Know thy Judge

As Justice NV Ramana bid adieu to the Chief Justiceship of India, Justice Uday Umesh Lalit has taken over as the 49th Chief Justice of India. On his last working day as the Chief Justice of India, Justice Ramana, while addressing the bar, said that he was leaving the Supreme Court in very able hands.

Justice Lalit’s father, Justice UR. Lalit, was a former additional judge of the Bombay High Court, Nagpur bench. He joined the bar in 1983 and practiced as an advocate in the Bombay High Court from 1983 to 1985. In 1986, he joined the chambers of Former Attorney General for India, Soli Sorabjee from 1986 to 1992. In 2004, he was designated as a senior advocate and also served as a member of the Supreme Court’s Legal Services Committee for two terms.[1]  As a senior advocate he specialised in criminal cases and was appointed as CBI’s Special Public Prosecutor in all 2G matters, under the Supreme Court’s orders.

Justice Lalit, was the 6th Senior Advocate to be directly elevated to the Supreme Court as a judge. After becoming a Supreme Court judge in 2014, Justice Lalit has delivered over 270 judgments so far,[2]

In the Farewell Function of Justice NV Ramana organised by the Supreme Court Bar Association, Justice Lalit said,

“It is a tough time for someone like me. Look at the popularity of my predecessor. How am I going to don that mantle now hereafter. I express my complete inability to match and go anywhere near this popularity.”

While he appreciated the contribution of Justice NV Ramana during his tenure as the Chief Justice of India, Justice Lalit especially commended Justice Ramana’s contribution is persuading the State Governments for establishment of the Office of Public Defender/Legal Aid Defence Counsel in each district on the lines of Public Prosecutor’s office. He highlighted that,

“In every State the Government is willing to provide us space for the Offices. We owe this to Justice Ramana’s perseverance.”

Focus Areas as the new Chief Justice of India

Justice Lalit, who is due to retire in November, 2022, has highlighted these three areas that he would like to work on as the new Chief:

Listing of Matters:

“I assure you that we will strive hard to make listing as simple, as clear and as Transparent as possible.”

Mentioning of matters:

“Very shortly we will have a clear-cut regime where any urgent matters can freely be mentioned before the respective Courts.”

Listing of matters before the Constitution Benches and matters referred to 3-judge Benches:

“I have always believed that the role of the Supreme Court is to lay down the law with clarity and consistency and the best possible way to do it is to have larger Benches as early as possible wherever the matters are referred to such benches so that the issues get clarified immediately, the matter has consistency and people are well aware of what exactly are the contours of the peculiar positions of law.”

He added that he will work towards ensuring that the Supreme Court always has at least one Constitution Bench functioning all throughout the year.

Important Judgments as a Supreme Court judge

One of the most important judgments delivered by the benches headed by him, is the POCSO skin to skin verdict, where he, along with Bela Trivedi (who authored the judgment) and S. Ravindra Bhat (who authored the concurring opinion), JJ, set aside the Bombay High Court (Nagpur Bench) judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. [Read: POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent”]

Recently, Justice Lalit headed the 3-judge bench that imposed sentence of four months and fine of Rs.2,000/- on Vijay Mallya for contempt of Court after observing that he “never showed any remorse nor tendered any apology for his conduct” of transferring a huge sum of US$40 million to his children instead of repaying his debt of more than Rs. 9000 crores to the banks. [Read: Four months in prison; Rs. 2000 fine for Vijay Mallya for contempt; US$40 million to be deposited by him and beneficiaries at 8% interest per annum]

He was also the part of the 3-judge bench that overruled 1983’s ruling in Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284  and held that there is no universal rule to fill vacancies on the basis of the law which existed on the date when they arose. [Read: No universal rule to fill vacancies on the basis of the law which existed on the date when they arose; Supreme Court overrules 1983’s YV Rangaiah ruling ]

The bench of Justice Lalit and Justice KM Joseph, JJ has dismissed the bail plea of activist Gautam Navlakha arrested in relation to the Bhima Koregoan riots case. [Read: Here’s why Gautam Navlakha was not able to make a case for default bail before the Supreme Court] The bench had, in the same verdict also held that it is open for Courts to order house arrest under Section 167 CrPC..

You can read more about the judgments delivered by Justice Lalit in our Know Thy Judge Post here.

Know Thy Judge| Justice Uday Umesh Lalit


[1] Supreme Court Observer, Judges’ archive 

[2] SCC Online’s ‘Judge only’ feature.

Hot Off The PressKnow thy JudgeNews

The Chief Justice of India, Justice NV Ramana has named Justice Uday Umesh Lalit as his successor. Set to become the 49th Chief Justice of India, Justice Lalit will retire in November, 2022.
Justice Uday Umesh Lalit, was the 6th Senior Advocate to be directly elevated to the Supreme Court as a judge. As a senior advocate he specialised in criminal cases and was appointed as CBI’s Special Public Prosecutor in all 2G matters, under the Supreme Court’s orders.

Justice Lalit’s father, Justice UR. Lalit, was a former additional judge of the Bombay High Court, Nagpur bench. He joined the bar in 1983 and practiced as an advocate in the Bombay High Court from 1983 to 1985. In 1986, he joined the chambers of Former Attorney General for India, Soli Sorabjee from 1986 to 1992. In 2004, he was designated as a senior advocate and also served as a member of the Supreme Court’s Legal Services Committee for two terms.[1]

A DNA India report[2], described that his “strength as an advocate were his thoroughness with the case, patience in explaining legal questions and the sober demeanour in presenting the case before the bench”.

After become a Supreme Court judge in 2014, Justice Lalit has delivered 276 judgments[3]. Interestingly, Justice UU Lalit recused himself from the Ramjanmbhoomi-Babrui Masjid Land dispute, after it was pointed out that he had represented former UP Chief Minister Kalyan Singh, in a related matter.

One of the most important judgments delivered by the benches headed by him, is the POCSO skin to skin verdict, where he, along with Bela Trivedi (who authored the judgment) and S. Ravindra Bhat (who authored the concurring opinion), JJ, set aside the Bombay High Court (Nagpur Bench) judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. [Read: POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent”]

Recently, Justice Lalit headed the 3-judge bench that imposed sentence of four months and fine of Rs.2,000/- on Vijay Mallya for contempt of Court after observing that he “never showed any remorse nor tendered any apology for his conduct” of transferring a huge sum of US$40 million to his children instead of repaying his debt of more than Rs. 9000 crores to the banks. [Read: Four months in prison; Rs. 2000 fine for Vijay Mallya for contempt; US$40 million to be deposited by him and beneficiaries at 8% interest per annum]

He was also the part of the 3-judge bench that overruled 1983’s ruling in Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284  and held that there is no universal rule to fill vacancies on the basis of the law which existed on the date when they arose. [Read: No universal rule to fill vacancies on the basis of the law which existed on the date when they arose; Supreme Court overrules 1983’s YV Rangaiah ruling ]

The bench of Justice Lalit and Justice KM Joseph, JJ has dismissed the bail plea of activist Gautam Navlakha arrested in relation to the Bhima Koregoan riots case. [Read: Here’s why Gautam Navlakha was not able to make a case for default bail before the Supreme Court] The bench had, in the same verdict also held that it is open for Courts to order house arrest under Section 167 CrPC..

You can read more about the judgments delivered by Justice Lalit in our Know Thy Judge Post here.

Know Thy Judge| Justice Uday Umesh Lalit

 


[1] Supreme Court Observer, Judges’ archive 

[2] Uday Lalit among four new judges to assume charge in Supreme Court, DNA India, Published on August 13, 2014

[3] SCC Online’s ‘Judge only’ feature.

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

The purpose of the law cannot be to allow the offender to sneak out of the meshes of law”.

Justice Bela M. Trivedi

Attorney General for India v. Satish, 2021 SCC OnLine SC 1076


Early life and Legal Career[1]


Justice Bela M. Trivedi was born on 10th June 1960 at Patan, in North Gujarat.  Since her father had a transferable judicial service, she did her schooling at various places. However, Justice Trivedi finished her B. Com – LL.B from the MS University, Vadodara.

As an advocate, Justice Bela Trivedi’s practice in the Gujarat High Court centered around Civil and Constitutional matters for about ten years. Later, on 10th July 1995, she was appointed directly as the Judge, City Civil and Sessions Court at Ahmedabad.

♦Did You Know? It was a happy coincidence that her father was already working as the Judge, City Civil and Sessions Court when she was appointed. The Limca Book of Indian records has recorded the entry in their 1996 edition that ” Father – daughter judges in the same court “.

Serving as a member of the Judicial Services, Justice Bela M. Trivedi also worked in different capacities like Registrar – Vigilance in the Gujarat High Court; CBI Court Judge; Special Judge – Serial Bomb blast matters etc. Justice Trivedi was also deputed as the Law Secretary of the Gujarat State Government between 2004 to 2006.[2]


High Courts


On 17th February, 2011, Justice Trivedi was elevated as the Judge of Gujarat High Court. Later in June 2011 she was transferred to the Rajasthan High Court at the Jaipur Bench. In 2013, Justice Trivedi was confirmed as a Permanent Judge of the Rajasthan HC. Three years later i.e., in February 2016, she was repatriated to the Gujarat High Court.[3]

Some of the important decisions rendered by Justice Bela M. Trivedi during her tenure in the High Courts have been listed below.

Rajasthan High Court

Manohar Lal v. State of Rajasthan, 2012 SCC OnLine Raj 1989

The Division Bench of Narendra Kumar Jain-I and Bela M. Trivedi, JJ., deliberated upon the grievance of the petitioners who were detained on the ground that they were dangerous persons and their activities were prejudicial to the maintenance of public order. The Bench observed that there was no explanation as to what the activities were and what were the reasons for passing the detention order after a delay of more than one year. Since their representations were rejected by a non-speaking order which is a violation of Art. 22(5) of the Constitution and in absence of any germane material for passing the order of detention, the entire order of detention was held as vitiated.

Radhey Shyam v. Radha Mohan Paliwal, 2012 SCC OnLine Raj 2208

While deciding the matter related to C.P.C., Order 22 Rule 5, Sec. 2(11) of CPC regarding determination of Legal Representatives of the deceased, Justice Bela M. Trivedi held that the legatee under the Will, who intends to represent the estate of the deceased testator being on intermeddler with the estate of the deceased, will be a Legal Representative.

Anuj Sharma v. Ram Gopal, 2014 SCC OnLine Raj 140

While deciding the issue concerning appointment of maternal grandfather as guardian of a minor while his natural father is alive, Justice Bela M. Trivedi held that as long as the father of the minor is alive and is not found unfit to be the guardian of the person of the minor, the Court cannot appoint any other person as guardian of the person of such minor.

Jal Mahal Resorts Pvt. Ltd. v. State of Rajasthan, 2015 SCC OnLine Raj 12151

Whether the Collector (Stamps) can review and set aside his own order under the guise of exercising the powers of rectification u/Sec. 52 of the Rajasthan Stamp Act, 1998; Justice Bela M. Trivedi held that, Collector (Stamps) cannot review his own order and such order shall be treated as passed without any authority of law, and therefore illegal. Chief Controlling Revenue Authority has the power to call for the record of any case decided in the proceeding held by the Collector and pass appropriate orders.

G.S. & Company v. Union of India, 2016 SCC OnLine Raj 1357

While dealing with the issue of scope and ambit of judicial review in contractual matters, the Bench of Bela M. Trivedi, J., held that such a scope is very limited and terms of invitation to tender are not open to judicial scrutiny. It was further held that unless the action of tendering authority is found to be malicious and misuse of its statutory powers, the interference of the Court is unwarranted- Exclusion and inclusion of terms and conditions in the tender is a part of evolutionary process.

Gujarat High Court

Surat Parsi Panchayat Board v. Union of India, 2021 SCC OnLine Guj 1431

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., dismissed a petition which was filed with the sole purpose of securing an appropriate order, direction and/or writ directing the authority to permit the petitioners and its members to perform Dokhmenashini/last rites in Dokhmas of its member having died due to Covid 19, in accordance with their religious practices which is duly protected by the Constitution of India. The Court while dismissing the petition went on to hold that impugned Guidelines issued by the Ministry of Health and Family Welfare considering the prevailing situation of Covid-19, in the larger public interest for the disposal of dead bodies by cremation or burial, could not be said to be violative of any fundamental rights.

“The safety and the welfare of the State is the supreme law as comprehended in the legal maxim – “salus populi suprema lex”. Even the fundamental rights to profess, practice or propagate religion, and the right to manage religious affairs, as enshrined under Articles 25 and 26 of the Constitution of India, are subject to public order, morality and health.”

Read more

Anil Surendrasingh Yadav v. State of Gujarat, 2019 SCC OnLine Guj 2692

A Division Bench of Bela M. Trivedi and A.C. Rao, JJ., dismissed an appeal filed on being aggrieved by the Judgment and order by the Additional Sessions Judge and Special Judge (POCSO), whereby it had convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of the Penal Code, 1860 and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012, and had sentenced him to death penalty for the offence under Sections 302, 376AB of the Penal Code and had convicted him of the offences under the Atrocities Act. The Court while dismissing the appeal and confirming the decision of the Special Court stated that the abhorrent and atrocious nature of crime committed by the appellant-accused in a diabolical manner, on the defenseless unprotected girl of 3½ years, without any remorse, has left the Court with no option but to consider the case as the rarest of rare casefor awarding the punishment of death penalty.

Read more

Suo Motu v. State of Gujarat, 2021 SCC OnLine Guj 850

In the instant matter the Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., directed the State of Gujarat to remain alert despite the falling number of Covid-19 cases and take all necessary actions immediately with regard to the improvement of the health infrastructure in the rural areas as also for creating awareness amongst public at large of the Mucormycosis disease [one of the post- covid side effect] and for making the policy of distribution of Liposomal Amphotericin B injections more transparent, specific and effective.

Jignesh Natvarlal Mevani v. Suo Motu, 2021 SCC OnLine Guj 832

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., in the instant matter, perused the petition seeking to direct the State of Gujarat to publish and come out with data at the end of every day with regard to the total tests done for COVID-19; the number of Covid-19 fatalities and other connected information. The Court however, did not pass any directions in this regard citing the advisories issued by the ICMR.

Suo Motu v. State of Gujarat, 2021 SCC OnLine Guj 834

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., noting the swift spread of covid19 in rural areas and no clear strategy regarding the distribution of vaccines and medicines, directed the Central Government to place on record for the information of the general public at large, about the vaccination policy adopted by the Central Government. The Bench also directed the Gujarat Government to provide details on oath regarding availability of dedicated covid hospitals, RT-PCR tests etc.


Supreme Court


In August 2021, the Supreme Court Collegium while deliberating upon appointment of new Judges to the Supreme Court, recommended the name of Justice Bela M. Trivedi along with 8 other names. Subsequently, the recommendations were accepted and Justice Trivedi was elevated as Judge of Supreme Court of India on 31st August, 2021.[4]

♦Did you Know? Upon her elevation, Justice Bela M. Trivedi became the First Woman Judge from Gujarat High Court to be elevated to the Supreme Court.[5]

Some of the prominent decisions, that have been rendered by Justice Bela M. Trivedi so far, are as follows-  

Jaina Construction Co. v. Oriental Insurance Co. Ltd., (2022) 4 SCC 527

The bench of Sanjiv Khanna and Bela M. Trivedi, JJ., held that an Insurance Company cannot repudiate a claim merely on the ground that there was a delay in intimating it about the occurrence of the theft of vehicle. The Court was deciding a case relating to theft of a Truck that was insured with Oriental Insurance Company Limited.

Read more

Attorney General for India v. Satish, 2021 SCC OnLine SC 1076

In an important ruling on POCSO Act, the 3-judge bench of UU Lalit, Bela M. Trivedi and S. Ravindra Bhat, JJ., set aside the Bombay High Court (Nagpur Bench) judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. Justice Bela M. Trivedi also observed that-

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.”

Read more

Muzaffar Husain v. State of U.P., 2022 SCC OnLine SC 567

In a case where a Judge was accused of misconduct, the bench of Dr. D.Y. Chandrachud and Bela M. Trivedi, JJ., 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.”

Read more

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

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

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 Munni Devi v. Rajendra, 2022 SCC OnLine SC 643

The bench of Ajay Rastogi and Bela M. Trivedi, JJ., held that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.

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R. Muthukumar v. TANGEDCO, 2022 SCC OnLine SC 151

In a case where some candidates who had applied for the post of Helper/trainee with Tamil Nadu Generation and Distribution Corporation Ltd (TANGEDCO) on the basis of a compromise order directing appointment of 84 persons, arguing that they were similarly situated, the 3-judge bench of UU Lalit, S. Ravindra Bhat and Bela M. Trivedi, JJ., held that if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.

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Sunil Kumar Maity v. SBI, 2022 SCC OnLine SC 77

In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the bench of Sanjiv Khanna and Bela M. Trivedi, JJ., set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.

Read more

Chandrapal v. State of M.P., 2022 SCC OnLine SC 705

The Division Bench of Dr. D.Y. Chandrachud and Bela M. Trivedi, JJ., reiterated the settles position of law vis-a-vis extra-judicial confessions and observed that an extra judicial confession attains greater credibility and evidentiary value if it is supported by chain of cogent circumstances and is further corroborated by other prosecution evidence.


†Sucheta Sarkar, Editorial Assistant has put this report together 

Justice Bela M. Trivedi’s Image Courtesy: Times Now 

[1] Chief Justice and Judges Supreme Court of India

[2] Justice Bela M. Trivedi SC Observer

[3] Justice Bela M. Trivedi SC Observer

[4] Chief Justice and Judges Supreme Court of India

[5] Know about Justice Bela M. Trivedi, Sparsh Upadhyay, Live Law

Know thy Judge

Born to Advocate Shreeniwas W. Oka on May 25, 1960, Justice Abhay S. Oka completed his Bsc and LLM from Mumbai University and enrolled as an advocate on June 28, 1983, and started practicing in Thane District Court in the chambers of his father

♦Did You Know? In 1985-86, Justice Oka joined the chamber of V. P. Tipnis, a former judge of the Bombay High Court and former Lok Ayukta.

He practiced for 19 years in the High Court, Appellate Side, Bombay in Civil, Constitutional and Service matters and specialised in all the matters.  In 2003, he was appointed as an Additional Judge of the Bombay High Court. In 2005, he was appointed as a permanent Judge in Bombay High Court. He was appointed as the Chief Justice of the Karnataka High Court in 2019, before being elevated as a Supreme Court judge in 2021.

During his tenure as a High Court judge, he passed many orders on environmental protection and for better living conditions in Bangalore and Bombay. He is known for his orders on civil liberties. During the Covid-19 pandemic, he passed several orders protecting the rights of migrant workers and questioned the handling of the government.

♦Did You Know? Justice AS Oka at one point decided to become an engineer but gave up the idea midway and decided to join the legal fraternity instead.[1]


Justice Oka and PIL


♦Did You Know? During the tenure of Justice A.S. Oka as the Chief Justice of the Karnataka High Court, the Karnataka High Court suddenly become a constitutional shield for the protection of the rights of many marginalised communities including slum dwellers, sweepers, prisoners and transgender persons.

Justice Oka took the Public Interest Litigation`s version of locus standi seriously and used it in facilitative role as opposed to a “command-and-control” position, ascertained real dedication from diverse reassets along with affidavits from public servants of the State, and exercised restraint while the pains of a tribulation had been required in ascertaining statistics and while technical knowledge changed into required.

Justice Oka`s tenure as the Chief Justice has been a living proof for exercising a delicate balance in the PIL jurisdiction, even as concurrently making sure protection from fundamental right violations of the maximum vulnerable.

Justice Oka frequently exercised restraint however at the same time, is unafraid to fulfil the mandate of the Constitution, even supposing it intended displeasing the executive. Such judicial orders additionally got here at instances the people of Karnataka wanted them the maximum.

His conviction to uphold justice, harbingering social change and preserving administrative accountability can be reflected through his judgments like – right to protest and requirements of Section 144 of CrPC, Rights of the urban poor: illegal evictions, Right to shelter: upholding the state’s obligation to provide shelter to the homeless under Article 21 of the Constitution and ordering the setting up requisite night shelters for the homeless across urban areas in the State, right of prisoners, Secularism,  inviolable right to legal representation, combating atrocities against Scheduled Castes & Tribes, implementation of prohibition on manual scavenging and judicial intervention in the COVID-19 crisis.


Notable Judgements at Supreme Court


Maniben Maganbhai Bhariya v. District Development Officer Dahod, 2022 SCC OnLine SC 507

In a detailed judgment stressing on the importance of the work done by the Anganwadi workers/helpers at the grassroot level, the bench of Ajay Rastogi* and Abhay S. Oka*, JJ has held that Anganwadi workers/helpers are entitled to gratuity under the Payment of Gratuity Act, 1972.

Writing separate but concurrent opinions, both the judges agreed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

Read More…


K. Shanthamma v. State of Telangana, 2022 SCC OnLine SC 213

In an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer in spite of proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

Read more…


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

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

Read more…


UCO Bank v. Krishna Kumar Bhardwaj, 2022 SCC OnLine SC 201

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that non-supply of demanded documents is not sufficient to challenge a disciplinary inquiry unless it is showed what prejudice has been caused due to non-supply.

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Bihar Industrial Area Development Authority v. Rama Kant Singh, 2022 SCC OnLine SC 32

In a case where the bench of Ajay Rastogi and Abhay S. Oka*, JJ was deciding an issue relating to Bihar Public Works Contracts Disputes, the bench has held that if any of the provisions of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 are in conflict with the Arbitration and Conciliation Act, 1996, the 2008 Act shall prevail to the extent of the conflict.

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Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99

While deciding the instant appeal wherein the appellant challenged the externment order issued against him under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,

“If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1) (d) of the Constitution”.

Read More…


Horticulture Experiment Station Gonikoppal, Coorg v. Regional Provident Fund Organization, 2022 SCC OnLine SC 223

The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

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Debananda Tamuli v. Kakumoni Kataky, 2022 SCC OnLine SC 187

In a case where it was argued that merely because husband and wife are staying separately since a long time, an inference regarding desertion cannot be drawn, the bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.

“The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”

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S.K. Supiyan v. CBI, 2022 SCC OnLine SC 164

In a breather to SK Supiyan, West Bengal Chief Minister Mamta Banerjee’s Election Agent in the Vidhan Sabha Elections held in 2021, the bench of L Nageswara Rao and Abhay S. Oka*, JJ has granted him anticipatory bail in the Nandigram murder case but has directed him to fully cooperate with CBI for investigation and to remain present for investigation as and when called upon by the investigating officer. The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.

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Jagathy Raj V.P. v. Rajitha Kumar S., 2022 SCC OnLine SC 152

While addressing the question of law with regard to lifespan of relinquishment of claim for consideration for promotion in educational institutions, the Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed,

“…the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due…”

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Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43

In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

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Punjab State Cooperative Agricultural Development Bank Ltd v. Registrar, Cooperative Societies, 2022 SCC OnLine SC 28

The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

“If a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of rules operates in futuro.  But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution.”

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Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156

In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi* and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

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Vinod Kumar v. Amritpal, 2021 SCC OnLine SC 1150

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”.

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Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156

After granting bail to a 74-year-old arrested under the Unlawful Activities (Prevention) Act, 1967, as after the charge-sheets came to be filed way back in 2012, the charges were framed after 7 years and hearing was taking place only one day in a month, the bench of Ajay Rastogi* and Abhay S. Oka, JJ said that if this procedure is being followed in conducting the trial under the National Investigation Agency Act, 2008, it frustrates the very purpose with which the special Courts are designated.

Read More…


Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist).

It was argued before the Court that though the investigation of the case was later on, transferred to National Investigation Agency (NIA), the NIA did not seek sanction for prosecuting any of the accused for the offence punishable under Section 20. Sanction was sought to prosecute Fasal and Shuaib for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute Shuaib under Section 13.

Hence, in view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, it was noticed that a prima facie case of the accused being involved in the said offence is not made out at this stage.

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State of M.P. v. Somdutt Sharma, 2021 SCC OnLine SC 829

“Overall activities and functions of the Irrigation Department would have to be considered while deciding the question whether it is carrying on manufacturing activities.”

The Division Bench comprising of Ajay Rastogi and Abhay S. Oka*, JJ., held that Irrigation Department was not a factory within the meaning of Factories Act, 1948 as there was no indulgence in manufacturing process in the Department. The Bench expressed,

“Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process.”

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Nagendra Sah v. State of Bihar, 2021 SCC OnLine SC 717

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.

“…falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

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SY Azhar SY. Kalandar v. State of Maharashtra, 2021 SCC OnLine SC 701

While noting the mitigating factors and circumstances in which a crime had been committed and considering that the parties are residing in the same village and are peacefully residing after the uncalled for incident had taken place, the Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ., reduced the quantum of sentence for a conviction under Section 307  Penal Code, 1860.

Read More…


Notable Judgements at High Court


♦Did You Know? Justice Oka’s bench, when he was sitting with Justice Riyaz Chagla, was accused by Advocate General Ashutosh Kumbhakoni of bias. This was when the bench was hearing PILs regarding noise pollution. Following the allegations, the then Chief Justice Manjula Chellur took away the matter from Justice Oka but after public outcry and support from the bar associations, the petitions were returned to the bench. Three days after levelling charges against the judge, the state government withdrew the allegations, tendered an apology, and claimed that it held the judge “in the highest esteem”.[2]

Girish Bharadwaj v. State of Karnataka, 2020 SCC OnLine Kar 445

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. while addressing a petition with regard to release of information of people who contracted COVID-19 at Nizamuddin, Delhi,  stated that, it is a policy decision and Court cannot interfere in the same.

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Sandhya U. Prabhu v. State of Karnataka, 2020 SCC OnLine Kar 441

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., while addressing a petition held that,

“…decision to keep open super markets 24×7 relates to purely a policy decision and nothing arbitrary in the said policy decision is found.”

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Mohammed Arif Jameel  v. Union of India, 2020 SCC OnLine Kar 391

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. asked the State Government of Karnataka to take cognizance on various significant issues that have been raised in wake of the outbreak of Corona Virus.

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Mohammed Arif Jameel v. UOI, 2020 SCC OnLine Kar 539

While addressing a petition dealing with issue of migrant workers who had applied to be accommodated to the Shramik Special Trains to their origin State, a Division Bench of Abhay Shreeniwas Oka, CJ and B.V. Nagarathna, J. held that,

“though several orders have been passed by this Court from time-to-time, the State has not placed on record any transparent and fair policy for selecting persons out of those who registered on Seva Sindhu website.”

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Vijayakumar Rai v. State of Karnataka, 2019 SCC OnLine Kar 2186

A Division Bench of Abhay S. Oka, CJ. and Mohammad Nawaz, J. directed the state government to refund the amount already deducted from the salaries of judicial officers by the end of February 2020.

Read More…


MONKEYS DEATH – SUO MOTU; decided on 30-07-2021

A Division Bench of Abhay S. Oka CJ and N S Sanjay Gowda J. remarked that it is necessary to lay down the guidelines to ensure that inhuman and shocking incidents of animal cruelty are hereafter prevented.

The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.

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Sanathana Kalakshetra v. Bruhat Bengaluru Mahanagara Palike, 2020 SCC OnLine Kar 871

A Division Bench of Abhay S. Oka, CJ and M. Nagaprasanna, J., while addressing a matter held that,

“…right to construct unauthorized temple and that also on a footpath cannot be said to be an essential part of any religion or religious practice which can be protected under Article 25 of the Constitution of India.”

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V. Mara Nayaka v. State of Karnataka, 2019 SCC OnLine Kar 681

The Division Bench of Abhay S. Oka, C.J. and H.T. Narendra Prasad, J. while not going into the legal issue involved, dismissed the petition and held that the act of the petitioner is not pro bono and should not be allowed to invoke the extraordinary jurisdiction of this Court by filing a Public Interest Litigation.

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High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 762

A Division Bench of Abhay Shreeniwas Oka, CJ and Vishwajith Shetty, J., laid down the guidelines to be followed for payment of dues to the claimants in Motor Vehicle Accident Claim cases, Workmen’s Compensation Act, 1923 Matrimonial Cases and Land Acquisition Compensation cases etc.

Due to the partial functioning of the district and trial Courts in the State in view of the COVID-19 Pandemic, entry of litigants in the Courts premises has not been permitted.

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High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 543

A Division Bench of Abhay Shreeniwas Oka, CJ and S Vishwajith Shetty, J., while dealing with many issues held that no legal basis for Family Courts insisting on personal presence of petitioners at the time of filing cases and presence of complainant while filing S. 138 NI Act case not necessary.

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Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 442

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., asked for the State Government’s response with regard to breach of social distancing norms at a political leaders house, incident of assault on doctors, nurses and ASHA workers and action being taken on the complaints filed with respect to domestic violence.

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Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 448

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathnna, J. held that , owners of seized vehicles due to breach of COVID-19 Guidelines may approach jurisdictional Police Officers for the same.

“…in case of such seizure of vehicles for the offences relating to breach of the directions concerning COVID-19, it will be open for the jurisdictional Police Officers to exercise the powers under sub- section (3) of Section 102 of Cr.P.C and to give custody of the vehicles in terms of sub-section (3) of Section 102 to the owners.”

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KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020

A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

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SEBI v. Franklin Templeton, 2020 SCC OnLine Kar 1650

A Division Bench of Abhay S. Oka CJ. and Ashok S.Kinagi J., while allowing the present writ petition held, “the decision of the Trustees (the Franklin Templeton Trustee Services private Limited) to wind up six Schemes mentioned in paragraph-1 of the Judgment by taking recourse to sub-clause (a) of clause (2) of Regulation 39 of the Mutual Funds Regulations cannot be implemented unless the consent of the unit-holders is obtained in accordance with sub-clause (c) of clause (15) of Regulation 18.”

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High Court of Karnataka v. State of Karnataka, WP No. 7338 of 2020

A Division Bench of Abhay S. Oka, CJ and S. Vishwajith Shetty, J., in view of the present situation of COVID-19 outbreak held that,

“…course adopted by the Courts while recording the plea of the accused and recording the statement of the accused under Section 313 of CrPC through video conferencing hearing will be a step taken to reduce the physical presence of the stakeholders in the Courts precincts to meet the exceptional situation and to secure the functioning of the Courts by following the best possible health practice.”

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Mohammed Arif Jameel v. Union of India, W.P. No. 6435 of 2020

A Division Bench of Abhay S Oka, CJ and Aravind Kumar, J. gave a slew of directions regarding vaccine allocation. The Court took stock of the various aspect related to COVID vaccination in the State.

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† Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. has put this report together

* Judge who has penned the judgment.

[1] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19

[2] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19

Know thy Judge

What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum.

       Justice Aniruddha Bose

Sunny Abraham v. Union of India

2021 SCC OnLine SC 1284


Early Life and Career[1]


Hon’ble Mr. Justice Aniruddha Bose was born on 11th April, 1959 in Kolkata (then Calcutta). In 1976, he passed his Higher Secondary Examination from St. Lawrence High School, Kolkata. He did his B.Com from St. Xavier’s College, Kolkata and Law from Surendranath College of Law in Kolkata as well.

Having obtained his degree in Law, Justice Bose enrolled with the Bar Council of West Bengal as an advocate in October, 1985. He practiced in the Original and the Appellate Side of the Calcutta High Court in Constitutional and Civil matters, with special emphasis on Intellectual Property Law cases.


In the High Courts[2]


After a tenure of roughly 19 years as an advocate in the Calcutta HC, Justice Aniruddha Bose was elevated to the HC Bench as a permanent Judge in 2004. He continued to serve the Calcutta HC till early 2018. He was also in the running for the post of Chief Justice of Delhi High Court, however, on 4th August 2018, upon recommendation by the SC Collegium, Justice Bose was appointed as the Chief Justice of Jharkhand High Court by the President of India, Shri Ramnath Kovind.


Journey to becoming Supreme Court Judge


In a Resolution, the Supreme Court Collegium comprising of Ranjan Gogoi, C.J., and S.A. Bobde, N.V. Ramana, Arun Mishra and R.F. Nariman, JJ., reiterated their recommendation (dt. 12-04-2019) to elevate Justice Aniruddha Bose as a Judge of the Supreme Court. Consequently, Justice Bose was appointed as a SC Judge on 24-05-2019 by President Shri Ramnath Kovind.


Notable Judgments that Justice Aniruddha Bose has been a part of


Calcutta High Court [2004 – 2018]

Madan Das v. Lt. Governor, 2011 SCC OnLine Cal 2374

The 7 Judge Bench of the High Court comprising of Jainarayan Patel, C.J. and Bhaskar Bhattacharya, Pinaki Chandra Ghose, Kalyan Jyoti Sengupta, Indira Banerjee, Aniruddha Bose and Sambuddha Chakrabarti, JJ., held that unless special circumstances mentioned in Rule 5 of Order 47, CPC subsist, a Judge who delivered the original judgment or order sought to be reviewed, alone can take up the Application for review as well.

Sony Kabushiki Kaisha v. Mahaluxmi Textile Mills, 2009 SCC OnLine Cal 531

The Bench of S.S. Nijjar, C.J. and Indira Banerjee and Aniruddha Bose, JJ., in this trademark infringement suit, made significant observations as to the necessity and importance of trademark. It was noted that the key function of a trade mark is to indicate the source or origin of goods and services. The tort of passing off is committed if the offending trader applies an established trade mark in such manner so as to cause confusion or deception in the mind of the consumers as regards the source or origin of the goods and the mind of purchasers are directed to the firm whose identity is already linked with the trade mark in the market place.

Union of India v. Pam Development Pvt. Ltd,  2005 SCC OnLine Cal 299

The Division bench of Aloke Chakrabarti and Aniruddha Bose, JJ., held, the Chief Justice, under S. 11(6) of Arbitration and Conciliation Act, 1996, is not strictly bound to appoint an arbitrator who must have a qualification as agreed upon between the parties, thus, even if the arbitrator does not have the qualification, his appointment would not be rendered invalid.

Jharkhand High Court [2018- 2019]

Hit Narayan Jha v. The State of Jharkhand, 2018 SCC OnLine Jhar 1371

The bench of Aniruddha Bose, C.J. and Chandrashekhar, J., set aside the dismissal from service on the charge of taking illegal gratification. It was observed that the writ Court would not interfere with the orders passed by the departmental authority unless it has been passed in breach of the Discipline and Service Rules or in avoidance of the rules of natural justice.

State of Jharkhand v. HSS Integrated SDN, 2019 SCC OnLine Jhar 172

This was a contractual dispute between the State and the opposite parties in relation to a consultancy agreement over construction of six-lane Divided Carriage-way of certain parts of Ranchi Ring Road. An Arbitral Tribunal was constituted which found that termination of the contract was illegal and invalid. The bench of Aniruddha Bose, C.J. and Ratnaker Bhengra, J., while hearing the challenge to the Tribunal’s Award, held that there was no involvement of any grave violation of public policy by the Arbitral Tribunal in passing the award. The facts narrated in the award do not project any gross misuse of jurisdiction which could shock the conscience of the Court.

Supreme Court

Nahar Singh v. State of U.P., 2022 SCC OnLine SC 332

The division bench of Vineet Saran and Aniruddha Bose JJ., deliberated on the issue that whether a Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190(1)(b) of The Criminal Procedure Code, 1973, can issue summons to any person not arraigned as an accused in the police report and whose name also does not feature in column (2) of such report. They held that for summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. A statement made under Section 164 of CrPC could also be considered for such purpose.

State of Haryana v. Harnam Singh, (2022) 2 SCC 238

While considering the issues surrounding the determination of genuineness of a will as per S. 63 of Succession Act, 1925 and the evidence of meeting the requirements of S. 63 r/w S. 68 of the Evidence Act; the Division Bench of L. Nageshwar Rao and Aniruddha Bose JJ., held that the aforementioned evidence must inspire confidence and be credible. Requirements of S. 63 of 1925 Act, cannot be fulfilled merely upon showing of mechanical or technical compliance with the stipulations specified therein.

Gurmeet Singh v. State of Punjab, (2021) 6 SCC 108

In a case relating to dowry death, where it was argued by the accused that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained, the 3-judge bench of NV Ramana, CJ., and Surya Kant and Aniruddha Bose, JJ., rejected the contention and has explained,

“Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.”

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Satbir Singh v. State of Haryana, (2021) 6 SCC 1

In a case relating to dowry death, the bench of NV Ramana, CJ and Aniruddha Bose, J., held that judges need to be extra careful while conducting criminal trials relating to Section 304-B, IPC. The Court went on to summarise the law under Section 304­B, IPC read with Section 113­B, Evidence Act and the guidelines to be followed by the Courts while conducting trials in such cases.

The Court noticed that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense.

Read more

Sunny Abraham v. Union of India, 2021 SCC OnLine SC 1284

 The Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ held that not  having approval of the Finance Minister at the time of issue of charge memorandum for carrying departmental enquiry would render it defective, not capable of being validated retrospectively by post-facto approval.  

      “Life cannot be breathed into the stillborn charge memorandum.

Read more

Jitendra Singh v. State of M.P., 2021 SCC OnLine SC 802

Observing the well-settled position of law that, Mutation Entry does not confer any right, title or interest in favour of the person and it is only recorded for the fiscal purpose, Division Bench of M.R. Shah and Aniruddha Bose, JJ., upheld the decision of the Madhya Pradesh High Court.

Aggrieved and dissatisfied with the impugned decision passed by the Madhya Pradesh High Court by which the High Court allowed the petition and quashed the decision by Additional Commissioner, Rewa Division directing to mutate the name of the petitioner in the revenue records, which was sought to be mutated on the basis of the will, the original respondent 6 preferred the present special leave petition.

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Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited v. Ajay Sales & Suppliers, 2021 SCC OnLine SC 730

Expressing on the aspect of independence and impartiality of the arbitrators, Division Bench of M.R. Shah and Aniruddha Bose, JJ., held that, though the word ‘Chairman’ is not mentioned explicitly in Seventh Schedule, at the same time, it would fall under clause 1, clause 2, clause 5, and clause 12 of the Seventh Schedule, hence will be ineligible for the purpose of the arbitration.

The above schedule is to be read with Section 12(5) of the Arbitration and Conciliation Act.

Read more

National Spot Exchange Limited v. Anil Kohli, 2021 SCC OnLine SC 716

 The Bench of M.R. Shah and Aniruddha Bose, JJ., observed that,

“Appellate Tribunal has jurisdiction or power to condone the delay not exceeding 15 days from the completion of 30 days, the statutory period of limitation.”

Aggrieved and dissatisfied with impugned order passed by the National Company Law Appellate Tribunal by which NCLAT refused to condone delay of 44 days in preferring the appeal against the order passed by the National Company Law Tribunal rejecting the claim of the appellant. Appellant has preferred the present appeal.

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Velladurai v. State, 2021 SCC OnLine SC 715

 The Division Bench of M.R. Shah and Aniruddha Bose, JJ., while addressing a matter noted that, abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide.

Read more

 Northern Western Railway v. Sanjay Shukla, 2021 SCC OnLine SC 1036

 While addressing the matter wherein a passenger suffered loss and agony due to delay in the arrival of train, M.R Shah and Aniruddha Bose, JJ., observed that,

“These are the days of competition and accountability. If public transportation has to survive and compete with private players, they have to improve the system and their working culture”.

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J. Chitra v. State Level Vigilance Committee, (2021) 9 SCC 811

 A Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ. reversed a judgment of the Madras High Court delivered over a decade ago and held that the State Level Scrutiny Committee had no power to reopen the matter relating to the caste certificate that had been approved by the District Vigilance Committee, without an appeal being filed against such order. The Supreme Court declared that:

“Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry.”

Read more

Pichra Warg Kalyan Mahasabha Haryana v. State of Haryana, 2021 SCC OnLine SC 635

 A Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ., quashed the notification dated 17-8-2016 issued by State Government of Haryana, which specified economic criterion as the sole basis of identification of ‘creamy layer’ (socially advanced sections) among backward classes for excluding them from the purview of benefit of reservation in State services and admission to educational institutions. The Supreme Court reiterated that the basis of exclusion of ‘creamy layer’ cannot be merely economic.

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Mangala Waman Karandikar v. Prakash Damodar Ranade, (2021) 6 SCC 139

 Explaining the scope of Section 92 Proviso (6) of the Evidence Act, 1872, the 3-judge bench of NV Ramana, CJ., and Surya Kant and Aniruddha Bose, JJ., has held that the said proviso can be resorted to only in cases where the terms of the document leave the question in doubt.

“But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92.”

The Court was of the opinion that if the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself.

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Namrata Verma v. State of U.P.

In a landmark case, the Division Bench of M.R. Shah and Aniruddha Bose, JJ., held that an employee has no right to insist/deny his transfer at a particular place. The Bench was addressing the case of a Lecturer (Psychology) at Rajkiya Mahavidyalaya, Gajraula, District Amroha; who had made representation for her transfer to Rajkiya Post Graduate College, Noida, Gautam Buddha Nagar. The said representation had been rejected by the Additional Chief Secretary Higher Education, Uttar Pradesh. The petitioner contended before the Court that she had been working at Amroha for the last 4 years and therefore, under the Government policy she was entitled to a transfer.

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Amit Sahni v. Commissioner of Police, (2020) 10 SCC 439

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ., in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely. The Court noticed that the Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as India’s lies in the same.

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State of Punjab v. Davinder Singh, (2020) 8 SCC 1

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ upon noticing that SC decision of E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, referred the matter to a larger bench. While doing so, the Court observed,

Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub- classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

West U.P. Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548

The 5-judge bench of Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ., held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.

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Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., held the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates (out of whom 33.1/3% shall be women) for the post of teachers in the schools in the scheduled areas in Andhra Pradesh, unconstitutional, as there was no rhyme or reason with the State Government to resort to 100% reservation.

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TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699

The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.

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Pandurang Ganpati Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Ltd., (2020) 9 SCC 215

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ held that “’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.”

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., held that 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 observed-

“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.”

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

Explaining the difference between Sections 34 and 149 of the IPC, the 3-judge bench of NV Ramana, Surya Kant and Aniruddha Bose, JJ., 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.”

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Anita Sharma v. New India Assurance Co. Ltd., (2021) 1 SCC 171

The bench of Surya Kant and Aniruddha Bose, JJ held that the strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor Accident Claims cases.

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

The 3-judge bench of NV Ramana, Surya Kant and Anirudhha Bose, JJ., 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 conditions. He shall also refrain from participating in any activity which might enrage communal sentiments.

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Government of India v. Vedanta Limited, (2020) 10 SCC 1

The 3-judge bench of SA Nazeer, Indu Malhotra and Aniruddha Bose, JJ has dismissed Central Government’s plea against enforcement of a 2011 foreign award passed in favour of Vedanta Limited in a dispute arising out of a contract for exploring and developing the petroleum resources in the Ravva Gas and Oil Fields. The Court held,

“the enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice.”

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Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 724

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ., observed that the Court would wait for the order of the Gujarat High Court before passing any orders in the issue relating to withdrawal of senior Designation of advocate Narendra Oza. Oza, who is also the President of the Gujarat High Court Advocates’ Association, was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court.

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United India Insurance Co. Ltd. v. Satinder Kaur, 2020 SCC OnLine SC 410

Taking note of the fact that several Tribunals and High Courts have been awarding compensation for loss of consortium and loss of love and affection, the bench directed the Tribunals and High Courts to award compensation for loss of consortium, which is a legitimate conventional head.

“There is no justification to award compensation towards loss of love and affection as a separate head.”

The 3-judge bench of SA Nazeer, Indu Malhotra and Aniruddha Bose, JJ., were hearing an issue relating to determination of compensation in a motor vehicle accident case.

Read More…

Murali v. State, (2021) 1 SCC 726

The bench of N.V. Ramana, Surya Kant and Aniruddha Bose, JJ., held that unequivocal language of S. 320(9) of CrPC, explicitly prohibits any compounding except as permitted under S. 320 of CrPC. Notwithstanding thereto, fact of amicable settlement/compromise between parties can be a relevant factor for purpose of reduction in quantum of sentence of convicts even in serious non-compoundable offences.


† Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] Calcutta High Court, Former Judges

[2] Hon’ble Judges of Jharkhand HC appointed as Judges of the Supreme Court

Know thy Judge

“It is necessary to say that the problem is not of dissent. Every society must have opinions and point of view. The debasement however is in the manner of dissent. These differences of views should be set forth in a manner which conveys it as a different. We have lost respect for each other’s opinion. It isn’t right or wrong, it is a question of time. Courts are faced with a situation where political matters under the guise of PILs lead to shrill discourse. We have a democratic government under the Constitution, there is separation of powers, hence Courts can’t be unelected governments. Checks and balances are necessary. It’s a very delicate balance and I think the segregation of powers must be respected. Dissent by Judges must be treated with constructive approach and there are limitations to that criticism. Dissent has and will always have importance.”

Justice Sanjay Kishan Kaul

CAN-GNLU Webinar“Dissents That Made A Difference: India & Abroad”


 

Justice Sanjay Kishan Kaul was born on December 26, 1958 and hails from the distinguished Dattareya Kauls of Srinagar, whose ancestry can reliably be traced back to over 500 years. He graduated in Economics (Hons) from St Stephens College, Delhi University in 1979 and later obtained LLB from Campus Law Centre, Delhi University in 1982.

♦Did You Know? Justice Kaul’s great-great grandfather Raja Suraj Kishan Kaul was the revenue minister in the Regency Council.[1]

♦Did You Know? Justice Kaul’s great grandfather was Raja Sir Daya Kishan Kaul who became the Prime Minister of Kashmir.[2]

Justice Kaul enrolled as an Advocate with Bar Council of Delhi on July 15, 1982 and practiced law at the High Court of Delhi and the Supreme Court of India. During his 19-year-long practice, he handled mainly commercial, civil and writ matters in the Delhi high court and the Supreme Court.[3] He was Advocate-on-Record of the Supreme Court of India from 1987 to 1999 and was designated as a Senior Advocate in December, 1999. He was appointed as Senior Counsel for the Delhi High Court and the Delhi University, was on the Senior panel of Union of India and served as the Additional Senior Standing Counsel for the DDA.

♦Did You Know? Justice S.K. Kaul’s brother, Neeraj Kishan Kaul who was a judge of Delhi HC, resigned from judgeship to return to the Bar. According to Neeraj Kishan Kaul “I felt it was injustice to hold on to a Constitutional post when you are not enjoying it. One should do what one enjoys doing. It must be a great joy being a judge but you have to have the temperament, which I sadly lack.”

Justice S.K. Kaul was elevated as Additional Judge of the High Court of Delhi on May 03, 2001 and was appointed as a permanent Judge on May 02, 2003. He was appointed as the Chief Justice of Punjab and Haryana High Court on June 01, 2013 before being sworn-in as Chief Justice of the Madras High Court on July 26, 2014. He was appointed as a Judge of the Supreme Court of India on February 02, 2017.[4]


Notable Judgements at Supreme Court


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, Division bench comprising 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…


Ratnam Sudesh Iyer v. Jackie Kakubhai Shroff, 2021 SCC OnLine SC 1032

The Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that a generally worded clause of a contract or Deed of Settlement cannot be said to constitute an agreement to change the course of law that the Section 34 proceedings are subject to.

The Bench expressed,

“The general phraseology of a clause which seeks to include any amendment to the Act would not be able to be availed of to expand the scope of scrutiny as it would appear to run contrary to the legislative intent of Section 26 of the Amendment Act.”

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…


Yatin Narendra Oza v. High Court of Gujarat, 2021 SCC OnLine SC 1004

A Division bench of Sanjay Kishan Kaul* and R. Subhash Reddy, JJ has temporarily restored the senior designation of Advocate Yatin Narendra Oza who was stripped off this designation after he levelled charges of corruption against the registry of the Gujarat High Court.

“In effect, the fate of the petitioner is dependent on his appropriate conduct as a senior counsel before his own High Court, which will have the final say. All we are seeking to do is to  give him a chance by providing a window of two years to show that he truly means what he has assured us. We can only hope that the petitioner abides by his assurances and does not give any cause for the High Court or for us to think otherwise.”

Read More…


Kush Kalra v. Union of India, Writ Petition(s)(Civil) No.1416 of 2020, 18-08-2021

Taking a significant step towards gender equality, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., issued interim direction permitting the women candidates to take part in the National Defence Academy (NDA) examination.

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.

“The raison d’etre of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge. These are often ignored but where despite all latitude a perennial litigant seeks to justify his existence by throwing mud at all and sundry, the Court has to step in.”

Read More…


Sivasankaran v. Sathimeenal, 2021 SCC OnLine SC 702

While deciding a case of a matrimonial dispute where the marriage never took off from the first day and was never consummated and the parties had been living separately from the date of marriage for almost 20 years, a Division Bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ. passed a decree of divorce in favour of the husband on account of irretrievable breakdown of marriage as well as on account of cruelty committed by the wife.

“… Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation …”

Read More…


Samual Sk. v. State of Jharkhand, 2021 SCC OnLine SC 645

A Division Bench comprising of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., agreed to reduce the sentence of the appellant−husband convicted for offence of cruelty to woman punishable under Section 498-A IPC, if he pays Rs 3 lakh as compensation to his wife and children.

The Supreme Court observed that

“The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 CrPC is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence.”

Read More…


Siddharth v. State of U.P., 2021 SCC OnLine SC 615

A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. has held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, he/she is not required to be produced in custody. While remarking that if arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person, the Supreme Court observed:

“The word ‘custody’ appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.”

Read More…


Inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India: In Re, 2021 SCC OnLine SC 602

Opining that empowerment of the consumers is the legislative intent behind the Consumer Protection Act, 2019 and 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 complaints, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., stated,

“Statistics can be deceptive but sometimes statistics reveal the truth. The position prevalent in the State Consumer Forums and the District Consumer Forums is best reflected by the statistics of existing vacancies, insofar as the Chairman and the members are concerned.”

The Bench was addressing the inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India. 

Read More…


South Eastern Coalfields Ltd. v. S. Kumar’s Associates AKM (JV), 2021 SCC OnLine SC 486

A Division Bench of Sanjay Kishan Kaul* and Hemant Gupta, JJ., reiterated that a Letter of Intent merely indicates a party’s intention to enter into a contract with the other party in future. No binding relationship between the parties at this stage emerges and the totality of the circumstances has to be considered in each case.  

Read More…


Dharmesh v. State of Gujarat, 2021 SCC OnLine SC 458

A Division Bench of Sanjay Kishan Kaul* and Hemant Gupta, JJ., found that direction passed by the Gujarat High Court requiring the appellant-accused to deposit a sum of Rs 2 lakhs each towards compensation to the victims, as a condition for grant of bail was not sustainable.

“In our view the objective is clear that in cases of offences against body, compensation to the victim should be a methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail.”

Read More…


Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456

“After all, it is for ‘the common man’ that the judicial system exists.”

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. Read More…

Also Read: SC puts fetter on exercise undertaken by Delhi Legislative Assembly’s Committee enquiring into Facebook’s role in aggravating Delhi Riots last year; Says FB representatives will have to appear 


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


Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808

In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable

Walter Lippmann

A 3 judge bench of Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari, JJ., while appreciating the existence of the right to peaceful protest against a legislation observed that

“such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.”

Read More


Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC OnLine SC 893

“Delay in delivery of judgments violates Article 21 of the Constitution of India.”

While reminding the High Courts for observing maximum time period for pronouncement of reserved judgment as per Anil Rai v. State of Bihar – (2001) 7 SCC 318, the Court observed that

“Judicial discipline requires promptness in delivery of judgments – an aspect repeatedly emphasized by this Court. The problem is compounded where the result is known but not the reasons. This deprives any aggrieved party of the opportunity to seek further judicial redressal in the next tier of judicial scrutiny.”


State of M.P. v. Bherulal, 2020 SCC OnLine SC 849

“Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed”

A Division bench headed by Justice Sanjay Kishan Kaul, dismissing the a Special Leave Petition filed by the State of Madhya Pradesh with a delay of 663 days, held

“We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value.”

Read More


Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396

The 5 judges bench comprising of Dipak Misra, CJ. and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., while deciding the issue whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through reservations and unanimously held that the judgment delivered in M. Nagaraj v. Union of India; (2010) 12 SCC 526, relating to reservations in promotions for SC/ST persons does not need reconsideration by a larger seven-judge Bench.

“The whole object of reservation is to see that backward classes of citizens move forward so that they march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”

Read More


K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1

Justice S.K. Kaul was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that right to privacy is an intrinsic part of right to life and liberty under Article 21 and freedoms guaranteed under Part III of Constitution of India.

Justice Kaul concurring with the majority view that privacy is a primal and natural right inherent to every individual,

“Privacy is an inherent right. It is thus not given, but already exists.”

recognised the technological development and breach of privacy committed by private individuals, private entities and non-State actors.

“We are in an information age. With the growth and development of technology, more information is now easily available. The information explosion has manifold advantages but also some disadvantages. The access to information, which an individual may not want to give, needs the protection of privacy.”

Justice Kaul observation at that time had far reaching implications and paved the way for rights of LGBT Community as at that time S. 377 of IPC was constitutional.

“The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity……. Ones sexual orientation is undoubtedly an attribute of privacy.”

Justice Kaul called upon the legislature to legislate on this issue and ensure privacy of individuals and formulated ‘Principle of Proportionality and Legitimacy’.

“The concerns expressed on behalf of the Petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State:

  • The action must be sanctioned by law;

  • The proposed action must be necessary in a democratic society for a legitimate aim;

  • The extent of such interference must be proportionate to the need for such interference;

  • There must be procedural guarantees against abuse of such interference.”

Read More


Notable Judgements at High Court


R. Gandhi v. Secretary to the Government, 2016 SCC OnLine Mad 8898

“Every language is a temple, in which the soul of those who speak it is enshrined”

– Oliver Wendell Holmes

A Division bench of S.K. Kaul, C.J. and R. Mahadevan, J, deciding upon the challenge to the grant of ‘Classical’ status to languages like Telugu, Kannada, Odiya, Malayalam etc., opined that the it is for the experts to determine whether a language satisfy the norms to be consideration as ‘Classical’ and the Court cannot go into the opinions and findings of expert body. .

Read More


S. Tamilselvan v. Government of T. N., 2016 SCC OnLine Mad 5960

“If you do not like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary — what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.”

A Division bench of S.K. Kaul, C.J., and Pushpa Sathyanarayana, J., opined that “a book cannot be dismissed merely as sensational, reactionary or mean-spirited” and held that the settlement arrived at the peace meet would not be binding on the author.

The Court observed that the an attitude of tolerance towards writings have existed for ages and author and artistes like Prof. Perumal Murugan cannot be under a constant apprehension that if he writes something which deviates from well trodden path, he will face adverse consequences.

‘Let the author be resurrected to what he is best at. Write.’

Read More


Babita Puniya v. Secretary, 2010 SCC OnLine Del 1116

“Nature gave women too much power; the law gives them too little.”

– Will Henry

A Division bench headed by Justice Sanjay Kishan Kaul, recognising the rights of women to get equal status with their male counterparts in Army and Air force, held that the Short Service Commissioned women officers of the Air Force who had opted for PC and were not granted PC but was granted extension of SSCs and Short Service Commissioned women officers of the Army are entitled to PC at par with male Short Service Commissioned officers with all consequential benefits.

“If these officers have performed equally well in their task which are non-combat in nature and on that basis respondents have extended their period of SSC more than once, it would be gross violation to Articles 14, 16 and 21 of the Constitution of India to accept a situation where such women officers are deprived of a PC while male officers are granted this PC. If this is not discrimination what would be discrimination based on gender and denial of equal opportunity of employment to these women?”


Mahesh Bhatt v. Union of India, 2009 SCC OnLine Del 104

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.”

– John Stuart Mill

In a writ petition filled under Article 226 of the Constitution of India, Sanjay Kishan Kaul, J. deciding the issue as to what extent government can regulate commercial speech to safeguard public health, observed that

“Directors of films should not have multifarious authorities breathing down their necks when indulging in creative art. The concept of censorship itself is a deviation and due care has been taken to incorporate the discouragement of any propagation or advertisement of smoking by incorporating the relevant provisions in the guidelines of the Censor Board.”

The Court struck down Rule. 4(6), 4(6A), 4(6B) and 4(8) of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 as they ultra vires the parent Act and are violative of Article 19(1)(a) of the Constitution of India.


Maqbool Fida Husain v. Rajkumar Pandey, 2008 SCC OnLine Del 562

“Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.”

– Prablo Picasso

The Court observed that

“Ancient Indian art has been never devoid of eroticism where sex worship and graphical representation of the union between man and woman has been a recurring feature….. The ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss that can be experienced only by the spirit.”

The Court ruled that nudity alone cannot said to be obscene. The Court relaying on the facts of the case and authorities cited held that offence alleged under Section 294 IPC cannot be made out. Similarly, the ingredients of Section 298 IPC are not present in this case as there was no deliberate intention on the part of the petitioner to huff the nationalist feelings of an individual or riot any religious feelings.

Explaining the dynamics between democracy and freedom of speech, Justice Kaul said that

“Pluralism is the soul of democracy. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”

The Court emphasized on liberal tolerance and observed that

“A liberal tolerance of a different point of view causes no damage. It means only a greater self-restraint… Our culture breeds tolerance both in thought and in actions.

According to Justice Kaul,

“There are very few people with a gift to think out of the box and seize opportunities, and therefore such people’s thoughts should not be curtailed by the age-old moral sanctions of a particular section of society having oblique or collateral motives who express their dissent at every drop of a hat.”


Khushwant Singh v. Maneka Gandhi, 2001 SCC OnLine Del 1030

“He that publishes a book runs a very great hazard, since nothing can be more impossible than to compose one that may secure the approbation of every reader”

– Miguel De Cervantes.

A Division bench presided by Justice Sanjay Kishan Kaul, dismissing the injunction application filled by respondent, held that the truth regarding the part of the appellant’s autobiography “Truth, Love and a Little Malice” being derogatory, defamatory and incorrect will be determined at the stage of trial in the claim for damages and allowed the appellant to publish his autobiography.

“There is no doubt that there are two competing interests to be balanced as submitted by the learned counsel for the respondent, that of the author to write and publish and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.”


[1] Lawyers Update – http://www.lawyersupdate.co.in/legal-luminaries/neeraj-kishan-kaul/

[2] Lawyers Update – http://www.lawyersupdate.co.in/legal-luminaries/neeraj-kishan-kaul/

[3] https://web.archive.org/web/20140819083005/http://www.samachar.com/justice-sanjay-kishan-kaul-to-be-new-chief-justice-of-madras-high-court-ofygMogdiae.html

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

Know thy Judge

Justice Bhushan Ramkrishna Gavai was born on 24th November, 1960. At the age of 25, he enrolled as an advocate and started practicing at the Nagpur bench of the Bombay High Court. He served both as a government pleader as well as a government prosecutor[1]. He was appointed as a judge of the Bombay High Court in 2003 and served in that position for 16 years before being elevated to become judge of the Supreme Court. The collegium in recommending him gave due weight to his seniority, integrity, merit and due representation in the Supreme Court.[2].


Some important judgments that Justice BR Gavai has been a part of 


Fertico Marketing and Investment Pvt. Ltd. v. Central Bureau of Investigation, 2020 SCC OnLine SC 938

The bench of AM Khanwilkar and BR Gavai, JJ  held that not obtaining prior consent of the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 (DPSE Act) would not vitiate the investigation unless the illegality in the investigation can be shown to have brought about miscarriage of justice or caused prejudice to the accused.

Read more

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

A 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain. 

“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

Read more 

Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453

A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. Noticing that since the issues involved affect the State and the nation, the Court found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

Read more 

In re: Prashant Bhushan, 2020 SCC OnLine SC 698

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has sentenced advocate Prashant Bhushan with a fine or Re.1/­ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years. It had found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. 

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

Read more

Sudru v. State of Chattisgarh, (2019) 8 SCC 333

In this case of murder of son by the accused father, on the basis of circumstantial evidence, last seen evidence and non-explanation of incriminating evidence by accused, conviction of accused confirmed. 

Union of India v. Unicorn Industries, (2019) 10 SCC 575

The 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ., held that by invoking the doctrine of promissory estoppel, the Union of India cannot be estopped from withdrawing the exemption from payment of Excise Duty in respect of certain products, which exemption is granted by an earlier notification; when the Union of India finds that such a withdrawal is necessary in the public interest.

Read more

Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279

The 3-judge Bench of Arun Mishra, MR Shah and BR Gavai, JJ., partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454. It was held that some portions of the said verdict were against the concept of protective discrimination in favour of down­trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.  The Court said,

“Can’t treat all of them as a liar.”

Read more

Sarika v. Administrator, Mahakaleshwar Mandir Committee, Ujjain, 2020 SCC OnLine SC 704

 In a bid to prevent the deterioration of Shivlinga at Mahakaleshwar Temple, Ujjain, the 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has given the eight directions.

Read more

Rishad Murtaza v. Union of India,  2020 SCC OnLine SC 377

 The 3-judge bench of NV Ramana, SK Kaul and BR Gavai, JJ has asked the Central Government to extend the order passed in In Re Contagion of COVID-19 Virus in Children Protection Homes, to Nari Niketans also, if feasable.

Read more

Tata Housing Development Company Ltd. v. Aalok Jagga, 2019 SCC OnLine SC 1419

In the matter concerning the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Stating that the entire exercise smacks of arbitrariness on the part of Government including functionaries, the bench said that the Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco­sensitive zone. It said,

The entire exercise of obtaining clearance relating to the project is quashed. We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly.

Read more

Anantha Raju v. T.M. Narasimhan, 2021 SCC OnLine SC 969

The 3-Judges Bench comprising of L. Nageswara Rao, Sanjiv Khanna, B.R. Gavai*, JJ., held that when parties deliberately put their agreement into writing, it is conclusively presumed that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.

“It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment the parties to be proved by the uncertain testimony of slippery memory.

Read more

Kanwar Amninder Singh v. High Court of Uttarakhand, Special Leave to Appeal (C) No(s).2507/2021, 17-09-2021

The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., held that strict Rules Of Evidence do not apply on a departmental enquiry.

The Petitioner, an Additional District Judge in the State of Uttarakhand was facing a departmental enquiry. The grievance of the petitioner was that his application for placing certain documents on record before the Enquiry Officer was rejected on the ground that the Presenting Officer had made an endorsement on the documents that they do not deserve to be admitted in view of Sections 85A and 85B of the Indian Evidence Act.

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Punjab and State Power Corporation Ltd. v. EMTA Coal Ltd., 2021 SCC OnLine SC 766

While elaborating the scope of judicial review, Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ., held that,

“It is not for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair.”

Question relating to interpretation of Section 11 of the Coal Mines (Special Provisions) Act, 2015 which was an outcome of the judgment of this Court’s decision in Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, and ancillary question pertaining to the scope of judicial review of administrative action of the State authority arose for consideration in the instant appeals.

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Subhranshu Sarkar v. Indrani Sarkar (Nee Das), 2021 SCC OnLine SC 720

The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., dissolved a marriage while exercising its jurisdiction under Article 142 of the Constitution of India as the marriage was emotionally dead.

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All India Association of Jurists v. Uttaranchal High Court, WP (C) No. 941 of 2021, dated 6-9-2021

 A three-Judge Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ. is considering a writ petition seeking to declare that the right to access to virtual courts through video conferencing is a facet of fundamental rights. The Court has issued notice to various parties including the Bar Council of India, the Supreme Court Bar Association and several High Courts.

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Common Cause v. Union of India, 2021 SCC OnLine SC 687

A Division Bench of L. Nageswara Rao and B.R. Gavai, JJ. upheld the Central Government’s order extending the tenure of the incumbent Director of Enforcement Sanjay Kumar Mishra for a period of one year. The Supreme Court held that there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years. Interpreting Section 25 of the Central Vigilance Commission Act, 2003 which prescribes the minimum tenure of the Director of Enforcement, the Court observed:

“The words ‘not less than two years’ cannot be read to mean ‘not more than two years’ and there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years.”

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Madhya Kshetra Basmati Growers Association Samiti v. Intellectual Property Appellate Board, Chennai, Petition(s) for Special Leave to Appeal (C) No (s). 8461 of 2020, decided on 2-9-2021

The Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ., addressed a matter with respect to registration of ‘Basmati’ as a Geographical Indication for basmati rice.

In the present matter, the Agricultural and Processed Food Products Export Development Authority (“APEDA”) filed an application before the Assistant Registrar of the Geographical Indications Registry, Chennai to register ‘Basmati’ as a Geographical Indication in Class 30 under the Geographical Indications of Goods (Registration and Protection) Act, 1999.

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Brajesh Singh v. Sunil Arora, 2021 SCC OnLine SC 571

A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733 in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.

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Amazon.com NV Investment Holdings LLC v. Future Retail Limited, 2021 SCC OnLine SC 557

Holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ., ruled in favour of Amazon in the infamous Future-Amazon dispute. It was held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act. The Court declared that full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders. 

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

A 3-Judge Bench of the Court 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. 

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Amway India Enterprises Pvt. Ltd v. Ravindranath Rao Sindhia, 2021 SCC OnLine SC 171

Division Bench of R.F. Nariman and B.R. Gavai, JJ., addressed an important case regarding nature of arbitration under Arbitration and Conciliation Act, 1996. The Bench ruled, if at least one of the parties was either a foreign national, or habitually resident in any country other than India; or by a body corporate which was incorporated in any country other than India; or by the Government of a foreign country, the arbitration would become an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India.

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PSA SICAL Terminals (P) Ltd. v. V.O. Chidambranar Port Trust, 2021 SCC OnLine SC 508

Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. held that an arbitral award which is based on no evidence and/or in ignorance of evidence would come under the realm of patent illegality. The Court also held that an arbitrator cannot rewrite the contract for the parties. Read More

Navinchandra Steels (P) Ltd. v. Srei Equipment Finance Ltd., (2021) 4 SCC 435

The Division Bench of Rohinton Fali Nariman and B.R. Gavai, JJ., addressed the instant appeal involving the question that whether an insolvency proceedings could be initiated after the winding up application had been admitted under the Companies Act. The Bench stated, that,“…every effort should be made to resuscitate the corporate debtor in the larger public interest, which includes not only the workmen of the corporate debtor, but also its creditors and the goods it produces in the larger interest of the economy of the country.”

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Gemini Bay Transcription (P) Ltd. v. Integrated Sales Service Ltd., 2021 SCC OnLine SC 572

 A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. held that a foreign arbitral award is enforceable against non-signatories to arbitration agreement. The Supreme Court reiterated that grounds for resisting a foreign arbitral award contained in Section 48(1)(a) to (e) of the Arbitration and Conciliation Act, 1996 are to be narrowly construed, and that a non-signatory’s objection cannot possibly fit into Section 48(1)(a). Furthermore, a foreign arbitral award cannot be challenged on the ground of “perversity”.

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Nayan Tara v. Ritu Maheshwari, Contempt Pet. (C) No. 316/2021

The Division Bench comprising of Rohinton Fali Nariman and B.R. Gavai, JJ., settled a decade-old land-acquisition dispute by directing NOIDA (New Okhla Industrial Development Authority) to pay compensation to the aggrieved land-owners who were dispossessed of their land by the authority without any land acquisition proceeding and without the authority of law

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National Highways v. M. Hakeem,  2021 SCC OnLine SC 473

The Division Bench of R.F. Nariman and B.R. Gavai, JJ., while addressing a significant and interesting question of law expressed that,

“If one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha”

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Shital Fibers Ltd. v. Indian Acrylics Ltd., 2021 SCC OnLine SC 281

In a corporate dispute case, the 3-Judge Bench comprising of R.F. Nariman, B.R. Gavai* and Hrishikesh Roy, JJ., held that,

“The company Court while exercising its powers under sections 433 and 434 of the Companies Act would not be in a position to decide, as to who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed.”

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M/S Utkal Suppliers v. M/S Maa Kanak Durga Enterprices,  2021 SCC OnLine SC 301

The Division Bench comprising of Rohinton Fali Nariman* and B.R. Gavai, JJ., addressed the issue of overstepping of review jurisdiction by the High Courts in policy matters. The Bench expressed,

“Judicial review in these matters is equivalent to judicial restraint in these matters…the writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority.”

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Navinchandra Steels (P) Ltd. v. SREI Equipment Finance Ltd., (2021) 4 SCC 435

The Division Bench of Rohinton Fali Nariman* and B.R. Gavai, JJ., addressed the instant appeal involving the question that whether an insolvency proceedings could be initiated after the winding up application had been admitted under the Companies Act. The Bench stated,

“…every effort should be made to resuscitate the corporate debtor in the larger public interest, which includes not only the workmen of the corporate debtor, but also its creditors and the goods it produces in the larger interest of the economy of the country.

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State of Kerala v. Mother Superior Adoration Convent, (2021) 5 SCC 602

The Division Bench comprising of R. F. Nariman* and B.R. Gavai, JJ., addressed the instant case regarding statutory interpretation.  The issue before the Bench was whether a residential accommodation for nuns and hostel for students would fall under “religious or educational purposes” for the purpose of tax exemption. The Bench expressed,

“We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted.”

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Amway India Enterprises (P) Ltd. v. Ravindranath Rao Sindhia, (2021) 8 SCC 465 

The Division Bench of R.F. Nariman* and B.R. Gavai, JJ., addressed an important case regarding nature of arbitration under Arbitration and Conciliation Act, 1996. The Bench ruled,

“If at least one of the parties was either a foreign national, or habitually resident in any country other than India; or by a body corporate which was incorporated in any country other than India; or by the Government of a foreign country, the arbitration would become an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India.”

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Ram Vijay Singh v. State of U.P., 2021 SCC OnLine SC 142

In a 38 year old case relating to murder the 3-Judge Bench of Rohinton Fali Nariman, Hemant Gupta* and B.R. Gavai, JJ., had held

“The ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.”

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Rama Narang v. Ramesh Narang, 2021 SCC OnLine SC 29,

B.R. Gavai, J., while addressing a contempt petition expressed that:

“…contempt proceeding is not like an execution proceeding under the Code of Civil Procedure.”

“…contempt proceedings are quasi-criminal in nature and the standard of proof required is in the same manner as in the other criminal cases.”

“A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders.”

The instant contempt petition arose out of an unfortunate family dispute between a father and his two sons from his first wife.

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*Associate Editor, EBC Publishing Pvt. Ltd. 

[1]SC Collegium recommends Justices BR Gavai, Surya Kant for elevation to top court, Scroll, last updated May 09, 2019,

[2] Supreme Court Observer, Judges’ archive

Know thy Judge

“Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril”.   

Justice Dr. D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1


Early Life


Justice Dr. Dhananjaya Yeshwant Chandrachud was born on 11-11-1959 to former Chief Justice of India, Justice Y.V. Chandrachud. He practiced law at the Bomaby High Court and Supreme Court of India. He was designated as Senior Advocate by the Bombay High Court in June 1998 and in the same year was appointed as the Additional Solicitor General of India. He appeared in several important cases involving Rights of Bonded Women Workers, Rights of HIV Positive Workers, Contract Labour and Rights of Religious and Linguistic Minorities.[1]


Journey to becoming Supreme Court Judge


On 29th March 2000, Justice Chandrachud was appointed as Additional Judge of the Bombay High Court. On 31st October 2013, he took oath as the Chief Justice of the Allahabad High Court until he was appointed as a Judge of the Supreme Court on 13th May 2016.[2]

Did you Know? Justice Chandrachud is likely to serve as the Chief Justice of India for a period of 2 years starting from November, 2022 to November, 2024. His father, Justice Y.V. Chandrachud, was the longest serving Chief Justice of India. [Read more about Justice Y.V. Chandrachud here]


Recent and Notable Judgments that Justice Dr. D.Y. Chandrachud has been a part of


Nitisha v. Union of India, 2021 SCC OnLine SC 261

In major win for women Officer in Indian Army, the Division Bench of Dr. D.Y. Chandrachud and M.R. Shah, JJ., held 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 is arbitrary and irrational. The Court hence, directed that such requirement shall not be enforced while implementing the decision in Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic.”

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Mahendra K.C. v. State of Karnataka, 2021 SCC OnLine SC 1021

In a case where the Single Judge of Karnataka High Court had termed person committing suicide a ‘weakling’ and also made observations on how the behavior of the deceased before he committed suicide was not that of a person who is depressed and suffering from mental health issues, the bench of Dr. D.Y. Chandrachud and B.V. Nagarathna, JJ., held that such observations describing the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues and that “The mental health of a person cannot be compressed into a one size fits all approach.”

“Individual personality differences manifest as a variation in the behavior of people. Therefore, how an individual copes up with a threat- both physical and emotional, expressing (or refraining to express) love, loss, sorrow and happiness, varies greatly in view of the multi-faceted nature of the human mind and emotions.”

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Hariram Bhambhi v. Satyanarayan, 2021 SCC OnLine SC 1010

In a case where Rajasthan High Court had granted bail by merely “keeping in view the facts and circumstances of the case”, the bench of Dr. D.Y. Chandrachud and B.V. Nagarathna, JJ., held that such orders cannot pass muster. Noticing that there was absolutely no reasoning in the order of the High Court granting bail, after recording the submissions of the first respondent’s counsel apart from noting that the public prosecutor had opposed the bail, the Court said,

“The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus “in the facts and circumstances” formula. Brief reasons which indicate the basis for granting bail are essential, for it is the reasons adduced by the court which indicate the basis of the order.”

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Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, 2021 SCC OnLine SC 1019

In a case where the Government caused unreasonable delay in considering the representation and thereafter failed to communicate the rejection to a person detained under Section 3(2) of National Security Act 1980 (NSA), the 3-judge bench of Dr. D.Y. Chandrachud, Vikram Seth and BV Nagarathna, JJ., held that the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were not sufficiently protected in the present case. Dr. D.Y. Chandrachud, J., observed that, “Preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards”.

“The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.”

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Jalkal Vibhag Nagar Nigam v. Pradeshiya Industrial and Investment Corporation, 2021 SCC OnLine SC 960

The 3-judge bench of Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ., upheld the validity of Sections 52 (1)(a), Section 55(b)(1) and Section 56 of the UP Water Supply and Sewerage Act, 1975 and held that the levy under Section 52 falls squarely under the ambit of Entry 49 of List II as it is in the nature of a tax and not a fee. The Court also went on to hold that the levy which is imposed under Section 52 is a tax on lands and buildings within the meaning of Entry 49 of List II.

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V. Nagarajan v. SKS Ispat and Power Ltd., 2021 SCC OnLine SC 959

Dealing with the question as to when will the clock for calculating the limitation period run for proceedings under the Insolvency and Bankruptcy Code (IBC), the bench of Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ., held that Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the “order is made available to the aggrieved party”, in contradistinction to Section 421(3) of the Companies Act.

“… the omission of the words “from the date on which the order is made available” for the purposes of computation of limitation in Section 61(2) of the IBC, is a consistent signal of the intention of the legislature to nudge the parties to be proactive and facilitate timely resolution.”

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CBI v. Thommandru Hannah Vijayalakshmi, 2021 SCC OnLine SC 923

The 3-judge bench of Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ., held that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption. The Court said that in case the information received by the CBI, through a complaint or a “source information”, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence. Holding that the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, Prevention of Corruption Act or even the CBI Manual, the Court said that issuing a direction to that affect will be “tantamount to stepping into the legislative domain.”

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Union of India v. VKC Footsteps India (P) Ltd., 2021 SCC OnLine SC 706

The division bench of Dr. DY Chandrachud and MR Shah, JJ has upheld the validity of Section 54(3) of the Central Goods and Services Tax Act, 2017 (CGST Act) which provides for refund of unutilised input tax credit (ITC) in certain cases.

“A claim to refund is governed by statute. There is no constitutional entitlement to seek a refund.”

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Saregama India Limited v. Next Radio Limited, 2021 SCC OnLine SC 817

The Division Bench comprising of Dr. D.Y. Chandrachud and B. V. Nagarathna, JJ., set aside the impugned interim order of Madras High Court holding it to be an attempt to re-write Rule 29(4) of the Copyright Rules 2013. The Bench remarked that, “The interim order converts the second proviso into a “routine procedure” instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out.”

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Jamia Masjid v. K.V. Rudrappa, 2021 SCC OnLine SC 792

In an important ruling on Res Judicata, the 3-judge bench of Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ., has held that the issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact.

“Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved”.

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Chief Election Commissioner of India v. M.R. Vijayabhaskar, 2021 SCC OnLine SC 364

In the instant matter, the Division Bench of Dr. D.Y. Chandrachud and M.R. Shah, JJ., addressed the larger issues of the freedom of speech and expression of the media, the right to information of citizens and the accountability of the judiciary to the nation, within the core question of “whether a constitutional body (the Election Commission of India) can set up a plea that constitutional status is an immunity from judicial oversight?” The Bench held that there was no substance in the prayer of the EC for restraining the media from reporting on court proceedings.

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

Distribution of Essential Supplies and Services During Pandemic, In re, 2021 SCC OnLine SC 372

The 3-judge bench of Dr. D.Y. Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., clarified that the purpose for taking the suo motu cognisance the “grim” situation of the country hit by the second wave of COVID-19 pandemic and non-availability of COVID-19 essentials was not to supplant or to substitute the judicial process which is being conducted in several High Courts across the country under Article 226 of the Constitution.

“The High Courts are well suited to make an assessment of the ground realities which prevail in each State and to find flexible solutions to deal with practical concerns of and the serious hardships faced by the citizens. Hence, there is no reason or justification to interdict the exercise of the jurisdiction of the High Courts in responding to the human problems faced by the citizens in the States and Union Territories and to find solutions with the cooperation of the authorities.”

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Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427

In a case where the Bombay High Court failed to evaluate even prima facie of the most basic issue, thereby refusing bail to the accused, the bench of Dr. D.Y. Chandrachud and Indira Banerjee, JJ., reminded the High Courts and District Courts of their duty to ensure human liberty. Justice Dr. D.Y. Chandrachud who authored the decision, observed that, “Law should not become a ruse for targeted harassment”.

“Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”.

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State of Gujarat v. Narayan, 2021 SCC OnLine SC 949

The bench of Dr. D.Y. Chandrachud and B.V. Nagarathna, JJ., formulated “broad, general” principles governing rules for granting parole and furlough, holding that parole and furlough are distinct in nature and that although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough.

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

In this major verdict, the bench of Dr. D.Y. Chandrachud and Ajay Rastogi, JJ., ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.

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Rajesh v. State of Haryana, (2021) 1 SCC 118

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., summarised the principles relating to conduct of a Test Identification Parade (TIP) and held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

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K.S. Puttaswamy v. Union of India (Privacy- 9 Judge),(2017) 10 SCC 1

Justice Chandrachud was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It permeates core of Preambular philosophy underlying “liberty” and “dignity” as also human concepts of “life” and “personal liberty” enshrined in Art. 21 and wide ranging freedoms guaranteed under Pt. III, considered essential for a meaningful human existence. Dr. Chandrachud, J., writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added,

“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”.

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Did you Know? The Privacy case also marked a unique moment in judicial history of India; as Justice Chandrachud overruled the ADM Jabalpur decision in which his father, Late Justice Y.V. Chandrachud was part of the majority. Terming the judgments rendered by the majority as “seriously flawed”, Dr. D.Y. Chandrachud, J., observed that-

H.R. Khanna, J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend”.

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

In this landmark 5 -Judge Bench decision which became instrumental in upholding the rights of the LGBT community, Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

In his concurring opinion, Dr. D.Y. Chandrachud, J., while stating that, “It is difficult to right the wrongs of history. But we can certainly set the course for the Future, held that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution.

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Joseph Shine v. Union of India,(2019) 3 SCC 39

The 5-Judge Constitution Bench 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. Referring to several foreign courts’ judgments and opinions of celebrated authors, Dr. Chandrachud, J. observed that-

“If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. Section 497 is founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Arbitrariness is writ large on the provision”.

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Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7 Judge Bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority Justice Chandrachud writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ., laid down the principles for promulgation of ordinances.

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Common Cause v. Union of India,(2018) 5 SCC 1

The 5-judge Constitution Bench of Dipak Misra, CJ., and AK Sikri, AM Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. In his concurring opinion, Dr. Chandrachud, J., observed that,

“While upholding the legality of passive euthanasia (voluntary and non-voluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function”.

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 Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. D.Y. Chandrachud, JJ., terming the instant case to be perfect example of, “patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel”, set aside the verdict of Kerala High Court wherein it had annulled the marriage between two consenting adults, namely, Hadiya and Shafin Jahan. Noting that the Kerala HC erred in its decision, Dr. D.Y. Chandrachud, J., in his concurring opinion, came down heavily upon the Kerala HC, stating that,

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a “just” way of life or “correct” course of living for Hadiya. She has absolute autonomy over her person. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226. The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus petition. How Hadiya chooses to lead her life is entirely a matter of her choice”.

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Notable Dissents


Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1

Seeking a review of the decision delivered by the Constitution Bench of the Supreme Court in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1, the 5 Judge Bench of the Court comprising of A.M. Khanwilkar, Dr. D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., with a ratio of 4:1 dismissed this petition, while observing that, change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review.

However, Justice Dr. D.Y. Chandrachud gave his dissenting opinion on the issue and observed that constitutional principles of consistency and rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.

“It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently”.

K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge),(2019) 1 SCC 1

The 5- Judge Bench comprising of CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., by a majority of 4:1, upheld the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. Justice Chandrachud gave a 23-point conclusion to the opinion wherein he dissented from the majority. In his opinion, the entire Aadhaar programme, since 2009, suffers from the constitutional infirmities and violations of fundamental rights-

“Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy”.

In a sharp criticism on passing of the Aaadhar Act as Money Bill within the meaning of Art.110 of the Constitution, Dr. Chandrachud, J., observed that-

“There is a constitutional trust which attaches to the empowerment of the Speaker of the Lok Sabha to decide whether a legislative measure is a Money Bill. Entrustment of the authority to decide is founded on the expectation that the Speaker of the Lok Sabha will not dilute the existence of a coordinate institution in a bicameral legislature. A constitutional trust has been vested in the office of the Speaker of the Lok Sabha. By declaring an ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya Sabha. This power cannot be unbridled or bereft of judicial scrutiny”. 

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Jindal Stainless Ltd v. State of Haryana,(2017) 12 SCC 1

The 9-judge bench, by a ratio of 7:2, 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”. Delivering a dissenting opinion Dr. D.Y. Chandrachud, J., observed that,

“In order to determine whether a law providing for the imposition of a tax constitutes a restriction on the freedom of trade, commerce and intercourse, the principle that must be applied is whether the direct and inevitable effect or consequence of the law is to impede trade and commerce. The direct and inevitable consequence for the purposes of Part XIII of the Constitution is not the same as an infringement of the fundamental right to carry on an occupation, trade or business under Article 19(1)(g)”. He further observed that, “Article 301 sub-serves the constitutional goal of integrating the nation into an economic entity comprising of a common market for goods and services”.

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Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629 

In a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters’. Writing the dissenting opinion for himself and Adarsh K. Goel and U.U. Lalit, JJ.; Dr. D.Y. Chandrachud, J., observed that ‘his’ as in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. Dr. Chandrachud, J., made a very significant observation in his dissent-

“Our Constitution recognises the broad diversity of India and, as a political document, seeks to foster a sense of inclusion. It seeks to wield a nation where its citizens practise different religions, speak varieties of languages, belong to various castes and are of different communities into the concept of one nationhood. The Indian State has no religion nor does the Constitution recognise any religion as a religion of the State. India is not a theocratic State but a secular nation in which there is a respect for and acceptance of the equality between religions”.

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Romila Thapar v. Union of India, (2018) 10 SCC 753 

In the instant case wherein 5 human rights activists were charged and arrested under the provisions of Unlawful Activities (Prevention) Act, 1967 and the 3 Judge Bench of the Court with a ratio of 2:1 (Dipak Misra CJ., and A.M. Khanwilkar, J.) rejected their prayer seeking appointment of SIT and court-monitored investigation; Justice D.Y. Chandrachud dissented with the majority. He observed that, “Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”. Taking the view that a Special Investigating Team should be appointed to pursue the matter, Dr. Chandrachud, J., stated that,

“The purpose of the direction which I propose to give is to ensure that the basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty”.


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

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