage, the President of India intervened and referred the matter to the Supreme Court under Article 14381for its advisory opinion.

The Supreme Court by a majority of 6:1 found that Article 226 confers wide power on the High Courts to issue a writ of habeas corpus against any authority including the legislature. The Indian courts are empowered to examine the validity of detention of a person sentenced by the Assembly under a general or unspeaking warrant. A distinction was drawn between the British and Indian Parliament inasmuch as the former is a sovereign and the latter is subject to the provisions of the Constitution. The High Court had wide powers under Article 226 to examine the validity of detention by any authority including the legislature. The scope and nature of power vested in the legislature under Article 194 lies with the court and any examination of the same does not give rise to a cause of action for taking action for contempt of the legislature. Thus, the Supreme Court drew the lakshman rekha between the legislature and the judiciary. The law declared by the Supreme Court in Keshav Singh case82 is balanced and it holds the field even now.

Anti-Defection Act

As per the provisions of Anti-Defection Act, the Speaker was vested with the power to decide on the disqualification of a member of the legislature. The decision of the speaker was treated as final. However Para 7 of the Tenth Schedule83 barred judicial scrutiny of any action taken by the Speaker in this regard. The Supreme Court struck down Para 7 of the Tenth Schedule as unconstitutional on the ground that it took away the power of judicial review. However, the remaining provisions of the Tenth Schedule was declared as valid in Kihoto Hollohan v. Zachillhu84.

Appointment and transfer of Judges

The Supreme Court, the guardian of the Constitution has to discharge the rare function of defining its own role on the appointment and transfer of Judges. In doing so it has to protect the independence of judiciary without compromising the constitutional principles.

Article 124(2)85 provides as follows:

  1. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such other Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Till 1973, the executive followed the convention to appoint the seniormost Judge of the Supreme Court as the Chief Justice of India. However, this Convention was given a go-bye by the executive in 1973 and Justice A.N. Ray was appointed as Chief Justice of India superseding three senior Judges of the Supreme Court. This was the fall out of the judgment in Kesavananda Bharati case.86 In protest the three senior Judges resigned from the Supreme Court.

The meaning of the word “consultation” came up for consideration for the first time in Sankal Chand Sethcase in the context of Article 222 of the Constitution. The word “consultation” was given a narrow interpretation by the Court. “Consultation” did not mean concurrence and that the President was not bound by it. This meant that the President had the right to differ and take a contrary view. However, the word “consultation” meant full and effective consultation.

The interpretation given to the word “consultation” in Union of India v. Sankalchand Himatlal Sheth87 was reiterated by the Supreme Court in S.P. Gupta v. Union of India.88 The case arose out of a letter written by the Union Law Minister to Chief Ministers of the States asking them to obtain prior consent from persons recommended for appointment as Judges of the High Court to be transferred to any other High Court in the country.  The word consultation in Article 124(2) was interpreted to mean the same as the meaning of the word “consultation” in Articles 21789 and 22290 of the Constitution.

Though the Government claimed privilege from disclosing the documents relating to the advice tendered by the Council of Ministers to the President under Article 74(2)91 the same was rejected by the Court. It was held that right to know is implicit in the right to freedom of speech and expression and that disclosure of information must be the rule and secrecy an exception which is justified only if the strictest requirement of public interest demand. While the advice given by the Council of ministers to the President was protected against judicial scrutiny, the correspondence between the law minister, the Chief Justice of India and the Chief Justice of Delhi High Court was not protected merely because it is referred to in the advice as it does not form part of the advice so as to be protected from disclosure under Article 74(2).

The scope of judicial review of appointment of Judges was limited to two grounds: ,(1) there is no full and effective consultation between the Central Government and the appropriate authorities; and (2) the decision was based on irrelevant grounds. As a result, the ultimate power to appoint Judges was vested with the executive till 1992.

A major shift in the power of appointment of Judges took place in 1992. In Supreme Court Advocates-on-Record Assn. v. Union of India,92 a nine-Judge Bench of the Supreme Court by a 7:2 majority overruled its earlier judgment in Judges Transfer case i.e.S.P. Gupta v. Union of India93 and held that the Chief Justice of India should have primacy in the matter of appointment of the Judges of the Supreme Court and the High Courts. The view of the Chief Justice of India was to be formed after taking into account the views of two seniormost Judges of the Supreme Court. It was also clarified that the Chief Justice was to be appointed on the basis of seniority. The selection should be made as a result of a participatory consultative process in which the executive had only a limited role to act as a mere check on the exercise of power by the Chief Justice of India. As a result of this judgment the discretion conferred upon the executive and the Chief Justice of India was reduced. It is held as follows:94

  1. … Thus, the executive element in the appointment process has been reduced to the minimum and any political influence is eliminated. It is for this reason that the word “consultation” instead of “concurrence” was used in the Constitution but that was done merely to indicate that absolute discretion was not given to anyone, not even to Chief Justice of India as an individual, much less to the executive….

Later in 1999 to nullify the recommendations made by the collegium for appointment to Supreme Court, the President sought the advisory opinion of the Supreme Court under Article 143 on the consultation process as laid down in Supreme Court Advocates-on-Record Assn. case95 in 1993. This led to Special Reference No. 1 of 1998, In re.96 A nine-Judge Bench of the Supreme Court widened the scope of the Chief Justice’s consultation process. The expression “consultation” with the Chief Justice of India in Articles 217(1) and 222(1) of the Constitution of India require consultation with a plurality of Judges in the formation of opinion of the Chief Justice of India. The majority held that in regard to appointment of Judges to the Supreme Court under Article 124(2), the Chief Justice of India should consult a collegium of four seniormost Judges of the Supreme Court instead of two. If two Judges give adverse opinion, the Chief Justice should not send the recommendation to the Government. The collegium must include the successive Chief Justice of India. The recommendations of the collegium should be based on a consensus and unless the opinion is in conformity with that of the Chief Justice of India, no recommendation is to be made. In regard to the appointment of Judges of the High Courts, the Supreme Court held that the collegium should consist of the Chief Justice of India and any two seniormost Judges of the Supreme Court. In regard to transfer of High Court Judge, the Court held that in addition to the collegium of four Judges, the Chief Justice of India is required to consult Chief Justice of the two High Courts one from which the Judge was being transferred and the other to which he was given. The Court unanimously held that the recommendations made by the Chief Justice of India with regard to the appointment of Judges to the Supreme Court without following the consultation process are not binding on the Government. Lack of consultation is the only ground on which the appointment of Judges of higher courts can be challenged.

Thus, the primacy of appointment of Judges of the Supreme Court and High Court was completely taken away from the executive and vested in the judiciary. However, the primacy is not vested with the Chief Justice of India but with the collegium of Judges. The expression “Chief Justice of India” in Articles 124(2), 217 and 222 has been replaced by “collegium of Judges”. This has practically reduced the role of the executive to that of a rubber stamp. It is submitted that the language used in Articles 124(2), 217 and 222 does not justify the interpretation given by the Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union of India97 and in Special Reference No. 1 of 1998, In re98.

As the executive had no say in the appointment of Judges, Parliament made an attempt to nullify the above judgment through a constitutional amendment. The 99th constitutional amendment was enacted for this purpose. The Constitution (99th Amendment) Act, 201499 amended Articles 124(2), 127 and 128, 217(1), 222(1), 224, 224-A and 231 of the Constitution. It also inserted Articles 124-A, 124-B and 124-C. As per the amended Article 124(2), every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in Article 124-A. The consultation process envisaged prior to the amendment was dispensed with. The first proviso which provided the consultation with the Chief Justice of India in case of appointment of a Judge other than Chief Justice of India was omitted. Similar amendment was carried out with respect to appointment of High Court Judges. As per the Amendment, a National Judicial Appointments Commission was constituted for selection of Judges to the High Court and Supreme Court.

Article 124-A100 provides:

124-A. National Judicial Appointments Commission.—(1) There shall be a commission to be known as the National Judicial Appointments Commission consisting of the following, namely—

  • the Chief Justice of India, chairperson, ex-officio;
  • two other senior Judges of the Supreme Court next to the Chief Justice of India —members, ex-officio;
  • the union minister in charge of law and justice —member, ex-officio;
  • two eminent persons to be nominated by the Committee consisting of the Prime Minister, the Chief Justice of India and the leader of opposition in the House of the people or where there is no such leader of opposition, then the leader of single largest opposition party in the house of the people —members:

Provided that one of the eminent persons shall be nominated from among the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities or women:

Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for re-nomination.

  • No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defects in the constitution of the Commission.

As per Article 124-B101, the Commission was empowered to recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of the High Courts, recommend transfer of Chief Justices and other Judges of High Court’s from one High Court to any other High Court and ensure that the person recommended is of ability and integrity.

The Constitution Bench of  the Supreme Court by 4:1 majority struck down the 99th Amendment as well as the NJAC Act102 and upheld the collegium system. It was held that clauses (a) and (b) of Article 124-A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary as well as transfer of Chief Justices and Judges, from one High Court to another. Clause (c) which provided for the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member and clause (d) which included two “eminent persons” as members of the NJAC was declared ultra vires the provisions of the Constitution, on the ground of violation of the principle of “independence of the judiciary” as well as, “principle of separation of powers”. Accordingly, clauses (a) to (d) of Article 124-A(1) were set aside and consequently, the entire Constitution (99th Amendment) Act, 2014 was struck down in its entirety, as being ultra vires the provisions of the Constitution.103

However, Jasti Chelameswar, J., the lone dissenting Judge declined to accept that the “primacy of the judiciary” in the appointment of Judges is a basic feature of Constitution. In a separate dissenting judgment, Chelameswar, J. supported NJAC on the ground of transparency and checks and balances.

Thus, the challenge against the 99th constitutional Amendment Act displayed conflict between various basic features such as “principle of separation of powers”, “democracy”, “parliamentary supremacy” and “independence of judiciary”. However, “independence of judiciary” as interpreted by the majority prevailed over the other basic features of the Constitution. Hence the attempt made by Parliament to wrest the power of appointment and transfer of Judges from the judiciary was rendered futile by the Constitution Bench and the same stands completely vested in the judiciary. The “primacy of the judiciary” in the appointment of Judges was neither the intention of the Constitution makers nor can it be derived from the language of Article 124 of the Constitution though it has to a great extent prevent political appointments to higher judiciary.

Justice Kurian Joseph who was part of the Constitution Bench after his retirement expressed regret for his contribution in the NJAC case104.105

The stand-off between the executive and the judiciary continued even after the judgment in NJAC case106over the memorandum of procedure for appointment of Judges. The Judges vacancies in Supreme Court multiplied and it rose to ten by August 2021. Executive insisted on vetoing the recommendation made by the collegium on the ground of national security. Though the Supreme Court did not initially agree with this, later it was given up and the deadlock seems to be cleared. An unprecedented recommendation of nine Judges to the Supreme Court by the collegium was cleared by the President of India within a week and all the nine Judges have been appointed. Similarly collegium recommendations for appointments to the High courts are also fast tracked. It is widely believed that this has been made possible due to the statesmanship of Chief Justice N.V. Ramana.

Constitutional amendment and basic structure

Constitutional amendments touching fundamental rights and judicial review often witnessed direct conflict between the executive and judiciary. The Constitution (1st Amendment) Act, 1951107 inserted Articles 31-A  and 31-B in the Constitution. The validity of the same was challenged before the Supreme Court in Sankari Prasad Singh Deo v. Union of India108 on the ground that the amendment purported to take away the rights conferred by Part III which was prohibited under Article 13(2) and hence was void. The Supreme Court did not accept this contention and drew a distinction between the constituent power and the legislative power of Parliament. It was held that the power to amend the constitution including fundamental rights is contained in Article 368109 and that the word “law” in Article 13(2) includes only an ordinary law made in exercise of the legislative powers and does not include the constitutional amendment which is made in exercise of the constituent power. Thus, in Shankari Prasadcase110 judiciary recognised Parliament’s power to amend the fundamental rights. This was one of the first cases in which judiciary yielded to the legislature in the battle for supremacy.

In C. Golak Nath v. State of Punjab111 while dealing with the validity of Constitution (17th Amendment) Act112 the Supreme Court by a majority of 6:5 overruled its earlier decision in Shankari Prasadcase113 and held that Parliament has no power to amend Part III of the Constitution so as to take away the fundamental rights. The majority led by  Subba Rao, C.J. held that an amendment is a “law” within the meaning of Article 13(2) and therefore if it violates any of the fundamental rights it could be declared void. However, the majority applied the principle of prospective overruling and held that the judgment will have only prospective operation. Thus, Parliament was stripped of its power to amend fundamental rights enshrined in Part III of the Constitution.

However, with a view to overcome the difficulties created by the judgment of the Supreme Court in Golak Nathcase114, Parliament introduced the (24th Amendment) Act115. The Amendment added a new clause (4) to Article 13 which provided that “nothing in this article shall apply to any amendment of this Constitution made under Article 368”. It also added a new clause (3) to Article 368 which provided that nothing in Article 13 shall apply to any amendment made under this article.

The Constitution (25th Amendment) Act, 1971116 added Article 31-C. The first part of Article 31-C provides that no law which is intended to give effect to the directive principles contained in Articles 39(b) and (c) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19. The second part of Article 31-C provided that no law containing a declaration that it is for giving effect to such policy can be called in question on the ground that it does not in fact give effect to such policy. The first part of Article 31-C was upheld in Kesavananda Bharati case117, but the second part of this article which barred judicial scrutiny was struck down as unconstitutional

Parliament passed the 24th and 25th Constitutional Amendment Act, 1971 with a view to nullify the judgment of the Supreme Court in Golak Nathcase118 and to restore its amending power. The validity of the Constitution (24th and 25th Amendment) Act, was challenged before the Supreme Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala119, popularly known as the Fundamental Right’s case. A special Bench of 13 Judges was constituted to hear the case. The Court by a majority of 7:6 overruled  Golak Nath case120.121 The majority held that there are inherent or implied limitations on the amending power of Parliament and Article 368 does not confer power to amend the Constitution so as to damage or destroy the essential or basic features of the Constitution. The minority held that there are no limitations, express or implied on the amending power of Parliament and that the power to amend includes the power to add, alter or repeal any provisions of the Constitution.

Some of the features which were treated as basic features of the Constitution in Kesavananda Bharati122are supremacy of the Constitution, republican and democratic form of Government, sovereignty of the country, secular character of the Constitution, separation of powers between the legislature, the executive and the judiciary, federal character of the Constitution, mandate to build welfare State contained in Part IV, unity and integrity of the nation, essential features of individual freedoms secured to the citizens, etc. However, the list is not exhaustive and it kept on expanding.

The Constitution (39th Amendment) Act, 1975123 enabled the judiciary to put to test the basic structure theory propounded in Kesavananda Bharati124. Parliament enacted this amendment to validate with retrospective effect the election of the then Prime Minister, Mrs Indira Gandhi which was set aside by the Allahabad High Court. Article 329 was amended by inserting clause (4). While striking down the aforesaid Amendment Act the Supreme Court held that rule of law, judicial review, democracy which implies free and fair election, etc. constitute basic features.

The Constitution (42nd Amendment) Act, 1976125 was passed to nullify the judgments of the Supreme Court in Kesavananda Bharati126 and Indira Nehru Gandhi v. Raj Narain127. The Amendment purported to remove the limitation imposed by the Supreme Court on the amending power of Parliament in Kesavananda Bharati case128. The Amendment added two new clauses, namely clauses (4) and (5) to Article 368 of the Constitution. Clause (4) provided that no constitutional amendment (including the provision of Part III) or purporting to have been made under Article 368 whether before or after the amendment of the Constitution (42nd Amendment) Act, 1976 shall be called in any court or any ground. Clause (5) provided that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this article. However, in Minerva Mills Ltd. v. Union of India129the Supreme Court by 4:1 majority struck down clauses (4) and (5) of Article 368 introduced by the 42nd Amendment Act on the ground that the said clauses destroyed the basic structure of the Constitution. The Court reiterated that limited amending power of Parliament, harmony between fundamental rights and directive principles, judicial review, etc. constitute basic features of the Constitution.

The power of judicial review flowing from Articles 226 and 32 of the Constitution forms an integral and essential feature of the Constitution and formed part of its basic structure. It is for this reason the Supreme Court struck down clause (2)(d) of Article 323-A130 and clause (3)(d) of Article 323-B131 which provided for the exclusion of the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 32 of the Constitution as unconstitutional and invalid.132

Independence of judiciary is recognised as the basic feature of the Constitution The 99thConstitutional Amendment Act which was passed to nullify the judgments of the Supreme Court and to dilute the powers of the judiciary in Supreme Court Advocates-on-Record Assn.case133 was therefore struck down.“Basic structure theory” has become an effective tool in the hands of the higher judiciary to keep Parliament under its control.

Any law placed in the 9thSchedule134 after 24-4-1974 when Kesavananda Bharati judgment135 was delivered will be open to challenge. Even though an Act is put in the 9th Schedule by a constitutional amendment, its provisions would still be open to challenge on the ground that they destroy or damage the basic feature of the Constitution.136

Carl Friedrich, in his book “Man and His Government”, compared the Constitution to a living system and not as a mere system of brick and mortar. He observed:137

A Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay, yet the basic structure or pattern remains the same with each of the organs having its proper functions, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alternations. For, it is the characteristics of a system that it perishes when one of its essential component parts is destroyed.

Article 356 of the Constitution

The Constitution makers expressed the hope that Article 356138 will remain a dead letter in the Constitution as there would be no occasion to invoke it. Article 356 provides that if the President on receipt of a report from the Governor of a State or otherwise is satisfied that the situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, he may issue a proclamation assuming the functions of the State Government.

However, contrary to this by 1992 itself this extraordinary power was invoked more than 100 times and by 2020 about 120 times. Article 356 no longer remains a dead letter but is often used as a device to keep the opposition ruled States on tenterhooks. It is perhaps the most abused provision in the Constitution.

Landslide victory by the ruling party in the Lok Sabha elections is often cited as a reason by the Union Executive to dissolve State assemblies ruled by the opposition. In 1977 fresh election to the Lok Sabha was held in which the Congress Party was defeated and Janata party came to power. On the day when Janata party came to power, the Congress Party was in power in various States. In April 1977 Sri Charan Singh, the then Union Home Minister addressed a letter to the Chief ministers of 9 States requesting them to advise the Governors of the respective States to dissolve the State assembly and seek a fresh mandate from the electorate inspite of the fact that they enjoyed majority in the assembly. This was on the ground that the State Legislature no longer reflected the wishes of the electorate. Later, the nine State assemblies were dissolved and President rule was imposed. The States challenged the validity of the directive issued by the Home Minister. A seven-member Bench of the Supreme Court by a unanimous judgment rejected the petition filed by the States and upheld the action of the Centre. The Supreme Court gave a narrow interpretation to Article 356 in State of Rajasthan v. Union of India139.140The Court held that the “satisfaction” under Article 356 is the subjective satisfaction of the President and that it cannot be questioned. Courts cannot formulate much less enforce a convention to regulate the exercise of such an executive power as this is a matter which is exclusively within the domain of the executive. However, a limited judicial review was permitted in holding that if the satisfaction is malafide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it because in that case there would be no satisfaction of the President. Therefore, the initial view was that the scope of judicial review of presidential proclamation under Article 356 was almost nil except where the proclamation was issued malafide or based on wholly irrelevant grounds.

However, in a landmark case a nine-Judge Bench by a majority of 7:2 held in S.R. Bommai v. Union of India141 that the State Legislative Assembly cannot be dissolved merely on the issue of presidential proclamation. The Assembly can be dissolved only after Parliament had ratified the presidential proclamation and till such approval, the President can only suspend the Legislative Assembly. The scope of judicial review was further widened in holding that President’s satisfaction has to be based on objective materials. The Court approved the observation in State of Rajasthancase142 that judicial review will lie against presidential proclamation if the power was exercised mala fide by the President.

Rejecting the contention on behalf of the Union of India that disclosure of reasons and material would amount to disclosure of advice which was expressly barred under Article 74(2) of the Constitution it was observed by Jeevan Reddy and Agrawal, JJ. as follows:143

If and when any action taken by the president in exercise of his functions is questioned in a court of law, it is for the Council of Ministers to justify the same … by disclosing the material which formed the basis of the act. … the material placed before the President by the Minister/council of ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice … even if the material is looked into by/shown to the president, it does not partake the character of the advice.

The Court held that the majority has to be tested on the floor of the house and it cannot be left to the subjective satisfaction of the Governor/President. The majority also held that if the proclamation issued is declared invalid it will be open to the court to restore the dismissed Government to office and revive and reactivate the legislative assembly.

Relying on paras 118 and 119 of Bommai144, the Uttarakhand High Court set aside the presidential proclamation dated 27-3-2016 and the consequent notification imposing President rule in the State of Uttarakhand.  The High Court held that the presidential proclamation was deliberately issued on 27-3-2016 with a view to deprive the Speaker the powers vested in him under the Anti-Defection Act and to deny the petitioner his right to prove majority on the floor of the house. Hence, the High Court concluded that the presidential proclamation was vitiated on the ground of malafides and that it was issued wholly on the basis of the irrelevant grounds. Consequently, the writ petition was allowed quashing the presidential proclamation and restoring the Government which was in power at the relevant time.145

Bommai146 is a check on the gross abuse of power being committed by the executive in dismissing elected Governments in power in the States. . It is also a glaring example as to how abuse of power by the executive contributes to the growth of judicial review.

Very recently in Shivraj Singh Chouhan v. Speaker, M.P.Legislative Assembly147the issue arose as to whether the Governor can convene the Assembly for a floor test during the pendency of the proceedings before the Speaker in relation to the resignation of 22 MLAs of the ruling party. The Supreme Court while allowing the writ petition filed by Shivraj Singh Chouhan and other BJP leaders seeking immediate floor test in the assembly following the resignation of 22 Congress MLAs upheld that the power exercised by the Governor of Madhya Pradesh to convene the Assembly for a floor test. The Bench comprising D. Y. Chandrachud and Hemant Gupta, JJ. held that the Governor can call for floor test when there are reasonable grounds to believe that the Government has lost the confidence of the house. However it was clarified that the power given to the Governor is not to destabilise a Government, and that the exercise of the power is not immune to judicial review. On the issue as to whether the pendency of the proceedings before the Speaker is a valid basis not to have the confidence of the House in the Government, the Bench observed:148

  1. … Nothing prevents the Speaker from taking a decision either on matters of resignation or disqualification despite convening of a trust vote. That the Speaker has not yet done so, is not a ground to defer the convening of a trust vote.

Conclusion

A survey of the judgments rendered by the Supreme Court shows that constitutional interpretations have widened the power of judicial review. Article 21 while granting every person the right to live with basic human dignity heralded a new human rights jurisprudence for the country. The arbitrariness doctrine propounded in Royappa case149 enabled the judiciary to further widen the scope of judicial review over executive and legislative action. The interpretation given to constitutional remedies provided under Articles 32 and 226 widened people’s access to constitutional courts. Popular verdicts increased people’s confidence in judiciary. Public interest litigation converted the higher judiciary into a bosom for all kinds of hopes and fears of men, tempting the judiciary to further expand the power of judicial review. As a result, many a times judiciary has encroached into the field constitutionally delegated to the other wings of the Government. In spite of warnings, unscrupulous litigants rush to the courts to settle scores on others thus abusing the public interest litigation system. It is necessary that this public confidence in judiciary built over decades is maintained without sacrificing constitutional principles. Directive principles are no longer the preserve of the executive. Most of them have been transformed into fundamental rights which has tilted the balance away from the executive. The constitutional function of appointment and transfer of Judges of higher judiciary has been shifted from the executive to the judiciary itself. The gross abuse of power being committed by the executive in dismissing elected Governments in the States has been brought under judicial scrutiny. After Bommai150 it is no longer possible to invoke Article 356 in the opposition ruled States solely based on landslide victory of the ruling party in the Lok Sabha elections. Judiciary has checked the abuse of power by the Executive Heads of both the Centre and the States. However, the interpretation given to Article 356 has bestowed the judiciary with the role of an umpire in electoral politics which truly was not the intention of the Constitution makers.

The fact of the matter is that people repose great faith and confidence in Indian judiciary. Abdication of powers and rampant corruption of the legislature and the executive made it possible for the judiciary to widen its frontiers. Judges made their way into the arena of decision-making delegated to the legislative or executive wings of the Government. Way back in 1980, the Supreme Court held in Francis Coralie Mullincase151 that right to life includes the right to live with basic human dignity. Though ‘right to life” means right to food, shelter, clothing, livelihood, even after 40 years, 30% of the people of our country are still living below the poverty line. Judiciary has neither the purse nor the sword to implement its own orders. It can only shed the light and the problems suffered by the people cannot be solved without the active cooperation of those who are entrusted with the power of governance.


*Advocate, Supreme Court and Delhi High Court. Author can be reached at romychacko@rediffmail.com.

1Constitution of India.

2Constitution of India, Art. 21.

3AIR 1950 SC 27.

4(1978) 1 SCC 248.

5AIR 1950 SC 27.

6(1978) 1 SCC 248.

7AIR 1950 SC 27.

8Maneka Gandhi v. Union of India, (1978) 1 SCC 248, 280.

9Constitution of India, Art. 19.

10AIR 1950 SC 27.

11(1978) 4 SCC 494.

12(1970) 1 SCC 248.

13(1978) 1 SCC 248.

14(1978) 1 SCC 248.

15Constitution of India, Art. 14.

16(1978) 1 SCC 248.

17(1981)1 SCC 608.

18(2017) 10 SCC 1, para 150.

19(1976) 2 SCC 521.

20(1976) 2 SCC 521.

21Constitution (44th Amendment) Act, 1978.

22(2017) 10 SCC 1.

23(1978) 1 SCC 248.

24(2017) 10 SCC 1.

25(1974) 4 SCC 3.

26E.P. Royappa v. State of T.N., (1974) 4 SCC 3, 38.

27(1974) 4 SCC 3.

28H.M. Seervai, Constitutional Law of India, (3rd Edn.) Vol. 1, p. 275.

29(1978) 1 SCC 248.

30(1974) 4 SCC 3.

31(1978) 1 SCC 248, 283.

32(1979) 3 SCC 489.

33(1978) 1 SCC 248.

34(1983) 2 SCC 277.

35Penal Code, 1860, S. 303.

36(1983) 2 SCC 277.

37(1978) 4 SCC 494.

38(1996) 3 SCC 709.

39(2017) 9 SCC 1.

40(1996) 3 SCC 709.

41(1978) 1 SCC 248.

42(2014) 9 SCC 737.

43(1983) 2 SCC 277.

44(1996) 3 SCC 709.

45(1983) 2 SCC 277.

46(1983) 2 SCC 277.

47(1983) 2 SCC 277.

48(2017) 9 SCC 1.

49Constitution of India, Art. 32.

50Constitution of India, Art. 226.

51S.P. Gupta v. Union of India, 1981 Supp SCC 87.

52S.P. Gupta v. Union of India, 1981 Supp SCC 87.

53(1984) 3 SCC 161.

54(1992) 4 SCC 305.

551981 Supp SCC 87.

56 (2004) 3 SCC 349.

57(1984) 3 SCC 161.

58(1997) 1 SCC 416.

59(1993) 2 SCC 746.

60(1997) 1 SCC 416.

61(2015) 14 SCC 664.

62(1997) 1 SCC 416.

63See Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

64AIR 1951 SC 226.

65AIR 1958 SC 956.

66(1973) 4 SCC 225.

67D.D. Basu, Shorter Constitution of India, (2nd Edn.) 298-299.

68Constitution of India, Art. 39(d).

69Constitution of India, Art. 39(e).

70Constitution of India, Art. 45.

71Constitution of India, Art. 42.

72Constitution of India, Art. 39-A.

73Constitution of India, Art. 41.

74Constitution of India, Art. 48-A.

75(1992) 3 SCC 666.

76(1993) 1 SCC 645.

77Constitution (86th Amendment) Act, 2002.

78Constitution of India, Art. 105.

79Constitution of India, Art. 194.

80Powers, Privileges and Immunities of State Legislature, In re, AIR 1965 SC 745.

81Constitution of India, Art. 143.

82Powers, Privileges and Immunities of State Legislature, In re, AIR 1965 SC 745.

83Constitution of India, Sch. 10, Para 7.

841992 Supp (2) SCC 651.

85Constitution of India, Art. 124(2).

86(1973) 4 SCC 225.

87(1977) 4 SCC 193.

881981 Supp SCC 87.

89Constitution of India, Art. 217.

90Constitution of India, Art. 222.

91Constitution of India, Art. 74(2).

92(1993) 4 SCC 441.

931981 Supp SCC 87.

94(1993) 3 SCC 441, 693.

95(1993) 4 SCC 441.

96(1998) 7 SCC 739.

97(1993) 4 SCC 441.

98(1998) 7 SCC 739.

99Constitution (99th Amendment) Act, 2014.

100Constitution of India, Art. 124-A.

101Constitution of India, Art. 124-B.

102National Judicial Appointments Commission Act, 2014.

103Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

104Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

105Speech by Justice Kurian Joseph at inaugural address of the Seminar on the topic ‘Challenges faced by the Indian Constitution in the Present Era’ at the 13th National Conference of All-India Lawyers Union (AILU) held at Kochi.

106Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

107Constitution (1st Amendment) Act, 1951.

108AIR 1951 SC 458.

109Constitution of India, Art. 368.

110AIR 1951 SC 458.

111AIR 1967 SC 1643.

112Constitution (17th Amendment) Act, 1964.

113AIR 1951 SC 458.

114AIR 1967 SC 1643.

115Constitution (24th Amendment) Act, 1971.

116Constitution (25th Amendment) Act, 1971.

117(1973) 4 SCC 225.

118AIR 1967 SC 1643.

119(1973) 4 SCC 225.

120AIR 1967 SC 1643.

121Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225.

122(1973) 4 SCC 225.

123Constitution (39th Amendment) Act, 1975.

124(1973) 4 SCC 225.

125Constitution (42nd Amendment) Act, 1976.

126(1973) 4 SCC 225.

127(1975) 2 SCC 159.

128(1973) 4 SCC 225.

129(1980) 3 SCC 625.

130Constitution of India, Art. 323-A.

131Constitution of India, Art. 323-B.

132L. Chandra Kumarv.  Union of India, (1997) 3 SCC 261.

133(1993) 4 SCC 441.

134Constitution of India, Sch. 9.

135(1973) 4 SCC 225.

136I.R. Coelho v. State of T.N., (2007) 2 SCC 1.

137Friedrich, Carl J., Man and His Government, McGraw-Hill Book Company Inc., 1963.

138Constitution of India, Art. 356.

139(1977) 3 SCC 592.

140I.R. Coelho v. State of T.N., (2007) 2 SCC 1.

141(1994) 3 SCC 1.

142(1977) 3 SCC 592.

143S.R. Bommai v. Union of India, (1994) 3 SCC 1.

144(1994) 3 SCC 1.

145Harish Chandra Singh Rawat v. Union of India, 2016 SCC OnLine Utt 502.

146(1994) 3 SCC 1.

1472020 SCC OnLine SC 486.

148 Shivraj Singh Chouhan v. Speaker, M.P. Legislative Assembly, (2020) 17 SCC 1, 53.

149(1974) 4 SCC 3.

150(1994) 3 SCC 1.

151(1981) 1 SCC 608.

Madras High Court
Case BriefsHigh Courts

Madras High Court: The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

Petitioner sought for quashing the impugned order in which her services as Special Public Prosecutor was terminated with immediate effect.

According to the petitioner, she was sincere and hardworking and out of 439 cases disposed, she was instrumental in ensuring conviction and severe punishments in 16 cases which was widely appreciated by the Police, Bench and Bar. However, according to her an anonymous complaint against her casting aspersions on her honesty and integrity was taken cognizance by the then-District Collector (2nd respondent).

On the report of the Superintendent of Police (3rd respondent) and the District Collectors’ findings, the State Government (1st respondent) terminated the services of petitioner, which according to the petitioner was unjust and unreasonable.

High Court’s Findings

Bench noted that there were allegations of corruption made against the petitioner which were true and that she had also misused her position by extracting menial work from the police constables on Court duty. Earlier, a ‘road roko’ agitation by the Advocates in order to remove the petitioner from her post also occurred.

It was further found that in a POCSO case, the petitioner had received illegal gratification from the accused and ensured their acquittal on flimsy grounds was referred to by the District Collector.

Amongst a few letters against the petitioner, in one of the letters, there was mention of the corrupt practices of the petitioner and how she had tried to convince the victim and their parents in the POCSO case to compromise with the accused by receiving compensation.

A famous quote is “truth is like the sun. You can shut it out for a time, but it ain’t going away.” 

High Court stated that,

Every Advocate is a Court officer and part and parcel of the justice delivery system. The public reposes great faith in the judiciary but the judges have to rely on their pillars, the advocates.

Bench found from the records that the petitioner had been demanding bribes and acted like an extra-constitutional authority attempting to fix up compromises in serious cases of offence and this caused a serious dent in the justice delivery system.

Lastly, the Court found no violation of natural justice nor any fundamental rights.

Therefore, in view of the above, a petition was dismissed. [Dhanalakshmi v. State, 2022 SCC OnLine Mad 1275, decided on 22-3-2022]


Advocates before the Court:

For Appellant: Mr P. Subba Reddy

For Respondents: Mrs V.Y amuna Devi Special Government Pleader

Op EdsOP. ED.

Introduction

The transfer of Judges from one High Court to another High Court is an integral part of the administrative functioning of the judiciary under the Constitution.[1] The factor of minimising or eliminating the local influences or providing the benefit of competence in other jurisdictions justifies the provision of transfer of Judges. Besides, the consideration of transfer arises from the style or quality of work of Judges which relates to correcting or disciplining Judges. Thus, the decision to transfer a Judge attracts debate on the propriety of the decision-making process of the collegium.[2] However, it has been observed that the transfer of a Judge to the High Courts of north-eastern States has generally been viewed as a punitive decision of the collegium. Though the need to disclose the reason to transfer Judges is desirable, the “patterned” criticism of such transfers raises the question of the status of the High Courts of the north-eastern regions. In recent times, it has been observed that the transfer of the Judges to the States in the north-eastern regions is seen as a constitutional impropriety and compromising judicial independence. In the write-up, the author argues that the uproar on the issue of transfer is misplaced and dilutes the idea of a uniform judicial system envisaged under the Constitution. The paper refers to the salient process of the integration of the north-eastern regions in the country to highlight that the cultural/indigenous attributes of seven States do not confer the inferior status to the State-level judiciary. Further, it described the constitutional scheme of transfers and justifies the practice of the transfer in the interest of knowledge transfer and to eliminate local prejudices. In conclusion, it suggests that the transfer of Judges to the High Courts of the north-eastern States is in alignment with the constitutional scheme of a unified legal system.

Integration of North-Eastern States: A Glance

During the colonial period, north-eastern regions such as Assam Province, were ruled under British Empire as directly governed and excluded regions. Indigenous ethnic groups were enjoying autonomy in the excluded areas.[3] The colonial rulers followed the policy of separation and isolation for governing the north-eastern part of the country. The last Governor General, Mountbatten, decided to integrate Assam and the north-east to independent India. Arunachal Pradesh, Mizoram, Nagaland, and Meghalaya had branched out from the State of Assam. The Princely States of Manipur and Tripura also decided for a merger with India in 1949 and were admitted as specially administered regions under the control of the Central Government before getting the status of a full-fledged State. Sikkim, being a protectorate State in 1947, became a part of India as a State in 1975.[4] Under the Constitution, a part of the “tribal” regions are to be governed by the Governor of Assam as an agent of the President of India. Eight States in the north-eastern part of the country enjoy distinctiveness in governance, culture, and tradition. The historical uniqueness of these States is truly accommodated in the asymmetrical federal structure adopted by the framers of the Constitution. The demand to acknowledge the identity of the indigenous culture and to urge for more autonomy by the people of these regions led to the creation of separate States. The separate States were created to fulfil the aspiration of nationhood and to quell the separatist tendency of the political organisations of the regions. Consequently, the Sixth Schedule to the Constitution has accommodated the divergent features of the regions and granted a desirable autonomy in the matter of allotment, occupation, and use of land, management of forest, administration of justice, inheritance of property, control of money lending, trading by non-tribals, etc. The brief description of the integration process clarifies that the concessions given to the people of the region are not related to the power and functions of the High Courts of these regions.

The High Court is an important institution entrusted with the task to adjudicate legal disputes and enforcing the rights enshrined under the Constitution. The Constitution provides for a High Court in each State.[5] Though it is desirable to establish a High Court for each State, Parliament may establish a common High Court for two or more States or two or more States and a Union territory.[6]A common High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram, and Arunachal Pradesh were in existence until 2013. In March 2013, the separate High Courts in Meghalaya, Tripura, and Manipur came into being whereas Nagaland, Mizoram, and Arunachal Pradesh continue to have permanent Benches of Gauhati High Court.[7] Supposedly, the common High Court was envisaged for administrative reasons. Undisputedly, the High Court either for an individual State or more than one State conferred with the sacrosanct and honourable status, regardless of the location, under the Constitution.

The strength of the Judges in each High Court of the region may be a reason of dismay to the Judges transferred from other States.[8]Arguably, the number on the Bench relates to the administrative prowess of the Chief Justice. Perhaps, this may be a factor in not criticising the transfer to Gauhati High Court. However, the statistics on the pending cases in the High Courts do indicate enough workload for the Judges of these High Courts.[9] Also, it is to be noted that the Bar of the region has given a President to the Republic of India, and the Chief Justice from the High Courts also get elevated to the Supreme Court.[10]

Transfer of Judges of the High Court: Constitutional narrative

The Government of India Act, 1935 was having no provision on the transfer of the Judges. Consequently, the reference of the transfer was missing in the initial draft of the Constitution framed by the makers of the Constitution. The provision, presently Article 222, was introduced at the final revision stage of the draft Constitution in November 1949. Dr Ambedkar justified the provision because it would import the services of “better talent” in the Court which is not locally available and it would eliminate the influence of local politics in the justice-delivery system.[11] The idea of benefitting provinces with “better talent” on the Bench was supplemented by the argument of national integration in the Report of States Reorganisation Commission, 1955 wherein it was recommended that at least “one-third of the number of Judges in a High Court should consist of persons who are recruited from outside the Court”.[12]

The clear stipulation of the provision on transfer under the Constitution extends legitimacy to the relocation of serving Judges from one High Court to another. However, the manner of transfer has been debated on the grounds of the “consent” of the affected Judge or a measure to “penalise” the erring Judge.[13] The Supreme Court has also reaffirmed the constitutional scheme of the transfer of the Judges. It also observed that consent is not a prerequisite[14] and the primacy shall be of the collegium in the matter of transfer.[15]

If at all the transfer is to be criticised then it should be for non-transparency in recommending the transfer. The regional location of a High Court should not a reason to criticise the decision of the collegium.[16] In the pursuit to build a transparent and accountable collegium system, let there be no alienation of “the idea of India” by members of the Bench.

Summing up

Giving stigma to every transfer of a Judge to the High Courts of the north-eastern States does not augur well for the judicial system envisaged in the Constitution. The High Courts enjoy similar power in the matter of enforcement of the rights and wider power in the matter of supervisory jurisdiction over the subordinate judiciary. The Judges of the High Courts, including the Chief Justice, play a pivotal role in maintaining rule of law and upholding constitutional values. Therefore, it is expected that the Judges who are being transferred to the north-eastern States must proactively dispel the cloud of prejudices reported in all kinds of media and desist from prioritising some High Courts over the other to provide their valuable services. Having the solemn duty to defend the honour of the High Court, the Judges do have a right to know the reason for transfer from one High Court to another. The collegium must explicitly publicise the reason so that validation can be done against the intent of the makers on the constitutional scheme of promoting the administration of justice ingrained in the provision of transfer.


*Registrar and Professor, Hidayatullah National Law University, Raipur; Associate Professor of Law (on lien), Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur. Author can be reached at uday@hnlu.ac.in; shankarudaymishra@gmail.com.

[1]Constitution of India, Art. 222 reads as the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

[2]Before the Second Judges’ case (Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441), the primacy in the decision related to the transfer of a High Court was of the Central Government.

[3]The excluded areas were north frontier districts, Naga Hill Districts, Lushai Districts, and North Cachar Hills Sub-division. There was a limited representative system given under the British administrative control.

[4]Kyoko Inoue, Integration of North East: The State Formation Process,  <https://www.ide.go.jp/library/English/Publish/Reports/Jrp/pdf/133_3.pdf> (visited on 29-12-2021).

[5]Constitution of India, Art. 214.

[6]Constitution of India, Art. 231.

[7]There has been the demand to establish a separate High Court in the State of Nagaland (see, <https://easternmirrornagaland.com/no-infrastructure-no-nagaland-high-court-says-law-minister/>).

[8] Meghalaya High Court has three Judges including the Chief Justice; Manipur High Court has five Judges including the Chief Justice; Tripura High Court has five Judges including the Chief Justice; Gauhati High Court has 23 Judges including the Chief Justice; Kohima Bench has three Judges, Aizawl Bench has  two Judges and Itanagar Bench has two Judges.

[9]Total pending cases in Manipur is 10,876; Meghalaya is 12,317; Mizoram 4969; Nagaland 2213; Assam 3,56,132; and Tripura 33,523.

[10]<http://meghalayahighcourt.nic.in/index.php/history>, Shillong Bar Association is one of the oldest Bar Associations established in 1913. A member of the Bar, F.A. Ali Ahmed served as the fifth President of India.

[11] Constituent Assembly Debates, Vol. XI.

[12] Report of States Reorganisation Commission, 1955, p. 261.

[13]A.G. Noorani, Transfer of High Court Judges, Economic and Political Weekly, Vol. 11, No. 19, pp. 685-687.

[14]Sankalchand.

[15]Supreme Court Advocates-on-Record Assn. v. Union of India, (1993)4 SCC 441; Special Reference No. 1 of 1998, In re,(1998)7 SCC 739.

[16]To indicate a few instances, Chief Justice of Madras High Court, Justice Vijaya Tahilramani, resigned after being transferred to Meghalaya High Court; criticism of transfers of Justice Akil Abdulhamid Kureshi to Tripura High Court as a Chief Justice was criticised and Chief Justice Sanjib Banerjee to Meghalaya High Court.

Case BriefsHigh Courts

Andhra Pradesh High Court: Cheekathi Manavendranath Roy J. dismissed the criminal petition and granted bail to the accused advocates and denied bail to accused software engineer.

The facts of the case are such that several persons have posted comments in the social media like Facebook, Twitter, YouTube etc., making certain wild and reckless allegations against the High Court and Judges of the High Court and the Judges of the Supreme Court with certain aspersions relating to the Judgments delivered by the Judges of the High Court and thereby that they indulged in the acts of bringing down the image of the judiciary and the High Court in the estimation of the members of the society, about 12 crimes were registered by the C.I.D., Amaravati. A case under Sections 153A, 504, 505(2), 506 of the Indian Penal Code, 1860 and under Section 67 of the Information Technology Act, 2000, was registered against the Petitioners. These three criminal petitions under Section 439 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”), are filed to enlarge the petitioners on bail.

The court observed that both A-18 and A- 19 who are advocates by profession have in writing tendered unconditional apology to the High Court and requested to drop the proceedings against them. The Court has accepted the said apology and closed the contempt proceedings. Additionally, as the major part of investigation relating to the role played by A-18 and A-19 is concerned, has been completed, thus, A-18 and A-19 are entitled to bail.

The Court further observed that as regards the petitioner/A-20 is concerned, he tendering unconditional apology in the contempt proceedings is pending for consideration. The High Court did not accept the same and did not close the contempt proceedings against him. Therefore, he is not similarly placed with A-18 and A-19. Further, the comment that was posted by him in the social media is of serious nature which got effect of bringing down the image of judiciary and the High Court and Judges in the estimation of the members of the society. He being an educated man and Software Engineer is not justified in making such irresponsible comments against the Judiciary and the High Court. Therefore, as his request to accept his apology is still pending before the High Court and as investigation in this case is pending against him, this Court is not inclined to enlarge A-20 on bail at this stage.

The Court thus held “The petitioners, who are A-18 and A-19 are ordered to be enlarged on bail on execution of self bond for Rs.50,000/- (Rupees fifty thousand only) each with two sureties for a like sum each to the satisfaction of IV Additional Junior Civil Judge, Guntur.”

[Gopala Krishna Kalanidhi v. State of Andhra Pradesh, 2022 SCC OnLine AP 419, decided on 25-02-2022]


Arunima Bose, Editorial Assistant has reported this brief.

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


Lawyers Voice v. State of Punjab, 2022 SCC OnLine SC 42

After a massive security lapse that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has observed that the matter cannot be left to be resolved through one-sided enquiries and a judicially trained independent mind, duly assisted by officers who are well acquainted   with the security considerations and the Registrar General of the High Court who has seized the record,   would be best placed to effectively visit all issues and submit a comprehensive report. The Court, hence, formed a committee to be chaired by Justice Indu Malhotra, former Supreme Court Judges.

Read More…


 Parvati Devi v. State of Bihar, 2021 SCC OnLine SC 1285

Despite a slipshod investigation in a case, the 3-judge bench of NV Ramana, Surya Kant and Hima Kohli*, JJ has upheld the conviction of a man guilty of killing his wife within a few months of the marriage on her failing to satisfy the demands of dowry. The deceased Fulwa Devi had gone missing from her matrimonial home and her body was found on the bank of river Barakar after a week.

Read More…


N. Raghavender v. State of A.P., 2021 SCC OnLine SC 1232

The 3-Judge Bench of N.V. Ramana, CJ., Surya Kant* and Hima Kohli, JJ., held that the Bank is not the trustee of the money that a customer deposits in a bank and the same is not held by the former on trust for him. The money so deposited becomes a part of the banker’s funds who is under a contractual obligation to pay the sum deposited by a customer to him on demand with the agreed rate of interest. Such a relationship between the customer and the Bank is one of a creditor and a debtor.

Read More…


 Ravindra Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293

In a case where the CRPF had initiated disciplinary proceeding against a person with a medical history of obsessive compulsive disorder  and depression and has been undergoing treatment for the same since 2009, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination as such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings.

“…while the stigma and discrimination against persons with mental health disorders are rampant in society, as the highest constitutional court of the country, it falls upon us to ensure that societal discrimination does not translate into legal discrimination.”

Read More…


Citizens for Green Doon v. Union of India, 2021 SCC OnLine SC 1243

The 3-jude-bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has asked the Government to make a significant alteration in the approach to Chardham Mahamarg Vikas Pariyojna by adopting sustainable measures in line with High Powered Committee’s recommendations and has said that,

“Piecemeal implementation of some mitigation measures for protection of the environment, without any concrete strategy in place, cannot pass muster.”

Read More…


Surinder Singh v. State, 2021 SCC OnLine SC 1135

Explaining the principles of sentencing policy, the 3-judge bench of NV Ramana, CJ and Surya Kant* and AS Bopanna, JJ has held that while there are practical difficulties in achieving absolute consistency in regards to sentencing, the awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence.

Read More…

Explained| Is ‘motive’ an indispensable ingredient for proving the charge of attempt to murder? | Read More…


 Bijendar v. State of Haryana, 2021 SCC OnLine SC 1028

In a case where the Trial Court and Punjab and Haryana High Court had shifted the burden of proof on the accused merely for the reason that there has been a rise in the incidents of dacoity, the 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has held that the Trial Court and the High Court have erroneously drawn adverse inference against the accused, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the accused.

“It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are oftenly reluctant to speak truth due to fear or other extraneous reasons.”

Read More…


Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985

The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, here’s why it eventually decided to step in.

Read More…

Explained| Can proceeding under SC/ST Act be quashed on the basis of compromise between accused and victim? | Read More…


 State of M.P. v. Mahendra, 2021 SCC OnLine SC 965

In a case where the accused had lured minor girls aged 8 and 9, took them inside the room, closed the doors and rubbed his genitals against those of the victims, the bench of Surya Kant* and Hima Kohli, JJ has held that these acts were deliberately done with manifest intention to commit the offence of rape and were reasonably proximate to the consummation of the offence.

The Court held that since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, he was guilty of attempting to commit rape as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence. The incident dates back to the year 2005.

Read More…


Vipin Kumar Dhir v. State of Punjab,  2021 SCC OnLine SC 854

The 3-judge bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has explained the principles governing cancellation of bail and has held that it is necessary that ‘cogent and overwhelming reasons’ are present for the cancellation of bail.

“Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non-conducive to fair trial, making it necessary to cancel the bail.”

Read More…


PLR Projects (P) Ltd v. Mahanadi Coalfields Ltd., 2021 SCC OnLine SC 332

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.

Read More…


Kalamani Tex v. P. Balasubramanian, 2021 SCC OnLine SC 75

The 3-Judge Bench comprising of N.V. Ramana, Surya Kant* and Aniruddha Bose, JJ., upheld the judgement of High Court of Judicature at Madras, whereby the order of acquittal of the Judicial Magistrate was reversed and the appellants had been convicted under Section 138 of the NIA, 1881. The Bench expressed,

“Once the appellant 2 had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt.”

Read More…


Union of India v. K.A. Najeeb, 2021 SCC OnLine SC 50

The 3-judge bench of NV Ramana, Surya Kant* and Anirudhha Bose, JJ  has refused to interfere with the bail granted by Kerala High Court to KA Najeeb arrested under the Unlawful Activities (Prevention) Act, 1967 but has imposed the condition that Najeeb shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. He shall also refrain from participating in any activity which might enrage communal sentiments.

“In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith.”

Read More…


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

Legal RoundUpSupreme Court Roundups

Year 2021! The year that started with the hope of the COVID-19 Pandemic nearing an end with countries starting vaccination, ended up becoming deadlier than the year gone by. A year of losses for many, 2021 was also the year when the Supreme Court judges lost one of their own. Justice MM Shantanagoudar, a sitting judge of the Supreme Court, breathed his last on April 24, 2021.

Read: The Judicial Legacy of Justice MM Shantanagoudar

As the Nation was crippled with hardship and adversity, the Supreme Court refused to bog down and went on to deliver 865 judgments, which is a lot more than the number of judgments delivered in the 2020.

The year also witnessed the appointment of 9 judges, including 3 women judges and if all goes well, Justice BV Nagarathna, might take oath as the first woman Chief Justice of India in 2027!  Read more…

5 judges, including the former CJI Justice SA Bobde, retired. Justice NV Ramana took oath as the 48th Chief Justice of India. Read more…

Also read:

·        Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19

·        A Winner All Along – Justice Indu Malhotra

·        Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

·        A Multifaceted Expert — Justice Rohinton Fali Nariman

·        A Champion who applied technology to optimize human potential and capabilities – Justice Navin Sinha

Let’s go through the most important of the 865 judgments delivered by the Supreme Court in the year 2021. 

CONSTITUTION BENCH VERDICTS

Only 3 Constitution Bench judgments were delivered in the year 2021. Read all about them here.


THE MOST TALKED ABOUT CASES

Central Vista Project

The year began with the Supreme Court giving a go-ahead to the Central Vista Project in a 2:1 verdict. While the majority found itself compelled to wonder if it can dictate the government to desist from spending money on one project and instead use it for something else, Justice Khanna, in his dissenting opinion, observed that citizens have the right to know and participate in deliberation and decision making. [Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7]

Read: Supreme Court gives a go-ahead to Central Vista Project in a 2:1 verdict

Also read: Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Farm Bill and Farmer Protest

While the repeal of the Farm laws came at the fag end of the year, the Supreme Court stayed the implementation of these Laws right in the beginning of the year after noticing that despite the peaceful protest, a few deaths had already taken place as Senior Citizens, youth and children were exposing themselves to not just the cold weather but also to COVID-19. [Rakesh Vaishanv v. Union of India,  (2021) 1 SCC 590]

Read: Supreme Court stays implementation of Farm Laws

Also read: Farmer Protests| Shashi Tharoor and 6 journalists not to be arrested for now over tweets on protester’s death during Republic Day Tractor Rally

Here’s a list of some more unmissable high-profile cases:


THE WAY FORWARD

The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.

Nitisha v. Union of India

2021 SCC OnLine SC 261

In 2021, the Supreme Court showed the way forward by giving many progressive orders/judgments. One of the top stories from the year 2021 was where the Court said that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch was arbitrary and irrational.

In another important ruling, before taking the oath as the Chief Justice of India, Justice NV Ramana noticed that 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. He added that the issue of fixing notional income for a homemaker, therefore, served extremely important functions.

Here is the list of all the judgments that take us as a nation a step forward:


SEDITION AND FREE SPEECH

By way of a series of judgments and orders on free speech, the Supreme made clear that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries.

In a big move, the Supreme Court also agreed to decide the constitutionality of Section 124A IPC after it was submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 required reconsideration. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Read everything here:


IBC – THE IMPERFECT LAW?

While stating that “there is nothing like a perfect law and as with all human institutions, there are bound to be imperfections”, the Supreme Court, in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. [Manish Kumar v. Union of India,  (2021) 5 SCC 1]

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

This judgment was followed by a series of judgments and orders on IBC. Check out the list below to read more:


RIGHTS OF PERSONS WITH DISABILITIES

“In their blooming and blossoming, we all bloom and blossom.”

Vikash Kumar v. Union Public Service Commission,

(2021) 5 SCC 370

This year witnessed many Supreme Court Judgments and orders on the Rights of Persons with Disabilities.

Check out this list to know more:


DEMOCRACY AND TRANSPERANCY

No-one is above law; this was the Supreme Court message as it stressed on importance of transparency by Political Parties and Government Institutions.

Read here:


THE CONSTITUTIONAL RIGHT TO PROPERTY

In a case where State took possession of surplus land in absence of surplus land, this Supreme Court’s verdict served as a reminder that right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27]

Read: Right to property is still a constitutional right under Article 300A of the Constitution


WHEN A CONSTITUTIONAL AMENDMENT WAS STRUCK DOWN

In a rare move, the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B was ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. [Union of India v. Rajendra N. Shah2021 SCC OnLine SC 474]

Read: Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC


THE “EVEN MORE DESERVING PARTIES”

Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

The Court observed that the parties agreeing to out-of-court settlement are “even more deserving”. [High Court of Madras v. MC Subramaniam(2021) 3 SCC 560]

Read: Parties agreeing to out-of-court settlement without judicial intervention under Section 89 CPC can’t be denied benefit of refund of court fees


BANKS AND BANKING

While the Constitution bench looked down upon the “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial and directed that the magistrates “must” record reasons, many other important decisions were given in 2021.

Read here: 


CONSUMER PROTECTION

The Supreme Court took cognizance of Government’s lackadaisical attitude towards consumer empowerment and observed that the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaint.

Here are the important rulings on Consumer Protection that you cannot miss:


FROM “DEATH” TO “LIFE”

In 3 cases, the Supreme Court commuted the death sentences of the convicts to Life Imprisonment and in one case, 3 death row convicts were acquitted of all charges.

Read here:


MOTOR ACCIDENTS CLAIMS

Read how a one-stop online platform for all parties involved and Motor Vehicle Appellant Tribunals will help in achieving a hassle free disposal of Motor Vehicle Accident claims:


ARBITRATION

No year goes by without the Supreme Court delivering some important ruling on Arbitration and the year 2021 was no different.

Read the updates here:


A GUIDE FOR THE BENCH!

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

Krishna Lal Chawla v. State of U.P.,

2021 SCC OnLine SC 191

In 2021, the Court also delivered a number of judgments on the issues of pendency of cases, judicial vacancies and overall standard to be followed by the members of bench while dealing with case.

Read all about these judgments here:


COVID-19

As the second wave of COVID-19 brought the nation to its knees, the Supreme Court did everything in it’s power to ensure that the loss is minimized.

Read all the important judgments here:

Experts CornerMurali Neelakantan

Judicial pendency is by now an issue that is both familiar and pressing not just to the legal community, but to broader society as well. That India’s growth and well-being is being held back at least in part due to a sclerotic legal system is well known, but it bears repeated highlighting for precisely this reason.

 

With the recent Constitution Day speeches and annual celebrations, a lot is said about how the Constitution promised justice but the institutions that the Constitution created have failed to deliver on that promise. A recent column in a national newspaper recently made the point that litigants and lawyers (at least on one side of a civil case) have no incentive to finish a case as fast as possible. The column went on to ask if the judiciary itself has an incentive to speedily dispense with cases. Given that one of us is a lawyer and the other an economist, this is a sentence that piqued both our interests. In what follows we attempt to answer this question from both perspectives – economic as well as legal.

 

Many litigants and lawyers have very little incentive to have the dispute resolved quickly – this much is obvious. Interminable delays, repeated hearings and a seemingly endless parade of injunctions and appeals serve two (iniquitous) purposes: on the one hand, they ensure that justice is not speedily delivered and one party to the litigation benefits from status quo, and on the other, there is an increased chance that the other party may quite simply give up. There are examples of cases that wound their way through India’s legal system for over five decades, and may still have to wait for a final resolution. That, alas, is more the rule than the exception.

 

But the other question is the truly interesting one: does the judiciary have an incentive to resolve disputes efficiently? This is the exact opposite of a throwaway question, and our contention in (and our reason for writing) this is that the judiciary does in fact have the tools to negate the perverse incentives that invariably attach themselves to “at least one side of a civil case”.

 

There is, in our legal system[1], just as it is in all other civilised legal systems, sufficient provisioning to ensure that frivolous litigation is minimised. What, one may ask, is frivolous litigation? Not only is it a fair question, but it is a question on which the legal system in India has expended a fair amount of effort and time. As things stand our legal system defines frivolous litigation to be one that “has no merits whatsoever and is intended to harass the defendant or is an abuse of the process of the court”.

 

We do not just define it, we have specific provisions against frivolous litigation in the Civil Procedure Code, 1908. Order 6 Rule 16 allows, for the striking out of pleadings which, among other things, may be “unnecessary, scandalous, frivolous or vexatious”. Similarly, Order 7 Rule 1 requires that the case terminates at the threshold when the plaint does not make out a case. On a related note, Section 35-A explicitly provides for compensatory costs in respect of false or vexatious claims or defences.

 

Each of these provisions exist so that frivolous litigation is either minimised, or failing which, it is adequately penalised. In other words, there are specific, negative incentives in place to deter frivolous litigation that is designed to simply tarry the delivery of speedy justice.

 

India is, of course, not unique in having these incentives in place. We are, however, unfortunately guilty of not using these incentives as much as we perhaps should. We have ended up both creating and perpetuating a culture in which frivolous litigation has become the norm, rather than the exception. And even more unfortunately, this has since metastasised into a range of related problems – the abuse of special leave petitions being only one of them, public interest litigation being another, not to mention the cases of personal liberty and important constitutional issues being deprioritised.

 

The judiciary may not have any incentives but, as it turns out, it does indeed have the tools in place to ensure that litigants do not exploit the system. The fact that these tools are not used as much as they could be is inescapable and is perhaps a reason for the current state of justice in India.

 

The questions that remain, then, are the following: why is this the case? Why does the judiciary not have any incentives to use these tools to deliver justice? Does the fault lie with our legal system, or with us as a society? One of us has written about this in the book – An Idea of a Law School, Ideas from the Law School (2019). How might change be brought about, and should the impetus come from us in society, or from the judicial system?

 

The answer, we think, lies in taking a long hard look at ourselves in the mirror.

And in that case, we fear, no incentive exists.

 


Murali Neelakantan is the principal lawyer at amicus. He was formerly global general counsel at Cipla and global general counsel and executive director at Glenmark.

†† Ashish Kulkarni teaches courses in economics and statistics at the Gokhale Institute of Politics and Economics, Pune, and blogs at econforeverybody.com 

 

[1] See Law Commission of India — Report No. 192- Prevention of Vexatious Litigation (June, 2005).

Op EdsOP. ED.

Introduction: The brutality faced by the community

India in the 21st century claims to be striving for gender equality and gender neutrality, yet the judiciary still fails to acknowledge and take into consideration “gender neutrality” when it comes to crimes relating to sexual offences. Today, India not only legally recognises the two genders of male and female but has also taken the progressive step towards giving the transgenders a legal recognition and bestowing them with the same fundamental and constitutional rights as the other two genders.

In NALSA v. Union of India[1], the judiciary finally recognised the transgenders and gave them the position of the “third gender”. It is ironical, as the country which is progressive enough to recognise the third gender is still regressive enough to not have gender neutral criminal laws relating to sexual offences. These criminal laws do not even extend to the male gender; therefore, inclusion of the third gender is a far-fetched dream. Fortunately, the transgenders have at last attained constitutional equality. Constitutional equality can be defined as the equal status attained by persons under the Constitution of the country. In the Indian context, Article 14[2] provides for equality before law. No person shall be discriminated on the basis of sex.

Nonetheless, despite having the legal recognition as well as constitutional equality, the treatment of transgenders in the society as well as legally, due to the lack of laws, indicates a violation of their fundamental rights under Articles 14, 15[3] and 21[4] due to the lack of gender neutrality in laws relating to sexual offences.

Moving on, more often than not, we assume that human bodies are clearly either male or female and turn a blind eye to the violence suffered by those who violate the normative understanding of what it means to be a man and a woman[5]. We overlook the plight of the transgender community, which includes hijras and kothis in the Indian context and intersex, a condition in which one’s sexual organs are ambiguous[6]. However, with reformatory movements such as #MeToo and #MenToo, the country saw a rise in the awareness of and need for inclusivity in laws relating to sexual offences, which extended not only to the male gender but also to the third gender.

Furthermore, historically and mythologically, India has witnessed the existence of the transgender community and therefore it cannot be termed as a new or an alien concept. In fact, the Hijra community in India traces their origins to myths in the Ramayana and Mahabharata[7]. It is disappointing to see the lack of inclusivity in the criminal law.

In India, various studies have documented sexual and physical violence against transgender persons[8]. Transgenders have been a victim of sexual offences since ages and yet there is no law in place to help them get justice. These offences include sex trafficking, rape, sodomy, stalking, sexual harassment at workplace and otherwise and so on.

Such offences are committed from the childhood of transgender persons. 971 (44.7%) transgenders were reported facing 2811 incidents of violence i.e., an average of three incidents per person between April and October 2015[9]. The trans community has suffered immensely by being excluded from the definitions of sexual crimes. In research conducted in different parts of India by a Health Resource Center “Swasti”, it was found that four in ten transgender people experience some sought of sexual abuse before the age of 18 and the trauma continues past their childhood[10]. A study by the National Human Rights Commission (NHRC), India found out that 52% of the transgender community faced harassment by their school classmates and 15% from their teachers which resulted in their dropping out from school[11].

It is unfortunate as it is claimed that most sexual offences against transgenders take place when they go to the police seeking help. People’s Union for Civil Liberties — Karnataka studied the cases of human rights violation against transgender persons and the observations were staggering.

“Sexual violence is a constant, pervasive theme in all the narratives collected in our report. Along with subjection to physical violence such as beatings and threats of disfigurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the least, which leads to brutal violence, at the most. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, feel up their breasts, strip them, and in some cases rape them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person.[12]

Currently, any sexual offence committed by anyone irrespective of its severity, that does not fall under the definition of “rape” under Section 375[13], may be filed under Section 377[14] IPC which deals with “unnatural sex”. While this does help in accessing justice to a certain extent, it trivialises the gravity of the offence by not giving it the position of “rape” or the punishments imposed in respect of the same. When we take a look at other criminal law statutes such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)[15] or the Immoral Traffic (Prevention) Act, 1956[16], there are no legal safeguards ensured for the transgenders, who happen to form the majority of victims in such cases.

Nonetheless, there is still a ray of hope as constant efforts are being made by various NGOs across India as well as the Law Commission Reports and Parliament in order to help the community attain equal status and prevent their exploitation. There also exists certain legislations, amendments and precedents passed in light of this which shall be discussed through this paper.

Analysing the position of law

Despite being centuries old, the criminal laws of the country have undergone many amendments and modifications throughout the decades to suit the needs of the changing society. For instance, after Nirbhaya case[17], the Penal Code, 1860[18] was amended in 2013 to widen the scope of hate crimes and sexual offences against women. So far, the Penal Code has been amended 77 times.

The debate on the need for inclusive laws has been going on for almost two decades now with many landmark judgments where the women have misused the pro-women laws or the men have been the victims of such situations. While, the trans community has been subjected to such violence from ages not many had raised their voice against the same until recently. The trans activism in India began around 1999 with the first pride march held in Kolkata. However, it was only after 2009 did the trans activism gain momentum after the landmark judgment delivered in Naz Foundation v. Govt. of NCT of Delhi[19]. 12 years have passed since, and there has been no proposals to bring about gender inclusive law relating to sexual offences yet. One can look at a brief history of the dynamics between the trans community and the Indian legal system thereby walking through the developments made in light of the same while emphasising on the need of gender inclusivity.

I. History and development of laws relating to sexual offences and transgenders

The IPC does not provide for the definition of sexual offences and all sexual offences, except Section 377, are made gender-specific, that is, the victim is always deemed to be a woman while man is seen as the perpetrator[20]. Sexual offences can be defined as range of offences wherein the sexual sanctity and bodily integrity of an individual is interfered with or without his/her consent[21].

In India, criminal laws are heavily influenced by the mindset of the people in the society. The age-old patriarchy deeply rooted in the minds of the people has led to a situation where the man is always the perpetrator and can never be the victim by virtue of his gender.

This has led to the gender-specific rape laws and other laws relating to sexual offences such as the POSH Act, 2013 which is formulated for the protection of women in the workplace.

(a) Rape law in India

Rape law in India before the infamous Mathura rape case[22] was very narrow, regressive and discriminatory against women. For a very long time, the burden of proof in such case was upon the victim, but the same was shifted on the accused after the Mathura rape case[23]. Another demand was to hold in camera proceedings for rape trials and to maintain anonymity of the victim[24]. Accordingly, the rape law was amended to fulfil these recommendations and demands posed by the activists.

The Indian women’s movement has revolved around the agenda of reforms in rape law since the 1980s[25]. Women’s groups have for a long time struggled to broaden the definition of rape[26]. However, it was only after the 2013 amendment did the rape law in India become more accommodative to all forms of non-consensual sexual activity. Nonetheless, the law still lacked gender inclusivity and considered only the women as victims of rape except that of hate crimes. The 2013 amendment also recognised acid attack as a form of hate crime, and the laws pertaining to this was made gender neutral. However, transgenders were still excluded from the laws.

Nonetheless, there did exist legal safeguards for victims of sexual offences that did not fall under the definition of “rape” under Section 375. Such offences could be filed under Section 377 that defines “unnatural sexual offences”:

  1. Unnatural offences. — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

     Explanation. — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[27]

While this provision could act as a legal safeguard, it was also very discriminatory in nature as this provision was transphobic in nature by defining certain consensual acts as “unnatural” merely because it did not fit into the normative acceptable definition of what constituted “natural”. What seems stranger and unfortunate is the fact that the same provision holds good for sexual offences even today, even after the decriminalisation of Section 377. This provision merges a male on male or female on female rape to voluntarily sexual activity between two consenting homosexuals, thereby indicating the regressive nature of this law.

(b) Position of transgenders under the law

Much before the 2018 judgment[28], the AIDS Bhedbhav Virodhi Andolan (ABVA) published a report in 1991[29] revealing the atrocities faced by the transgender community in the nature of sexual violence, exploitation, assault and extortion under the garb of Section 377 IPC recommending that the said law should be repealed[30]. A writ petition was filed in light of the same to declare Section 377 unconstitutional. However, the writ petition was quashed on the grounds of upholding legal morality, majoritarian morality and its declaration as ultra vires the Constitution would go against public morality, public order and decency[31].

Even though this petition was dismissed on technical grounds, it had already ignited the trans community to fight for their rights and demand for their legal safeguards against sexual offences. This activism went on to give rise to another case called Sudesh Jhaku v. K.C.J.[32], where the matter of gender neutrality was first discussed.

(i) In Sudesh Jhaku v. K.C. Jhaku

The issue of gender neutrality of sexual offences first arose in Sudesh Jhaku case in 1996[33] wherein the Delhi High Court insisted on the legislature to articulate gender neutral criminal law[34]. As a consequence of this judgment, the Supreme Court formulated issues that the Law Commission of India had to look into. This further led to the 172nd Law Commission Report[35].

(ii) 172nd Law Commission Report

The 172nd Law Commission Report of 2000 primarily dealt with the review of laws relating to sexual offences and recommended a lot of changes including gender neutrality. However, while an elaborate explanation for Sections 375 and 376[36] was given, the Report had very less to say about Section 377. Nonetheless, it recommended the deletion of this section under the following justification:

“In the light of the change effected by us in Section 375, we are of the opinion that Section 377 deserved to be deleted. After the changes effected by us in the preceding provision (Sections 375 to 376-E[37]), the only content left in Section 377 is having voluntary carnal intercourse with any animal, we may leave such person to their just deserts.[38]

While the deletion of Section 377 was recommended, not much was said about the gender neutrality aspects or the legal safeguards provided to the transgenders. However, the Report did not take shape until 2012, yet the trans community was able to witness the progress in the mindsets of the law-makers and this went on to give rise to another path-breaking judgment in Naz Foundation v. Govt. of NCT of Delhi[39].

(iii) In Naz Foundation v. Govt. of NCT of Delhi

The case of Naz Foundation v. Govt. of NCT of Delhi[40] acted as a major pathbreaker for the transgender community. The Naz Foundation is a non-governmental organisation working on HIV/AIDS and sexual education and health since 1994[41]. The Foundation filed a writ petition challenging the constitutional validity of Section 377 and the matter was heard before the Delhi Hight Court. The Delhi High Court having recognised the growing awareness towards homosexuality and transgenderism decriminalised Section 377 if the said act took place between two consenting individuals. The instant reaction to the judgment was of extreme elation from the sexual minorities across the nation while religious leaders condemned it with equal passion[42]. This ray of hope soon diminished when an appeal against the Naz Foundation was filed before the Supreme Court. On the other hand, prior to this appeal, in the year 2012 a committee was formed to review the rape laws of the country after the heinous Nirbhaya rape case[43]. This Committee was the Verma Committee[44].

(iv) The Verma Committee

The Verma Committee for the very first time heard the hues and cries of the LGBTQA community for the need of gender inclusive laws relating to sexual offences. The community was given a chance to express the lack of inclusivity and legal safeguards in crimes relating to sexual offences.

The Committee recommended retention of the law on rape and in addition making sexual assault a gender-neutral offence, unlike the 172nd Report, by using term “person” instead of “woman” for the purposes of defining victim of rape and sexual assault and retaining the term “man” for the perpetrator and thereby bringing within its scope the transgender community[45].

While this seemed like a huge victory for the trans community, it was only short-lived as although the Criminal Law (Amendment) Ordinance, 2013[46] took a very gender-neutral approach to rape law, the Criminal Law (Amendment) Act, 2013[47] only implemented the recommendations made to make the rape laws more stringent by widening the definition of “rape”. It did not consider the aspect of gender neutrality and retained the gender-specific definitions of these sexual offences. Amidst all this, came another coup de grâce, with the much criticised judgment in Suresh Kumar Koushal v. Naz Foundation[48].

(v) In Suresh Kumar Koushal v. Naz Foundation[49]

Unfortunately, the Supreme Court in this case overruled the judgment of the lower court in Naz Foundation v. Govt. of NCT of Delhi[50] and reinstated Section 377 in the year 2013. The Court held that the law laid down under Section 377 is constitutional and does not infringe the fundamental rights of the LGBTQA community[51]. The legally unsustainable rationale given by the Court was that firstly, the community constitutes a miniscule and negligible part of the population[52]; secondly, the Court cannot declare law ultra vires by relying on the decisions of foreign jurisdictions[53]. The Court further added that criminal law in a country is the reflection of the majoritarian public morality and the Indian society vehemently disapproved homosexuality[54]. While discarding the notions of privacy, the Court held that State interference in this case is justified on the ground of public health, safety and morality[55]. This move of the judiciary was heavily criticised and the trans community gained a lot of traction.

However, the Court did not completely rule out the probability of a reformation to Section 377. The judgment stated that “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.[56]

The decision led to hue and cry and was also criticised for not being in conformity with the International Covenant on Civil and Political Rights (ICCPR)[57], to which India is a signatory. This is when the judiciary had to finally take a stance on the position of transgenders both socially as well as legally. This led to the case of NALSA v. Union of India.[58]

(vi) In NALSA v. Union of India

The judiciary took a stance and granted the legal recognition of a “third gender” to the trans community in NALSA v. Union of India[59] in the year 2014.  The Court held that “person” under Article 14 is not limited to mean a man and a woman but extends to include within its scope of hijras and transgender persons who are neither male nor female[60]. The judgment also highlighted on the lack of legal safeguards for the community by stating that:

  1. 62. … non-recognition of the identity of hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.[61]

The decision directed affirmative action on part of the Central and the State Governments to ensure non-infringement of fundamental rights, public health and social welfare of the community in light of the Yogyakarta Principles[62]. This gave a sense of relief to the LGBTQA community as their human rights were upheld despite the fact that they are insignificant in number. However, the pragmatic reality remained unchanged despite the recognition[63], until 2018 in Navtej Singh Johar v. Union of India.[64]

(vii) In Navtej Singh Johar v. Union of India

The Supreme Court in this case finally decriminalised Section 377 IPC. The law under Section 377 is gender neutral and includes sexual conducts of both heterosexuals and homosexuals; however, the burden of proof has often fallen on the latter only[65]. The Wolfenden Committee[66] in 1957 in its Report concluded that the purpose of criminal law is to preserve public decency and morality and furthered the thesis of J.S. Mill that argued private space must be free from State intervention[67]. This means that criminalising consensual homosexuality within the private space of two consenting, sound adults neither falls under the theoretical nor operational realm of criminal law and therefore must be decriminalised as it is a matter of privacy and private morality. Sexual orientation is an essential attribute of privacy. Discriminating against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.[68] The State cannot demean their existence or control their destiny by making their private sexual conduct a crime[69].

The Constitutional Bench of the Supreme Court unanimously declared Section 377 IPC as unconstitutional to the extent it criminalises consensual sexual conduct between two adults in private, be it between homosexuals, heterosexuals, same sex or transgender sex[70], however, it continues to govern non-consensual sexual acts against adults, minors and acts of bestiality[71]. It stated that such consensual act is “natural” and cannot be termed against the “order of nature”.

After the legitimate recognition of the third gender through the NALSA[72] decision and other legal developments within the community, it was only fair to expect an enactment which would entail and protect the rights of transgenders. This led to the enactment of Transgender Persons (Protection of Rights) Act, 2019[73].

(viii) Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Bill, 2019[74] was first introduced and passed by the Lower House in the year 2016. However, the same was not passed by the Upper House, thereby the position of law coming to a standstill. Nonetheless, the Bill was reintroduced in the year 2019 and was passed by both the Houses along with presidential assent thereby making it an Act. While this Act was heavily criticised due to the lack of consultation from the representatives of the trans community, it also highlighted and brought into light some of the very common issues faced by the transgender, which had not yet been recognised.

The Act recognises the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse. Penalties for these offences vary between six months to two years, and a fine[75].

While this Act did give some relief to the trans-activists as well as the community and stabilised the position of transgenders under the law of the land, India still has a long way to go in terms of inclusivity and protection of transgenders from sexual offences which shall be dealt with later on.

II. Need for inclusivity

While a lot has already been said about the position of law, there does remain a huge grey area wherein the sexual minority of the trans community is threatened. This is due to the lack of inclusivity. For the purpose of this study, the need for inclusive laws will be studied under three particular statutes i.e. (a) Penal Code, 1860 (b) Immoral Traffic (Prevention) Act, 1956[76] (c) POSH Act, 2013.

(a) Position of transgenders under IPC

While a lot has already been discussed about the various recommendations of reports and committees as well as other amendments and judicial pronouncements, Section 377 is still not an adequate solution for the sexual predatory of transgenders. The same will be discussed below.

The purpose behind gender neutrality of sexual offences under the IPC is not to desexualise the offence but to incorporate a holistic understanding of the nature of the offence beyond the lens of gender[77]. While the decriminalisation of Section 377 only extended to consensual acts of homosexuality between two adults and retained the criminalisation of the other non-consensual acts coming under the ambit of “unnatural offences”, the position of law still remains dicey. Additionally, this Section is not wide enough to consider all forms of sexual harassment or assault as any offence filed under this provision would amount to sodomy. It does not cover other forms of sexual offences such as rape, voyeurism, stalking, trafficking among many more which the transgenders are subjected to day in and day out. It must also be noted that most of these offences are also not “unnatural” and hence do not come under the purview of this Section. This analogy is drawn from Justice Verma Committee Report of 2013[78] wherein distinct sexual offences were identified that could have been committed against women and not all sexual offences were included under the umbrella of rape[79].

Along with Section 377, other provisions relating to sexual offences such as Section 354 which deals with all other forms of sexual offences such as stalking, voyeurism, etc. must also be amended to replace the word “any woman” with “any person” so as to ensure the protection of transgenders, in particular the Hijra community who have faced a lot of oppression by not only the society but also the law enforcement agencies due to their gender as well as their economic status which has made them a prey to such acts.

Upon the decriminalisation of consensual sexual conduct between two persons, it becomes imperative to make the other non-consensual sexual conduct, transgender neutral with a separate provision to administer the same and not include all offences under the umbrella of “unnatural offences”. It is important to categorise the offence as it is without dilution of all offences against the transgender community under the umbrella of Section 377[80].

The insistence is on the amendment of the criminal law on sexual offences provided for under IPC and not enactment of a separate gender-neutral legislation for sexual offences which even though seems to be convenient, is not an ideal way[81] as the no new enactment of legislation would have the same gravity and impact as the Penal Code, 1860. Apart from the gender neutrality and transgender inclusiveness of the sexual offence provided for under the IPC, other law governing the criminal domain also have to be amended for holistic recognition of the substantial right of the LGBTQA community[82] such as the POSH Act, 2013.

(b) Position of transgenders under POSH Act, 2013

The need for an enactment to protect women at workplace from sexual harassment arose from the very famous case of Vishaka v. State of Rajasthan[83], where a woman was gang raped by 6 men in her workplace where she was volunteering. Unfortunately, there was no law to protect women from such horrific incidents in the workplace and the Vishaka Guidelines was followed throughout India until 2013, when a law was enacted for the same.

Now, as the name suggests, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[84], is gender specific and is only for the protection of women in workplace. However, it fails to take into consideration that men and transgenders can be victims of workplace sexual harassment too. To talk of transgenders in particular, this community is a sexual minority and is more prone to such assault and harassment than men, due to their gender and more than women due to the lack of laws protecting them.

With the legal recognition of the third gender and the enactment of Transgender Persons (Protection of Rights) Act, 2019, transgenders now have the freedom to work anywhere without any discrimination under the law. However, this does not mean that they would not be subjected to discrimination in the workplace due to the narrow societal and normative understanding of what constitutes “normal”. Transgenders are also subjected to sexual harassment in the workplace due to the male-predominant society that still does not accept the third gender as one of them, who are equally capable of working and earning.

The lack of gender neutrality in the POSH Act has been brought up many times. The reason given for the same by the 239th Parliamentary Standing Committee was that the majority of the victims of such incidents were women and hence it was a remedy provided under Article 15(4) of the Constitution which allows the Parliament to make any special provisions for the educationally or socially backward classes of citizens or SCs and STs. While this is nowhere a reasonable justification for the exclusion of men from the legislation, it certainly acts as a compelling argument to include transgenders in the Act due to their socially backward status. Transgenders have been able to come out of their closets and adapt to the normalcy of being a transgender only recently since all of the legal developments aforementioned. However, they still have a long way to go in order to attain the equal status of a male or a female in the eyes of the society. Therefore, this undoubtedly makes the community a socially backward one and hence they must be included in the Act going by the argument of the Parliament of making special provisions under Article 15(4).

Each person is entitled to right to life and right to live with dignity, and as such statutes that punish sexual offences cannot selectively protect one person[85]. The act of sexual harassment is a violation of a person’s human rights and well as the fundamental right to a dignified life. Therefore, making such crucial laws gender-specific only leads to a more blatant violation of such rights.

However, many companies in India today follow a gender-neutral system of sexual harassment policies such as Taj Group of Hotels and Godrej thereby protecting the safety of all their employees irrespective of their gender. One wishes to witness the same change in the POSH Act, 2013.

(c) Position of Transgenders under Immoral Traffic (Prevention) Act, 1956

It is no news that transgenders are one of the most affected communities when it comes to sex trafficking. The Immoral Traffic (Prevention) Act, 1956 was enacted with the sole purpose of preventing the trafficking of women and children. However, in the year 1986, due to the increasing number of people being trafficked for sexual exploitation an amendment was made to include not only male and female but also those who do not fall into either of the categories. This meant that male and transgenders became criminal subjects while the women became the victims. It failed to understand that transgenders also could become victims of human trafficking.
Furthermore, when the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018[86] was proposed, it heavily affected the trans community as the Bill criminalised the acts of beggary as well as consensual sex work. It stated that anyone undergoing “hormone therapy” would be arrested under the grounds of trafficking.

One should understand, that back in 2016, when the trans community had just gained legal recognition, it was still very difficult specially for the downtrodden and the Hijra community to actually make a living out of the organised sector. Due to decades of abandonment, they were forced to indulge in sex work and beggary. However, the criminalisation of the same meant a huge setback for the community as the Government neither consulted the community nor did they provide any alternative skill development programmes to make such people self-sufficient and contribute to the organised sector. Adding on, it is also a known fact that most of the transgenders undergo hormone therapy for their sex change procedures. The duration of the same would pan over a year or two. Criminalising the same under trafficking is preposterous as well as regressive. While the Bill is proposed out of bona fide, it must also take into consideration the multiple stakeholders of the Bill and propose a law that would be viable to all the stakeholders, as justice to one set of people, should not come at the cost of the other.

Conclusion

While the laws in the three statutes appear regressive and preposterous, one must also consider that the concept of transgenderism is still in its nascent stages and it would take a lot of time and social reconditioning for the society to become more inclusive towards the third gender. Nonetheless, reformations are the need of the hour and one can see that a lot of initiative are being taken up to fast-track the process of gender neutrality in the laws.

In 2020, a public interest litigation (PIL) was filed before the Supreme Court to highlight on the lack of penal provisions to safeguard transgenders from sexual offences, event after 6 years of gaining legal recognition. The plea has been filed by Advocate Reepak Kansal and has made the ministries of law and justice, and social justice and empowerment as parties[87]. This PIL filed stated that “though the Supreme Court in 2014, had granted ‘recognition to the transgender/ third gender as “persons” falling under the ambit of Article 14 of the Indian Constitution’, still they do not have equal protection of law in relation to sexual offences.[88]” The petitioner is filing this petition with respect to equal protection of law to the third gender/transgender from the sexual assault/offences as there is no provision/section in the IPC which may protect the third gender from the sexual assault by male/female or another transgender therefore, an anti-discrimination laws are needed to safeguard the basic citizenship rights of transgender persons,[89] the plea said. The PIL also challenged the constitutional validity of Section 354-A[90] in order to examine its extent and scope. It stated that the provision excluded transgender victims of sexual harassment and that it was ultra vires of Articles 14, 15 and 21 of the Constitution[91]. The same was heard by the Supreme Court, and the Supreme Court has sought reply from the Centre on the same matter. The stance of the Centre is yet to come on this matter.  Nonetheless, efforts are constantly being made to make the laws relating to sexual offences more inclusive and the same must be supported.

To sum it up, the law on rape as well as other sexual offences should have been made gender neutral as now the trans community, like women, belongs to the oppressed and vulnerable class prone to sexual violence and harassment owing to the societal power dynamics[92]. Right to seek protection from sexual assault is a right guaranteed by the Constitution and a crucial pillar to further gender justice and the same cannot be ignored[93]. The gender neutrality of sexual offences reflects a nuanced understanding of the nature and consequences of the sexual offences under the criminal law and recognising that women, men and the transgender community can be both victims and perpetrators of the crime[94].


BBA LLB (Hons.) 3rd year student at Faculty of Law, PES University, e-mail: charvidev01@gmail.com.

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[2] Art. 14, Constitution of India.

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[16] <http://www.scconline.com/DocumentLink/ucPDKUb8>.

[17] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.

[18] <http://www.scconline.com/DocumentLink/wNz74jV9>.

[19] 2009 SCC OnLine Del 1762.

[20] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice (6-5-2017, 01.57 a.m.), <https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/>.

[21] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice (6-5-2017, 01.57 a.m.), <https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/> at 485-487.

[22] Tukaram v. State of Maharashtra, (1979) 2 SCC 143

[23] Tukaram case, (1979) 2 SCC 143 .

[24] Tukaram case, (1979) 2 SCC 143 .

[25] Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, 37 Economic and Political Weekly No. 9, 844 (2002).

[26] Sakshi v. Union of India, (2004) 5 SCC 518 .

[27] S. 377, Penal Code, 1860.

[28] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[29] AIDS Bhedbhav Virodhi Andolan, Less than Gay: A Citizens’ Report on the Status of Homosexuality in India, ABVA, (12-5-2019, 21.41 p.m.), <https://docs.google.com/file/d/0BwDlipuQ0I6ZMXVmNWk0ajdqWEU/edit>.

[30] AIDS Bhedbhav Virodhi Andolan, Less than Gay: A Citizens’ Report on the Status of Homosexuality in India, ABVA, (12-5-2019, 21.41 p.m.), <https://docs.google.com/file/d/0BwDlipuQ0I6ZMXVmNWk0ajdqWEU/edit>.

[31] Divya Aswani, Transgender Neutrality of Sexual Offences: An Aftermath of Decriminalization of Section 377, NLUD Journal, <http://14.139.58.147:8080/jspui/bitstream/123456789/307/1/40LLM18.pdf>.

[32] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428.

[33] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428.

[34] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428, para 29.

[35] <http://www.scconline.com/DocumentLink/1935iv62>.

[36] <http://www.scconline.com/DocumentLink/H3Z8GN57>.

[37] <http://www.scconline.com/DocumentLink/1h30GnSs>.

[38] Ministry of Law, Government of India, One Hundred and Seventy-Second Report on Review of Rape Laws, Law Commission of India (2000).

[39] 2009 SCC OnLine Del 1762.

[40] 2009 SCC OnLine Del 1762.

[41] <http://www.nazindia.org/about.htm>.

[42] Nirnimesh Kumar, Delhi High Court Strikes Down Section 377 of the IPC, The Hindu, 2-7-2009, New Delhi.

[43] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.

[44] <http://www.scconline.com/DocumentLink/Bq5pU80d>.

[45] Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, Economic and Political Weekly (6-5-2019, 12.21 p.m.), <https://www.jstor.org/stable/4411809>.

[46] <http://www.scconline.com/DocumentLink/MLv276UW >.

[47] <http://www.scconline.com/DocumentLink/YZ81TAt0>.

[48] (2014) 1 SCC 1.

[49] (2014) 1 SCC 1.

[50] 2009 SCC OnLine Del 1762.

[51] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

[52] Suresh case, (2014) 1 SCC 1.

[53] Suresh case, (2014) 1 SCC 1.

[54] Rukmini Sen, Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to the “Inclusive” Judgment, NUJS Law Review (13-5-2019, 10.19 a.m.), <http://nujslawreview.org/wp- content/uploads/2016/12/rukmini-sen.pdf>.

[55] Gautam Bhan, Challenging the Limits of Law: Queer Politics and Legal Reform in India in Because I Have a Voice: Queer Politics in India, 468 [Arvind Narrain and Bhan Gautam (eds.), 2005].

[56] Suresh case, (2014) 1 SCC 1.

[57] International Covenant on Civil and Political Rights, 19-12-1966, S. Treaty Doc. No. 95-20, 6 ILM 368 (1967), 999 UNTS 171; Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810 at 71 (1948).

[58] (2014) 5 SCC 438.

[59] (2014) 5 SCC 438.

[60] (2014) 5 SCC 438,

[61] (2014) 5 SCC 438, 487.

[62] Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, International Commission of Jurists (15-5-2019, 17.11 p.m.), <https://www.refworld.org/docid/48244e602.html>.

[63] Tukaram v. State of Maharashtra, (1979) 2 SCC 143

[64] (2018) 10 SCC 1.

[65] Geetanjali Misra, Decriminalizing Homosexuality in India, Taylor and Francis Group (13-5-2019, 14.49 p.m.), <https://www.jstor.org/stable/40647442>.

[66] Wolfenden Committee, Report on Homosexual Offences and Prostitution, (Chairman: Sir John Wolfenden, 1957).

[67] H.L.A. Hart, Law, Liberty and Morality, 88 Stanford University Press (1963).

[68] K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809, para 126.

[69] Justice Kennedy, Lawrence v. Texas, 2003 SCC OnLine US SC 73 :  156 L Ed 2d 508 : 539 US 558, para 18 (2003).

[70] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.

[71] (2018) 1 SCC 791, para 21

[72] (2014) 5 SCC 438.

[73] Transgender Persons (Protection of Rights) Act, 2019.

[74] <http://www.scconline.com/DocumentLink/hyED4Wys>.

[75] <http://www.scconline.com/DocumentLink/87UM7Ym2>.

[76] <http://www.scconline.com/DocumentLink/ucPDKUb8>.

[77] Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Cambridge University Press (3-5-2019, 17.55 p.m.), <https://www.cambridge.org/core/journals/asian-journal- of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape- law/9BC983FB009B7BBDEB78CED0BC5144C0>.

[78] The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013.

[79] <http://www.nazindia.org/about.htm>.

[80] Sakshi Raje, Transgender: The Human Rights, Law Times Journal (11-5-2019, 10.51 a.m.), <http://lawtimesjournal.in/transgender-the-human-rights/>.

[81] (2014) 1 SCC 1.

[82] Animesh Sharma, Section 377: No Jurisprudential Basis, Economic and Political Weekly (14-5-2019, 14.33 p.m.), <https://www.epw.in/journal/2008/46/commentary/Section-377-no- jurisprudential-basis.html?0=ip_login_no_cache%3D7f2e2da6d0d55a917ff3ebc34c05b74e>.

[83] (1997) 6 SCC 241.

[84] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[85] Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Asian Journal of Comparative Law, p. 376 (2016).

[86] <http://www.scconline.com/DocumentLink/27IkNY72>.

[87] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[88] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, The Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[89] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, The Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[90] <http://www.scconline.com/DocumentLink/rKlU5i88>.

[91] Constitution of India <http://www.scconline.com/DocumentLink/Uei3bEDC>

[92] State Govt. v. Sheodayal Gurudayal, 1954 SCC OnLine MP 100 .

[93] Ministry of Law, Government of India, Committee on Amendments to Criminal Law (Chairperson: Justice J.S. Verma, 2013).

[94] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice (6-5-2019, 1.57 a.m.), <https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/>.

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