Case BriefsHigh Courts

Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru: Vani A. Shetty, XVII Additional Judge, Court of Small Causes & ACMM, addressed a matter with respect to the liability of the accused in a case of dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881.

In the present case, the accused was tried for the offence punishable under Section 138 of the Negotiable Instruments Act.

Factual Background

Complainant with an intention to have a South Africa trip paid Rs 24 lakhs to the accused to book the tickets. But the accused failed to book the tickets and repaid a sum of Rs 14.5 lakhs to the complainant and sought time for the payment of balance amount of Rs 9.5 lakhs. Towards the discharge of the said liability, the accused issued a cheque for Rs 4,50,000 assuring that the cheque would be honoured if presented for payment.

But the cheque came to be dishonoured on the grounds of ‘payment stopped by drawer’. Thereafter the complainant got issued a legal notice demanding repayment of the cheque amount within 15 days. Due to no response from the accused, an instant complaint was filed.

In view of sufficient ground to proceed further, a criminal case was registered against the accused, and she was summoned.

Question for Consideration:

Whether the complainant proved that the accused has committed an offence punishable under Section 138 of the NI Act, 1881?

Analysis, Law and Decision

While analyzing the matter, Bench stated that in order to constitute an offence under Section 138 NI Act, the cheque shall be presented to the bank within a period of 3 months from its date. On dishonour of cheque, the drawer or holder of the cheque may cause demand notice within 30 days from the date of dishonour, demanding to repay within 15 days from the date of service of the notice.

“If the drawer of the cheque fails to repay the amount within 15 days from the date of service of notice, the cause of action arises for filing the complaint.”

In the present matter, the complainant had complied with all the mandatory requirements of Section 138 and 142 of the NI Act.

Section 118 of the NI Act lays down that until the contrary Is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration.

Section 139 NI Act contemplated that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole of any debt or liability.

In a catena of decisions, it has been repeatedly observed that in the proceeding under Section 138 of NI Act, the complainant is not required to establish either the legality or the enforceability of the debt or liability since he can avail the benefit of presumption under Sections 118 and 139 of the NI Act in his favour.

Further, it was observed that by virtue of the presumptions, accused had to establish that the cheque in question was not issued towards any legally enforceable debt or liability.

Later in the year 2006, the Supreme Court in the decision of M.S. Narayan Menon v. State of Kerala, (2006 SAR Crl. 616), has held that the presumption available under Section 118 and 139 of N.I. Act can be rebutted by raising a probable defence and the onus cast upon the accused is not as heavy as that of the prosecution.

Further, in the Supreme Court decision of Krishna Janarshana Bhat v. Dattatreya G. Hegde, (2008 Vo.II SCC Crl.166), the Supreme Court held that the existence of legally recoverable debt was not a presumption under Section 138 NI Act and the accused has a constitutional right to maintain silence and therefore, the doctrine of reverse burden introduced by Section 139 of the NI Act should be delicately balanced.

Bench, in conclusion, observed that the presumption mandated by Section 139 of NI Act does indeed include the existence of legally enforceable debt or liability, it is a rebuttable presumption, open to the accused to raise defence wherein the existence of the legally enforceable debt or liability can be contested.

If the accused is able to raise a probable defence, which creates doubt about the existence of legally enforceable debt or liability, the onus shifts back to the complainant.

Court stated that if the accused was able to probabalise that the disputed cheque was issued due to the intervention and pressure of the police, it may not be justified to draw the presumption contemplated under Section 139 NI Act.

It was added that if the police would have really interfered, the accused could have produced some evidence to show the intervention of the police. But there was absolutely no evidence on record to show that cheque was issued either due to pressure of police or due to some other compulsion.

In Court’s opinion, the Court was required to draw the presumption under Section 139 NI Act in favour of the complainant.

Court noted that in the present matter, accused at no point in time asked the complainant to pay the balance amount. Instead, she had kept quiet by enjoying the huge amount of Rs 24 lakhs which clearly indicated that the non-purchase of the ticket was not on account of the non-payment of the remaining amount. Further, there was no forfeiture clause.

For the above, Bench stated that in the absence of the forfeiture clause, the accused could not have retained the amount of the complainant with her, the said was barred by the doctrine of unlawful enrichment under Section 70 of the Indian Contract Act, 1872.

Hence, even if it was held that the complainant was a defaulter in respect of the payment of the remaining amount, the accused was legally liable to repay the amount received by her from the complainant.

In view of the above reasons, guilt of the accused was proved under Section 138 NI Act. [Srinivas Builders and Developers v. Shyalaja, CC No. 57792 of 2018, decided on 13-10-201]


Advocates before the Court:

For the Complainant: V.N.R., Advocate

For the Accused: J.R., Advocate

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., refused to discharge an Income Tax Officer from charges under the Prevention of Corruption Act. The applicant Income Tax Officer was accused of demanding a bribe.

Applicant while working as an income tax officer demanded a bribe of Rs 10 lakhs from the complainant to ignore all the disputed cash deposits and discrepancy noticed with regard to the sale consideration of a property in relation to the assessment proceedings of the complainant’s daughter. In the said assessment proceedings, the complainant’s daughter was represented by accused 2.

Accused 2 informed the complainant and his wife that applicant demanded Rs 10 lakhs to ignore the discrepancies and disputed cash deposits, and if not paid, he would impose additional tax and penalty, which could be around Rs 1 Crore and 81 lakhs.

Complainant stated that he explained the queries raised by the applicant/income tax officer. However, applicant emphasized that transactions reflected in the bank account would be taxable.

According to the complainant, during the meeting, applicant demanded Rs 10 lakhs to ignore all the queries, after which demand was scaled down to Rs 5 lakhs for ignoring the queries except the cash transactions.

The complainant recorded the conversation transcript of the recorded conversation, divulged tacit approval of the applicant to favour the complainant by ignoring certain queries. Transcript further divulged that applicant consented to accept the bribe money, which he demanded on 29-12-2016 through Chartered Accountant.  Every right from verification of the complaint till recording the conversation was noted in the panchanama.

Transcript of the recorded conversation revealed implicit approval of the applicant to show favour in assessment proceedings of complainant’s daughter against the reward of Rs 50,000 which was to be paid to accused on behalf of the applicant.

Prosecutor submitted that transcript of recorded conversation between the complainant and the C.A. clearly revealed demand of bribe money and its acceptance through the CA. Further, it was argued that the impugned order does not suffer any infirmity or material irregularity and/or illegality and thus this Court in its revisional jurisdiction may not appreciate the material on record and interfere in impugned order.

Law relating to the power of the Sessions Court to discharge the accused has been well settled in the decision of State of Maharashtra v. Priya Sharan Maharaj, (1997) 4 SCC 393; Niranjan Singh Punjabi v. Jitendra Bijaya, (1990) 4 SCC 76.

Law is:

at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for  presuming that the accused has committed offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.’

Analysis, Law and Decision

In the present matter, Court noted that the applicant was an income-tax officer and complainant’s daughter’s tax assessment proceedings were before him.

Crux of the complaint was the bribe money, demanded by the applicant to ignore cash credits.

In Court’s opinion, the primary evaluation of the transcript of the conversation, it was revealed that the demand of the money and tacit approval to its acceptance was demanded in presence of C.A.

The material of record also showed tainted currency notes which were recovered from the C.A. on the same day. Thus, transcript of the conversation confirmed the material allegations made in the complaint.

Hence, the material before the Court disclosed grave suspicion suggesting complicity of the applicant.

Court found no material on record to come to the conclusion that there is no sufficient ground to proceed against the applicant.

Application was dismissed in view of the above. [Naveen Kumar Aggarwal v. State of Maharashtra, Revision Application No. 179 of 2020, decided on 14-10-2021]


Advocates before the Court:

Rajendra Shirodkar, Senior Advocate with Mihir Ghag i/by Archit Sakhalkar for the applicant.

Sharmila Kaushik, APP for the respondent1-State

Ameeta Kuttikrishnan, for respondent 2.

Cases ReportedSupreme Court Cases

Courts, Tribunals and Judiciary — Courts, Tribunals and Special Courts — Tribunals: Extensive directions issued by Supreme Court relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities. [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020. [Madras Bar Assn. v. Union of India, (2021) 7 SCC 369]

Courts, Tribunals and Judiciary — Courts, Tribunals and Special Courts — Tribunals: Search and Selection Committees to be constituted as per directions issued in Madras Bar Assn., (2021) 7 SCC 369. Modification suggested by Attorney General regarding composition of Committees, not objected to by Amicus Curiae, accepted. [Madras Bar Assn. v. Union of India, (2021) 7 SCC 409]

Criminal Procedure Code, 1973 — S. 439 — Bail — Successive bail applications upon denial/cancellation of bail on earlier occasions — Circumstances whether had changed sufficiently to warrant grant of bail: In this case, bail was granted by High Court on fourth bail application of accused without assigning any reasons. Accused, main conspirator in crime led to killing of one person. Earlier grant of bail to accused by High Court was cancelled by Supreme Court on finding of prima facie material against him. Thereafter, mere examination of principal star witness (wife of deceased), held, cannot be considered as change in circumstance for High Court to reconsider fourth bail application of accused and enlarge him on bail. Therefore, impugned order passed by High Court is not sustainable, hence, set aside. Bail granted to accused, cancelled. [Mamta Nair v. State of Rajasthan, (2021) 7 SCC 442]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — COVID-19 Pandemic: CBSE and ICSE Boards decided to cancel Class XII Board Examination and presented schemes, though slightly different, to award marks for Class XII/ Said schemes, prima facie, held, acceptable subject to conditions. Prayer to revisit said decision to cancel Class XII CBSE and ICSE Board Examination, rejected and clarifications and directions issued. [Mamta Sharma v. CBSE, (2021) 7 SCC 364]

Income Tax Act, 1961 — S. 254(2-A) (as amended by the Finance Act, 2008 w.e.f. 1-10-2008): Third proviso to S. 254(2-A), limiting extension of stay order to a maximum period of 365 days i.e. there would be automatic vacation of the stayafter 365 days, even where assessee is not responsible for delay in hearing the appeal, is invalid. Existence of discrimination as well as manifest arbitrariness in such provision being violative of Art. 14 of the Constitution. Treatment of unequals as equals i.e. assessees responsible for delay, in the same manner as those not responsible for it, is not permissible. Thus, held, third proviso to S. 254(2-A) shall be read down i.e. it is to be read without the word “even” and the words “is not” after the words “delay in disposing of the appeal”. That is to say, the net result, held, is that any order of stay shall stand vacated after the expiry of the period or periods mentioned in the Section only if the delay in disposing of the appeal is attributable to the assessee. [CIT v. Pepsi Foods Ltd., (2021) 7 SCC 413]

Insolvency and Bankruptcy Code, 2016 — S. 238-A r/w S. 7 — Time-barred debts — Non-entertainability of — Condonation of delay — Denial of, when delay is highly excessive i.e. nearly 15 years and debt barred by limitation: Art. 137 of the Limitation Act gets attracted to applications filed under Ss. 7 and 9 IBC. The right to sue accrues when a default occurs, and if that default has occurred over three years prior to the date of filing of an application under S. 7 IBC, the application would be barred under Art. 137 of the Limitation Act. [Reliance Asset Reconstruction Co. Ltd. v. Hotel Poonja International (P) Ltd., (2021) 7 SCC 352]

Insolvency and Bankruptcy Code, 2016 — S. 60(5) — Residuary power of NCLT — When may be exercised/limitations upon: Considering the text of S. 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the corporate debtor. However, in doing do, NCLT and NCLAT have to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one that does not arise solely from or relate to the insolvency of the corporate debtor. Further, the residuary jurisdiction of NCLT under S. 60(5)(c) provides it a wide discretion to adjudicate questions of law or fact arising from or in relation to the insolvency resolution proceedings, but only in relation to insolvency resolution proceedings. [Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta, (2021) 7 SCC 209]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A and 7: S. 14 of the Limitation Act, 1963 i.e. for exclusion of time in proceeding bona fide wrong court or forum is applicable to applications preferred under S. 7 IBC once it is shown that all conditions for application of S. 14 of the Limitation Act are satisfied in the facts of the case. The expression “as far as may be” (in ref. to S. 238-A) is indicative of the fact that all or any of the provisions of the Limitation Act may not apply to proceedings before the adjudicating authority (NCLT) or the appellate authority (NCLAT) if they are patently inconsistent with some provisions of the IBC. The words “as far as may be” cannot be construed as a total exclusion of the requirements of the basic principles of S. 14 of the Limitation Act, but permit a wider, more liberal, contextual and purposive interpretation by necessary modification, which is in harmony with the principles of the said section. [Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd., (2021) 7 SCC 313]

Registration Act, 1908 — S. 17(2)(vi) and Ss. 17(1)(b) & (c): Second part of S. 17(2)(vi) which is an exception to the exception carved out by S. 17(2)(vi), and hence to which said second part, Ss. 17(1)(b) & (c) normally apply. Ss. 17(1)(b) & (c) are not applicable to compromise decree comprising immovable property other than that which is subject-matter of the suit, when compromise in question pertains only to pre-existing rights i.e. no new right, title or interest in immovable property is created vide the compromise in question. Family settlement/compromise, or, settlement/compromise in respect of family property are exempt from compulsory registration so long as they pertain to pre-existing rights of the parties and no new right, title or interest is created vide such settlement or compromise. Principles explained regarding the same. [Ripudaman Singh v. Tikka Maheshwar Chand, (2021) 7 SCC 446]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma CJ and Sachin Shankar Magadum J allowed the petition, quashed the initial allotment of the site to respondent 3 and sets aside the allotment order made in favour of respondent 3.

The facts of the case are such that PIL was filed on the ground that a civic amenity site No. 35, situated at 5th phase, Yelahanka New Town, Bengaluru, was allotted by the Karnataka Housing Board (KHB) to  Murthy Charitable Trust respondent 3, and there were specific conditions like the allottee was required to construct a building suitable for Education and public service within a period of two years and that the Housing Board shall be entitled to cancel the allotment without issuing any notice after expiry of five years. As no construction was carried out, KHB then executed an absolute sale deed in favour of respondent 3 for a sum of Rs 3,87,000/-. The value of the land is more than 10 Crores and an additional amount was received by KHB i.e., Rs 18, 00,000/- for additional area allotted to respondent No.3. Undisputedly, at no point of time, the procedure provided under the Karnataka Housing Board (allotment) Regulations, 1983 was followed.

Counsel for KHB submitted that PIL is not maintainable in the facts and circumstances of the case and the petitioner cannot seek cancellation of a registered document in exercise of writ jurisdiction under Article 226 of the Constitution of India and the petitioner has to take shelter of the provisions of the Specific Relief Act.

The Court observed that “The most shocking aspect of the case is that an instrumentality of the State i.e., KHB has allotted the site in question without following the allotment regulations. There is a detailed procedure provided under the KHB Regulations for allotment of sites and the procedure has not been followed at all especially when the site was reserved as a Civic Amenity Site.” 

The Court further observed that the provisions of KHB Act of 1962 and KHB (Allotment) Regulations, 1983 makes it very clear that a site can be allotted / can be sold only through a transparent process that too after wide publicity through tender notice/auction notice.

The Court observed that State largesse should not be marred by any arbitrariness. Fairness, in the action of the State or local bodies or instrumentalities of the State while leasing out / disposing any public property is a sine qua non. The State and the instrumentality of the State are required to follow a transparent procedure. The statutory provisions as contained under the Act and the Regulations are required to be followed. However, in the present case favoritism has been done by respondent 2 to respondent 3 without following the prescribed procedure.

The Court held that in the present case, the land has been allotted by the KHB without following a transparent procedure. Therefore, “the allotment order, as well as the subsequent sale deed in favour of respondent No.3, deserves to be quashed.”

[Adinarayan Shetty v. Principal Secretary, Writ Petition 9616 of 2020, decided on 30-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioners: Mr Sunil Kumar H.

For respondents: Mr Vijayakumar Patil, Mr B J Mahesh, Mr Chandrashekhar, and Mr H S Prashanth

Case BriefsDistrict Court

Saket Courts, New Delhi: Swati Gupta, Metropolitan Magistrate reiterated what is expected of an accused to rebut the statutory presumption against him in cases of cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881.

Brief facts

Complainant and accused had entered into an agreement to sell the property owned by the wife of accused for a total sale consideration of Rs 58 lakhs. The said property was to be purchased in the name of the wife of the complainant.

For the above said purchase complainant made an advance payment of Rs 24 lakhs to the accused. Later, the accused backed out of the deal and was liable to return the amount paid by the complainant as advance. Further, to discharge his liability, in part, the accused issued the cheque for a sum of Rs 5 lakhs in favour of the complainant.

When the complainant presented the cheque in question for encashment at his bank, the said cheque was returned unpaid with remarks “payment stopped by drawer”.

Thereafter, the complainant issued a legal demand notice to the accused, demanding payment of the dishonoured cheque amount. Despite the notice, the amount was not paid within 15 days mandatory payment.

In view of the above background, the present complaint under Section 138 of the Negotiable Instruments Act, 1881 was moved before the Court.

Settled Legal Position of Law

Under Section 138 of the NI Act against the accused, the complainant must prove the following:

(i) the accused issued a cheque on an account maintained by him with a bank.

(ii) the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.

(iii) the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.

(iv) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.

(v) the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.

(vi) the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.

The Court noted that the complainant discharged its initial burden and successfully established the above-stated ingredients of offence under Section 138 of the NI Act against the accused.

Rebuttal of the Mandatory Presumption

It is settled law that the presumptions may be rebutted by the accused either by leading direct evidence and in exceptional cases from the case set out by the complainant himself. The burden of proof was to be discharged by the accused on a preponderance of probabilities.

Further, the presumption under Section 139 of the NI Act cannot be rebutted upon a mere denial. The same can be rebutted by the accused only by leading cogent evidence.

The Court found that admittedly, Rs 24 lakhs were paid by the complainant to the accused towards advance payment for purchase of the subject property, The cancellation agreement specifying the details of the cheque in question was also admittedly, executed between the accused and the complainant.

The cheque in question was issued by the accused to the complainant in discharge of part liability in pursuance of the cancellation agreement.

In the Court’s opinion, the accused miserably failed to rebut the mandatory presumptions under Section 118(a) and 139 of the NI Act even on a preponderance of probabilities, while the complainant succeeded in proving his case beyond reasonable doubt.

Therefore, accused was held guilty and convicted of the offence under Section 138 of the NI Act. [Ramesh Kumar v. Balwant Singh, CT No. 466077 of 2016, decided on 12-10-2021]

Case BriefsDistrict Court

Family Court Pune: M.R. Kale, J., granted a decree of divorce by mutual consent to a couple who due to difference of opinion and incompatibility of their temperament could not live together.

Instant petition was filed for dissolving the marriage by a decree of divorce by mutual consent under Section 28 of the Special Marriage Act, 1954.

The petition was filed through petitioners’ power of attorney holders.

Due to the differences of opinion and incompatibility of temperament, both the petitioners have not been able to live together as husband and wife, and hence, they started residing separately. Efforts for reconciliation were made but they failed, hence the petition for divorce by mutual consent was filed jointly and voluntarily.

Whether the present case is fit for granting a decree of divorce under Section 28 of the Special Marriage Act, 1954?

Analysis, Law and Decision

Instant petition was filed by the power of attorney holders of petitioners 1 and 2, six months after filing of the petition.

Petition was filed by power of attorney holders of petitioners 1 and 2 which means the 6-months period was over after filing the petition.

Petitioner 1 had file affidavit which was duly attested before Notary Public, Birmingham as she was residing in England. Petitioner’s advocate filed an application for video conferencing of petitioner 1 as she stayed in England which was allowed.

Affidavit of petitioner 1 was verified through video conferencing. She had been identified by her husband. In support of their statement, petitioner 2 had filed his affidavit in person. Court inquired with petitioner 2 through video conferencing as he stayed at Ahmedabad, Gujarat. It seemed that both petitioners were living separately since last more than one year prior to the presentation of the present petition. Hence. There was no bar to allowing the present petition under the provisions of law.

Court through video conferencing inquired with petitioner 1 about maintenance and immovable properties.

No claim was pending amongst the parties.

Both the petitioners have mentioned in their respective affidavits that they cannot live together and their consent for divorce is voluntary.

Power of attorney holder of petitioners 1 and 2 submitted a copy of the certificate of marriage and copies of their Aadhar card to prove that marriage is solemnized.

Lastly, the High Court concluded by stating that it was evident that due to difference of opinion and incompatibility of their temperament husband and wife cannot live together and there cannot be a happy married life between the petitioners.

Therefore, they were entitled to a decree of divorce by mutual consent. [A v. B, Petition No. F – 675 of 2021, decided on 11-10-2021]


Advocate for petitioners 1 and 2: Mayur and Ajinkya Salunke

Appointments & TransfersNews

President of India appoints the following Advocates as Judges of the Gujarat High Courts w.e.f. the date they assume charge of their respective offices:-

Sl. No. Name (S/Shri)
1. Smt. Mauna Manish Bhatt
2. Samir Jyotindraprasad Dave
3. Hemant MaheshchandraPrachchhak
4. Sandeep Natvarlal Bhatt
5. Aniruddha Pradyumna Mayee
6. NiralRashmikant Mehta
7. Ms. Nisha Mahendrabhai Thakore

Ministry of Law and Justice

[Dt. 16-10-2021]

Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., while making certain significant observations stated that,

An educational institute certainly contributes in creating ideal citizens. Human virtues and morals can never remain the same. It is thus more important that an endeavour of an educational institution should be to impart such education, so that the basic human values and good virtues are inculcated in the students, to make them ideal citizens.

Whether our educational institutions are so weak that they would fear that the students would get adversely affected, if there is a restaurant having a liquor licence in the vicinity of their schools, is an issue falling for consideration in the instant case.

It was stated that respondent 3 was holding an FL-III licence which was initially granted to him for his hotel namely Hotel Moonlight. Respondent 1 had applied for transfer of the said licence.

The above-said licence was rejected on the ground that such transfer of the liquor licence cannot be permitted considering the objections which were raised by the petitioners who were running a school in the vicinity of the place where the licence was intended to be transferred and that granting such a transfer would lead to an impending law and order situation.

Respondent 3 aggrieved by the Collector’s order of rejecting his application for transfer of the licence, approached the appellate authority.

Appellate authority considering the provisions of the rules observed that the distance from the educational institution and respondent 3’s premises was 144 meters from the nearest gate, by which ordinarily a pedestrian would take the nearest path to reach. It was also observed that the Collector had in fact considered that the distance from the main gate of the educational institution of the petitioners to the premises of respondent 3 was mentioned as 450 meters and that for a functioning FL-III licence, the required distance was 375 meters. It was observed that there was no assessment or any material from the police department that there might be a law and order situation.

Appellate Authority allowed the shifting/transfer of the said licence.

Petitioners being aggrieved filed a revision before the State Excise Department under Section 138 of the Maharashtra Prohibition Act, 1949.  But revisional authority on noting the distance dismissed the petitioner’s application.

Analysis, Law and Decision

Bench noted that the Collector had rejected the transfer application only on the basis of ‘law and order’ situation and considering the representations made by the member of the parliament and other MLAs.

In Court’s opinion, the above-stated rules were completely outside the purview of the rules as also were unsupported by any materials on record.

The said reasons were given under political pressure, whereas the appellate authority did not succumb to any political pressure and gave a reasoned order.

Court found substance in the contention raised on behalf of respondent 2 that the appellate authority as also the revisional authority have taken into consideration the report which was undisputed to consider that the distance between petitioners’ educational institution and the premises of respondent 3 where the licence was sought to be transferred was as per the requirement under the said rules.

Rule 45(1)(c) provides that the distance to be maintained should be upto 75 meters and that the licence be not granted within 75 meters of any educational or religious institution inter-alia the educational institution of the petitioners.

High Court stated that the petitioner’s institution ought not to have formed such opinion that the education being imparted by their educational institution was so fragile that the students would get easily influenced by a restaurant serving liquor in the vicinity. This is for two-fold reasons:

  • Firstly, this educational institution was never bothered about a similar restaurant having a liquor licence functioning in the vicinity since the last 10 to 12 years.
  • Secondly and most importantly, if the quality of learning and inculcation of moral values in the children is to be of a standard, as what the ‘Father of the Nation’ intended to imbibe in our citizens, then the petitioner’s institution ought not to have worried at all, about any student being adversely affected, by any such place in the vicinity of the school.

Further, Court observed that it would be imperative for educational institutions to create students with strong moral values so as to prepare them to face tougher journeys and challenges in life.

In view of the above, petition was rejected. [Devram Sawleram Mundhe v. State of Maharashtra, WP No. 4918 of 2021, decided on 12-10-2021]


Advocates before the Court:

P.N. Joshi i/b. Milind Deshmukh for Petitioners.

P.P. Kakade, GP with C.D. Mali, AGP for the State.

Moinuddin M.Khan i/b. M. Khan for Respondent 3.

Cases ReportedSupreme Court Cases

In Part 1 of Volume 7, read this very interesting article titled: Personal Guarantors of Corporate Debtors Finally in the Net of IBC by Sunil Gupta,(2021) 7 SCC (J-1) analysing and explaining the verdict of Lalit Kumar Jain v. Union of India, (2021) 9 SCC 321 stressing upon the two contentions advanced by Personal Guarantors of the Corporate Debtors.


Arbitration and Conciliation Act, 1996 — Pt. II & S. 44 and Pt. I: Foreign-seated international commercial arbitration between two Indians/Indian entities i.e. with seat of arbitration outside India, held, permissible. Pt. II of the Act would be applicable to such arbitration, as opposed to Pt. I. Further held, agreement providing for such arbitration does not amount to an agreement in restraint of legal proceedings i.e. is not violative of S. 28 of the Contract Act, 1872. Nor does such agreement violate S. 23 of the Contract Act, 1872. Award passed in such arbitration proceedings would be considered, as foreign award so as to be enforceable in India in terms of Pt. II of the A&C Act, 1996. [Pasl Wind Solutions (P) Ltd. v. GE Power Conversion (India) (P) Ltd., (2021) 7 SCC 1]

Constitution of India — Art. 137: Bench hunting through mode of review, stringently deprecated. [Vedanta Ltd. v. Goa Foundation, (2021) 7 SCC 206]

Criminal Procedure Code, 1973 — Ss. 439, 357, 250(1), 372 and 235(2) — Stage of grant of bail — Determination and payment of compensation as a pre-condition for grant of bail: Compensation cannot be determined at stage of consideration of grant of bail. However, this does not rule out the imposition of other monetary conditions as precondition(s) for grant of bail. [Dharmesh v. State of Gujarat, (2021) 7 SCC 198]

Income Tax Act, 1961 — S. 80-P(2)(a)(i) and S. 80-P(4) (as introduced by Finance Act 21 of 2006 w.e.f. 1-4-2007): Entitlement of Cooperative societies to benefit of deductions available under S. 80-P, generally, discussed. Deductions under S. 80-P, when and to what extent can be availed, principles summarized. [Mavilayi Service Coop. Bank Ltd. v. CIT, (2021) 7 SCC 90]

Income Tax Act, 1961 — Ss. 143, 144 and 68 — Concealment of income — Whether established — Proper disclosure of sources of income, but at penalty proceedings stage — Effect of: Once sources of income were disclosed on affidavit and recorded statements of persons concerned in penalty proceedings, held, it could no longer be said that the amounts in question were income from undisclosed sources. [Basir Ahmed Sisodiya v. CIT, (2021) 7 SCC 136]

Motor Vehicles Act, 1988 — Ss. 147 and 166 — Liability of insurer — Determination of: In this case, insurance policy covered risk of third parties including unnamed passengers, in respect of which premium was duly paid. Another clause covered “employees” such as driver and cleaner upon payment of additional premium, but such additional premium not paid in respect of this “employees” clause. While determining that deceased if was an “employee” of assured so as to not be covered by policy, or, fell in category of unnamed passenger, as he was contractually engaged and not a regular employee, the Supreme Court held that insurance company would be liable under policy to pay compensation in case of death to unnamed passengers other than insured and his paid driver or cleaner, deceased being one such unnamed passenger, as premium had been paid in respect of unnamed passengers. [Sushilaben Indravadan Gandhi v. New India Assurance Co. Ltd., (2021) 7 SCC 151]

 Penal Code, 1860 — S. 498-A: Conviction of parents-in-law of deceased living in separate house, for alleged harassment meted out to her, held not sustainable in this case as there was absence of direct evidence against them. Hence, their conviction was not maintainable on probability. They were entitled to benefit of doubt. Hence, their conviction stood set aside. [R. Natarajan v. State of T.N., (2021) 7 SCC 204]

Penal Code, 1860 — Ss. 302/34: In this case, death of deceased was due to gunshot injury and injuries by knife/sharp weapon. After appreciation of evidence, the Supreme Court observed that conviction of 3 accused persons under S. 302 r/w S. 34, was rightly upheld by High Court. [Rakesh v. State of U.P., (2021) 7 SCC 188]

Personal Guarantors of Corporate Debtors and IBC: Personal Guarantors of the Corporate Debtors advanced two main contentions before the Court in Lalit Kumar Jain v. Union of India, (2021) 9 SCC 321. The short study in this article with the help of the statutory background of IBC (including certain amendments in IBC) is an endeavour to analyse and explain the said verdict on those two contentions in simple terms. Personal Guarantors of Corporate Debtors Finally In the Net of IBC by Sunil Gupta [(2021) 7 SCC (J-1)]

Case BriefsHigh Courts

Madras High Court: G. Jayachandran, J., decided a matter with regard to infringing the registered trademark BHARATMATRIMONY.

Present suit was filed for injunction restraining the defendant, men and agent from infringing the plaintiff’s registered trademark BHARATMATRIMONY and its variant.

Plaintiff’s company was registered in using the internet as a platform for matrimonial alliance and have been in business since 2001.

Plaintiff enjoys tremendous goodwill throughout India and abroad. The internet business of the plaintiff started in the year 1997, having its domain name as www.bharatmatrimony.com. Plaintiff registered several other domain names based on language and religion to cater for the needs of the regional customer.

In order to protect the mark and exclusively enjoy the plaintiff registered the domain name www.bharatmatrimony.com

Further, it was stated that, in order to take advantage of the reputation and wide acceptance by the public, the defendant herein had adopted the identical mark of the plaintiff for its online business. The said adoption www.bharatmatrimony.org was with intention to ride its goodwill and reputation and was not honest, but with malafide intention to cause deception and confusion to the users in order to gain illicit benefit.

Adding to the above it was stated that when the plaintiff came to know this unauthorized use and wrongful exploitation the name used for the plaintiff’s trademark by the defendant, notice was served on the defendant to cease and deceit from adopting the mark which was identical that of the plaintiff’s trademark BHARATMATRIMONY.

Cause of filing the suit

Since the defendant failed to restrain itself from deceptively, illegally adopting the plaintiff’s trademark, the present suit was filed.

This Court had granted interim injunction being prima facie satisfied about the alleged copyright infringement by respondent/defendant.

High Court was satisfied that the user name BHARATMATRIMONY was being used by the plaintiff since 1997 and the domain name www.bharatmatrimony.com since 1999 had been dishonestly adopted by the defendant for its domain name, while its trade name is www.siliconinfo.com. On serving cease and deceit notice, the defendant did not respond to justify the adoption of the domain name.

Court expressed that defendant adopted the domain name www.bharatmatrimony.org which was squarely prohibited under Section 29 of the Trademark Act as infringement. Under Section 29(3), if the identical mark used for identical service, the Court shall presume the infringement.

Present matter is a case where the identical mark for identical service is adopted by the defendant and no justification came forward from the defendant, despite affording opportunity.

Therefore, the present suit was allowed in respect of the injunction relief against infringement.

Therefore the plaintiff was entitled to the following reliefs:

(a). A permanent injunction restraining the defendant, by themselves, their directors, partners, men, servants, agents, broadcasters, representatives, advertisers, franchisees, licensees and/or all other persons acting on their behalf from in any manner infringing and/or enabling others to infringe plaintiff’s registered trademarks BHARATMATRIMONY and/or its variants by using the identical trademark BHARATMATRIMONY as part of the Domain name or in any other manner whatsoever;

(b). A permanent injunction restraining the defendant, by themselves, their directors, partners, men, servants, agents, broadcasters, representatives, advertisers, franchisees, licensees and/or all other persons acting on their behalf from in any manner diverting the plaintiff’s business to themselves by using Google’s search engine in which the plaintiff’s trademark BHARATMATRIONY and domain name BHARATMATRIONY. ORG and/or its variants, by using as domain name and/or as meta tags and thereby passing off the business and services of the defendant as that of the plaintiff or in any other manner whatsoever;

(c). A permanent injunction restraining the defendant, themselves, their partners, successors-in-business, servants, agents, representatives, assigns and all other persons claiming under them and through them from using or redirecting to the domain name www.bharatmatrimony.org or any other domain name that is identical and/or deceptively similar to that of the plaintiff’s domain name www.bharatmatrimony.com in any manner whatsoever;

(d). The defendant be directed to surrender to the plaintiff for destruction all compact discs, master copy, advertising materials, pamphlets, brochures, etc. which bears the plaintiff’s registered trademarks and/or any other variants which is phonetically and/or deceptively identical and/or similar to the plaintiff’s registered trademarks or in any other form whatsoever.

[Matrimony.com Ltd. v. Silicon Valley Infomedia (P) Ltd., 2021 SCC OnLine Mad 5463, decided on 6-10-2021]


Advocates who appeared in this case:

For Plaintiff: Mr Arun C. Mohan

For Defendant: No appearance

Cases ReportedSupreme Court Cases

Criminal Procedure Code, 1973 — S. 439 — Bail: In this case, application for bail, by petitioner accused, a sitting MP was rejected by Single Judge of High Court. Custodial torture of petitioner was alleged before Division Bench of High Court which directed his medical examination. Both aforesaid orders were challenged. As injuries of petitioner before the Supreme Court were noticed in medical reports, considering totality of facts and circumstances, as well as keeping in view directions issued by Magistrate and also High Court at various stages, appropriate directions were issued by Supreme Court. [Kanumuri Raghurama Krishnam Raju v. State of A.P., (2021) 6 SCC 732]

Energy, Power and Electricity — Electricity — Generation and Transmission/Supply/Distribution of electricity — Power Projects/Supply Obligations/Contract/Licence for Supply of Power/SEZ/Power Purchase Agreements (PPAs)/Dispute Resolution — Power Purchase Agreement (PPA) — Interpretation of: It is well-settled that interpreting a contract court must consider the underlying purpose and intent of contract and in this case the Commission had committed an error in applying Art. 1.2.1(m) when the provision that is applicable is Art. 1.2.1(k) read with definition of month in Art. 21.1. There is a specific mention of “twelve months” in definition of SCOD and Art. 1.2.1(k) categorically provides that any reference to a “month” shall be a calendar month. [Bangalore Electricity Supply Co. Ltd. v. E.S. Solar Power (P) Ltd., (2021) 6 SCC 718]

Environment Law — Environmental Clearance/NOC/Environment Impact Assessment — Expansion of National Highway — Environmental clearance — When necessary — Interpretation of Notis. dt. 14-9-2006 and 22-8-2013: Segmentation of project as a strategy to avoid environmental clearance is not permissible. Project proponent, held, is obligated to obtain prior environmental clearance only if the additional right of way or land acquisition is greater than 40 m on existing alignments and 60 m on realignments or bypasses for a National Highway project which is greater than 100 km. Though, segmentation as a strategy is not permissible for evading environmental clearance as per Notis. dt. 14-9-2006 and 22-8-2013, question of permissibility of the segmentation of a National Highway beyond a distance of 100 km, held, is a matter to be considered by experts. [NHAI v. Pandarinathan Govindarajulu, (2021) 6 SCC 693]

Himachal Pradesh Goods and Services Tax Act, 2017 (10 of 2017) — S. 83 r/w Ss. 62, 63, 64, 67, 73 and 74 — Provisional attachment: The power to levy a provisional attachment has been entrusted to the Commissioner during the pendency of proceedings under Ss. 62, 63, 64, 67, 73 or as the case may be, S. 74. Further, under S. 83(2), a provisional attachment ceases to have effect upon the expiry of a period of one year of the order being passed under S. 83(1). Also, once a final order is passed under S. 74(9), the proceedings under S. 74 are no longer pending as a result of which the provisional attachment must come to an end. [Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771]

Prevention of Money-Laundering Act, 2002 — Ss. 17(1), 17(1-A) & 17(2) r/w Ss. 2(1)(v) and 2(1)(w): Necessary requirements and prerequisites of Freezing of property or record and freezing of bank account, summarized. [OPTO Circuits (India) Ltd. v. Axis Bank, (2021) 6 SCC 707]

SEBI (Mutual Funds) Regulations, 1996 — Regn. 18(15): Expression “consent of the unitholders” means consent of majority of the unitholders who exercise their right in the poll, as opposed to consent of all the unitholders of the scheme. Reading prescription of a quorum as majority of the unitholders or “consent” as implying “consent by the majority of all unitholders” in Regn. 18(15)(c) will not only lead to an absurdity but also an impossibility given the fact that mutual funds have thousands or lakhs of unitholders. Also, many unitholders due to lack of expertise, commercial understanding, relatively small holding, etc. may not like to participate. The underlying thrust behind Regn. 18(15)(c) is to inform the unitholders of the reason and cause for the winding up of the scheme and to give them an opportunity to accept and give their consent or reject the proposal and not to frustrate and make winding up an impossibility. Consent of the unitholders for the purpose of Regn. 18(15)(c) of the 1996 Mutual Fund Regulations means simple majority of the unitholders present and voting, and not majority of all unitholders. [Franklin Templeton Trustee Services (P) Ltd. v. Amruta Garg, (2021) 6 SCC 736]

Op EdsOP. ED.

A. Introduction: Treatment of personal law by the Colonial Courts

This article analyses the primacy of the Constitution of India vis-à-vis personal laws. To analyse this subject, the article has studied the treatment of personal laws by the courts of law over the years.

In order to develop some context, it would be pertinent to discuss the jurisprudence in relation to judicial review of personal law during the colonial era. It is relevant to note that with respect to personal law, the policy of the colonial courts was to govern the aspects of personal law according to local institutions/law of Hindus.[1] The said policy traces back to Warren Hastings’s Judicial Plan of 1772, which established that either community (Hindus or Muslims) was to be governed by its personal law in matters of inheritance, marriage, religious usage and institutions.[2]

Moving on, two cases from colonial era have been discussed to understand the application of personal law by colonial courts.

In one such case dealt by the Calcutta High Court in 1913, the issue revolved around the inheritance rights of a Shudra[3] ascetic.[4] The plaintiff in this case, who had filed a suit for possession, pleaded that he had purchased the property from a person A, who in turn had purchased it from another person B (who had had renounced all connection with worldly affairs and had become an ascetic).[5] The learned trial court held that since B had renounced the world, he was excluded from inheritance and had no title to the property which he sold. The learned trial court further held that since B had no lawful title to the property, he could not have sold the same to A (who sold it to the plaintiff) and hence dismissed the plaintiff’s suit for possession.[6]

The plaintiff decided to prefer a second appeal and the matter reached the Division Bench of the High Court of Calcutta. The High Court of Calcutta held that the trial court erred in its reasoning, as the principle, under Hindu personal law, of excluding a person from inheritance once he becomes an ascetic does not apply to a Shudra:

[A]ll authorities necessarily and clearly imply that a Sudra cannot enter the order of jati or sanyasi and that, therefore, a Sudra who becomes an ascetic is not excluded from inheritance to his family estate unless some usage is proved to the contrary….We are of opinion that the Hindu texts applicable to the disinheritance of ascetics do not apply to Sudras and, therefore, have no application in this case.[7]

Therefore, the Calcutta High Court held that, as per Hindu texts, a Shudra cannot enter the order of sanyasis, and hence consequently, it cannot be held B had renounced the world. This decision was based on the text of Hindu scriptures (personal law).

Moving on, in the second case[8], the plaintiff filed a suit for recovery of possession of certain properties (one of them being the Pandharinath Temple, situated at Chandansar in  Thane District of Bombay) by virtue of his title as Guru Bandhu (spiritual heir) of one Onkardas.[9] The chain of title had devolved in the following manner: (1) Pandharinath temple was gifted by one Tulsidas in his will to Onkardas (a Shudra);[10] (2) since Onkardas had no son, the property came to the management of his widow after his death, who allegedly disposed of a considerable portion of it;[11] and (3) the plaintiff set up an independent title to those properties on the basis that he was the Guru Bandhu (spiritual heir) of Onkardas, and, therefore, was entitled to succeed to the property.[12]

As per the law of inheritance governing ascetics in the Hindu scriptures, the property belonging to an ascetic devolved upon his spiritual heir. Therefore, if it were proved that Onkardas had become an ascetic prior to his death, the plaintiff would have succeeded in his claim as he was the spiritual heir to Onkardas.

However, noting that Onkardas was a Shudra, the Bombay High Court agreed with the position of law that as per Hindu scriptures, a Shudra could not enter the order of Yathi or Sanyasi; and hence, the devolution of property left by a deceased Shudra ascetic would be regulated by the ordinary law of inheritance, and not by the law of inheritance governing ascetics (unless a custom is proved to the contrary).[13]

Therefore, as far as the colonial courts were concerned, Shudras could not join the order of ascetics since it was an established position of law that citizens would be governed by their respective personal laws. In both the cases discussed above, the ascetics concerned were Shudras by birth and their rights were decided based on their status acquired by birth. By way of background, it is pertinent to note that the Hindu personal law largely prescribed different rules for members of different castes.

The rule of law was different for the three “twice-born varnas”[14] as compared to Shudras.[15] However, since the British had adopted the policy of non-interference in social and religious matters, no efforts were made by them to reform such discriminatory practices. The 1827 Bombay Regulations framed by the British clearly provided that the internal economy of a caste is not to be interfered with by the courts and the jurisdiction of civil courts over such questions was barred.[16] This policy was, with passage of time, extended throughout British India by the Civil Procedure Code in 1859.[17]

B. Constitution of Independent India – Do courts have the authority to judicially review religious scriptures

Did the aforesaid position taken by the colonial courts change after independence? Does the Constitution of independent India give courts the power to review personal law? The answer to this question has a huge bearing on the civil rights of different classes of citizens who may be discriminated under the tenets of personal law.

The issue whether personal law can be reviewed by a court of law cropped up in independent India in 1951 when a suit was filed by a Shudra sanyasi to recover the possession of a math[18] property in the capacity of being a mahant[19] of the said math property.[20]

As per the pleadings in the plaint, a certain Swami Sarupanand had set up a math in Banaras. Accordingly, the building in which the Swami stayed and other buildings and land adjacent thereto became part of the math property. On Swami Sarupanand’s death, Swami Atmavivekanand, the chief disciple of Swami Sarupanand became the mahant and, on the demise of the latter, the plaintiff, who was his chief disciple, became the mahant having been nominated to be the successor by Swami Atmavivekanand himself.[21]

The said position was vehemently opposed by Swami Atmavivekanand’s son as he claimed that the property in question was the private property of Swami Atmavivekanand, and not math property. In addition to the said defence, it was contended by the defendants that the plaintiff was a Shudra and hence, not entitled to become a sanyasi (which is a prerequisite to become mahant of a math).[22]

The matter reached the Allahabad High Court on appeal. It was held by the Allahabad High Court that the strict rule enjoined under the Hindu scriptures, as a result of which Shudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid after independence because of the fundamental rights guaranteed under Part III of the Constitution[23] (for example right to equality and right to not be discriminated based on birth).[24]

It was a revolutionary finding that marked a clear departure from the theory of non-interference followed during the colonial times with respect to matters governed by personal law. It was specifically held by the Allahabad High Court that any discrimination by virtue of birth in a particular caste stood abolished in light of enactment of the chapter on fundamental rights under Part III of the Indian Constitution.[25]

However, the aforesaid finding was overruled by a two-Judge Bench of the Supreme Court by stating that Part III of the Constitution does not govern aspects of personal law and the Allahabad High Court ought to have “enforced the law as derived from recognised and authoritative sources of Hindu law i.e. Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or abrogated by statute”.[26] However, in the peculiar facts of the case, the Supreme Court held that the plaintiff was entitled to become an ascetic/sanyasi according to the usage or custom of the particular sect or fraternity.[27]

A more detailed reasoning on this legal proposition whether personal law needs to adhere with the chapter on fundamental rights (Part III) was given by the Bombay High Court in State of Bombay v. Narasu Appa Mali[28].

Before the reasoning given in Narasu Appa Mali[29] is analysed, it must be noted that under the Constitution of independent India, only those laws can be struck down as being violative of the chapter on fundamental rights, which are covered within the definition of “laws” given in Article 13 of the Indian Constitution. Therefore, it would be helpful to first go through the bare text of Article 13:

13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b)“laws in force” includes laws passed or made by legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.[30]

(emphasis added)

Moving on, in Narasu Appa Mali[31], the Division Bench of the Bombay High Court held that personal laws are not susceptible to the Chapter on Fundamental Rights (Part III) for the following reasons:

I. Narasu Appa case – Chagla, J.’s reasoning

  1. Personal laws do not fall within the definition of “law” as defined in Article 13(3)(a)[32]. The contention that a personal law falls within the scope of a“custom or usage” is erroneous as a “custom or usage” is a deviation from personal law and not personal law itself. Hindu scriptures form the personal law and customs are deviations recognised from such scriptures.[33]
  2. In the definition of law in Article 13 – the expression “custom or usage” has been used while the term “personal law has been deliberately omitted.[34]
  3. If Hindu personal law became void by reason of Article 13, then it was unnecessary specifically to provide in Articles 17[35] and 25(2)(b)[36] for certain aspects of Hindu personal law which contravened Articles 14[37] and 15[38]. This clearly shows that only in certain respects has the Constitution dealt with personal law.[39] (Chagla, J. defined untouchability as an aspect of personal law whereas Gajendragadkar, J. defined untouchability as an aspect of custom.)
  4. Constitution drafters recognised and were aware about existence of separate personal laws but still chose to leave it unaffected and left the job to legislature to modify the personal law with time and to ultimately achieve the ideal of a common uniform civil code.[40]

II. Narasu Appa case – Gajendragadkar, J.’s reasoning

  1. Personal laws are not “laws in force” under Articles 13 of the Constitution as only statutory laws are covered within the scope of “laws in force”. Though personal laws are in force in a general sense; the expression ‘laws in force’ is not used in general sense and is intended to apply to statutory law only.[41]
  2. Secondly, the definition of “laws” [given in Article 13(3)(a)] does not apply to “laws in force”[given in Article 13(3)(b)]. The definition of “laws” will apply to prospective laws whereas the definition of “laws in force” will apply to existing laws. Personal laws, being existing laws, will be covered by the definition of “laws in force” only which does not include “customs” or “usages” within its scope.[42] (Chagla, J. gave a contrary opinion on this point and accepted that the definition of “laws” will apply to “laws in force” as well.)
  3. If “laws in force” included customs and usages, then it was unnecessary specifically to provide in Article 17 that untouchability is abolished, since untouchability is a social custom which would have stood automatically abrogated if “laws in force” includes customs.[43]
  4. Irrespective of the aforesaid reasoning, personal laws cannot be categorised as “customs” or “usages” as customs are only permitted departures from the general rules of Hindu law, and not personal law themselves. Therefore, both the Hindu and the Mohammadan Laws are not “laws in force” within the meaning of Article 13.[44]

The next section discusses the aforesaid reasoning based on debates in the Constituent Assembly and Drafting Committee during the drafting of the Constitution of India. It is a settled position of law that parliamentary material or Constituent Assembly Debates can be looked at for the purpose of ascertaining what was the object which the Constitution-makers had in view and what was the purpose which they intended to achieve.[45]

III. Drafting history of Article 13: Scope of “laws in force” and “laws”

It must be noted that the Constituent Assembly had begun its task of framing the Constitution of India in December 1946. After the first session of the Constituent Assembly, several committees were formed to prepare reports on various aspects of the Constitution. One of the said committees was the Advisory Committee on Fundamental Rights and Minority Rights. The said Committee was further divided into the Sub-Committee on Fundamental Rights and the Sub-Committee on Minority Rights.

The first step in the genesis of the chapter on fundamental rights was the draft produced by the Sub-Committee on Fundamental Rights. Three members of the said sub-committee, Dr B.R. Ambedkar, Mr K.M. Munshi, and Mr Harnam Singh, had provided their respective drafts of bill of rights for consideration by the sub-committee.[46]The sub-committee decided to use Mr K.M. Munshi’s draft as the base draft and examine it in conjunction with other drafts.[47]It will be worthwhile to first reproduce the original Clause 4 of Article 1 (which finally took the form of present-day Article 13) from the draft prepared by Mr K.M. Munshi:

  1. All the existing law or usage in force within the territories of the Union inconsistent with the fundamental rights and duties shall stand abrogated to the extent of such inconsistency, nor shall any such right or duty be taken away, abridged or modified save as provided in this chapter by legislative action of the Union or a State or otherwise.[48]

In a subsequent discussion, the phrase “modified save as provided in this chapter by legislative action of the Union or a State or otherwise” was deleted. On 29-3-1947, the clause was further revised, and the term “law” was used twice i.e. once for the existing laws and once for prospective laws:

  1. All existing laws or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.[49]

(emphasis added)

It is imperative to note that the term “law” was used in the same sense, without any distinction as to their respective scopes, both for prospective law as well as existing law. This version was accepted as Clause 2 in the final draft which was submitted to the Advisory Committee by the Sub-Committee on Fundamental Rights.[50]

As is evident, the term “custom” was not yet part of this clause. It is necessary to analyse how this term came to be incorporated in Clause 2. In his draft on fundamental rights, Dr Ambedkar had a similar clause on abrogation of existing law in conflict with fundamental laws:

3. All citizens are equal before the law and possess equal civic rights. Any existing enactment, regulation, judgment, order, custom or interpretation of the law by which any penalty, disadvantage or disability is imposed upon or any discrimination is made against any citizen shall, as from the day on which this Constitution comes into operation, cease to have any effect.[51]

(emphasis added)

The said clause was considered by the Sub-Committee on Fundamental Rights and was added to the base draft of Mr K.M. Munshi in the draft report of the Sub-Committee on Fundamental Rights (as submitted to the Advisory Committee).[52] This clause was renumbered as Clause 6 and adopted with minor modifications in the final draft which was submitted to the Advisory Committee.[53]

When the Advisory Committee deliberated on the draft submitted by the Sub-Committee on Fundamental Rights, many objections were raised with respect to the language of Clauses 4, 5 and 6. In light of the said objections, a sub-committee was formed with the objective of redrafting these clauses and submitting them to the main committee.[54] Unfortunately, the deliberations of the said sub-committee are not available in public domain.

The said sub-committee redrafted these clauses and presented them to the Advisory Committee. In the said redrafting process, the original language of Clause 6 was lost. Eventually, it was decided by the Advisory Committee to delete Clause 6.[55]?? However, while doing so, it was decided to add the terms “regulations” and “customs” in Clause 2 (presumably from original clause 6).[56] The revised Clause 2 was adopted in the following manner by the Advisory Committee in its interim report:

  1. All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.[57]

                                                                                                                  (emphasis added)

The addition of these terms in the first sentence seems to be have been done from the original Clause 6 (which was subsequently deleted). The said clause, drafted by Dr Ambedkar, was drafted in a broad manner indicating that all kinds of laws in force in India are intended to be abrogated if they conflict with fundamental rights. When it was decided to delete the said clause, the broad nature of the said clause was decided to be retained by importing the terms ‘regulations’ and ‘customs’ into Clause 2.

However, at the same time, the addition of the aforesaid terms in the first sentence cannot be construed to mean that the scope of the term “law”, as used in the last sentence with respect to prospective law, changed. This becomes evident from the next amendment in the aforesaid clause which was done when the draft prepared by the Advisory Committee reached the Constituent Assembly. An amendment was moved by Mr K. Santhanam in the Constituent Assembly to the following effect:

I move that in Clause 2 for the words “nor shall the Union or any unit make any law taking away or abridging any such right”, the following be substituted:

“Nor shall any such right be taken away or abridged except by an amendment of the Constitution.”

The only reason is that if the clause stands as it is then even by an amendment of the Constitution, we shall not be able to change any of these rights if found unsatisfactory or inconvenient.[58]

The aforesaid amendment was accepted by the Constituent Assembly.[59] As a result of the said amendment, the phrase “nor shall the Union or any unit make any law taking away any such right” became “nor shall any such right be taken away” and the term “law” was deleted from the last sentence of the clause. Thus, the definition of “law” as defined in the first sentence was left to govern both existing as well as prospective law. This is another indication of the fact that scope of existing and prospective law was always intended to be identical in Article 13.

The draft adopted by the Advisory Committee was then forwarded to the Constitutional Adviser, Mr B.N. Rau, who was given the task of drafting the constitutional text based on the principles accepted by the Advisory Committee. It is imperative to note one interesting point about the draft prepared by Mr B.N. Rau. In the said draft, a note was put by him specifying that the provisions that had not yet been adopted by the Constituent Assembly were italicised, whereas mere drafting changes to make the clauses more definite or to supplement them were not italicised.[60]

Now, it must be noted that the draft of Article 9 (which eventually became the current day Article 13) was not italicised.[61] This makes it evident that he had stuck to the principles already accepted by the Advisory Committee and had only done some drafting changes to make the provision more definite. Article 9, as drafted by Mr B.N. Rau, is reproduced below:

  1. (1) All laws in force immediately before the commencement of this Constitution in the territories included within the Federation, in so far as they are inconsistent with any of the provisions of Chapter II of this Part, shall, to the extent of such inconsistency, be void.

(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.

(3) In this section, the expression “law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territories of the Federation.[62]                                                                                                                                                                                                                                                     (emphasis added)

It has already been established that in all the earlier drafts, the term “law” was used in the same sense and without any distinction for both prospective law as well as existing law. Therefore, in the draft prepared by Mr B.N. Rau also, the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2) clearly had the same meaning and scope as his draft was a mere redrafting without introduction of any new principle or concept in this clause (since this clause was not italicised in his draft signifying that he had merely redrafted the clause without changing any broad principles agreed upon by the Advisory Committee).

The aforesaid clause drafted by Mr B.N. Rau in the Draft Constitution became the current day Article 13 with some minor modifications.

Lastly, if at all any doubt remained with respect to the definition of “law” applying to both prospective as well as existing law, the said doubt was cleared by Dr Ambedkar during the Constituent Assembly Debates. Dr Ambedkar, as the Chairman of Drafting Committee, specifically clarified that the definition of law applied to the whole of Article 8 (which eventually became present day Article 13). This should lay to rest any doubt with respect to whether the term “custom” is included within the definition of “laws in force”:

… [s]ub-clause (3) of Article 8 applies to the whole of Article 8, and does not merely apply to sub-clause (2) of Article 8. That being so, the only proper construction that one can put or its possible to put would be to read the word “law” distributively, so that so far as Article 8, sub-clause (1) was concerned, law would include custom, while so far as sub-clause (2) was concerned, “law” would not include custom. That would be, in my judgment, the proper reading….[63]

The aforesaid clarification with respect to custom not applying to sub-clause (2) was given by him in the context that State cannot possibly make custom and hence the term “custom” should not be read in the definition of “laws” which are enacted by State. However, he clarified it in no uncertain terms that the definition of “law” would otherwise apply equally to both existing and prospective laws.

In conclusion, the following points emerge from the aforesaid analysis:

  • The terms “notifications, regulations, and customs” were added to the term “existing laws” in the first sentence to clarify that the term “law” is used in a broad sense.
  • The aforesaid broad definition of “law” was intended to apply equally to both existing as well as prospective law.
  • Therefore, the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2) of Article 13 clearly have the same meaning and scope.
  • Most importantly, the term “customs” was added to the term “existing laws” making it evident that existing customs were also intended to be abrogated if they conflict with existing law.

In light of the aforesaid analysis, the next section discusses the judgment of Narasu Appa[64].

IV. Analysis of the reasoning given by Gajendragadkar, J.

 a. Reasoning 1: The definition of “laws” [given in Article 13(3)(a)] does not apply to “laws in force” [given in Article 13(3)(b)].

In the aforesaid analysis of the drafting history of Article 13, it has been established that the definition of “law” was always intended to apply equally to both existing as well as prospective law. Therefore, the term “laws in force” used in “sub-clause (1)” and “law” used in “sub-clause (2)” clearly have the same meaning and scope. Accordingly, the definition of “laws” which includes customs and usages will apply with equal force to the definition of “laws in force”.[65]

b. Reasoning 2: Since the definition of “laws” does not apply to “laws in force”, the term “customs” is not covered in the definition of “laws in force”

To further substantiate this point, Gajendragadkar, J.  gave the example of the inclusion of Article 17 (abolishing untouchability) as a separate article in the Constitution.

Firstly, he observed that untouchability owed its origin to custom and usage.[66] Secondly, it was observed that since untouchability was a discrimination “based on birth”, it clearly offended the provisions of Article 15(1).[67] Based on the aforesaid two assertions, Gajendragadkar, J. opined that if customs were included within the scope of “laws in force” in Article 13, the practice of untouchability would have been deemed to be a “law in force” and it would have become void under Article 13(1) for being in conflict with a fundamental right (i.e. Article 15 which prohibited any discrimination based on birth).[68] It was observed that the fact that Article 17 was enacted separately to illegalise untouchability is a clear indication that customs were not included with the definition of “laws in force”.[69]

The aforesaid reasoning has been analysed below.

To begin with, as discussed above, the term “customs” was specifically added after the term “existing law” in the interim draft report of the Advisory Committee.[70] The specific addition of the term “customs” after “existing laws” by the Advisory Committee leaves no scope for any other interpretation apart from the fact that “customs” were supposed to be covered within the scope of existing laws. The aforesaid addition was not objected in principle in any subsequent discussions and only drafting changes were made to this clause as far as the definition of “law” is concerned (without any intention to change the broad nature of the scope of existing laws).

Secondly, based on the drafting history of Article 13, it has been established that the definition of “law” was always intended to apply equally to both existing as well as prospective law.[71] Therefore, even if the clause adopted by the Advisory Committee is disregarded and only the final adopted clause is considered, it is evident that the term “laws in force” used in sub-clause (1) and “law” used in sub-clause (2), were intended to have the same meaning and scope. Consequently, since the term “customs” is covered in the definition of “law”, it must also be deemed to be covered in the definition of “laws in force” (existing laws).

Thirdly, it is essential to discuss the example of untouchability given by Gajendragadkar, J. to establish that customs are not covered within the scope of “laws in force”. The original clause on “abolition of untouchability” did not contain any definition of untouchability.[72] Subsequently, in the draft accepted by the Sub-Committee on Fundamental Rights as well as Advisory Committee, a small modification was done to this clause and untouchability was used in inverted commas[73] in the accepted draft.[74]

Thereafter, this clause was debated in the Constituent Assembly and an amendment was moved by Srijut Rohini Kumar Chaudhury to provide for the following definition of untouchability: “Untouchability means any act committed in exercise of discrimination on grounds of religion, caste or lawful vocation of life mentioned in Clause 4.”[75] It will be useful to note that Clause 4, which was mentioned in the aforesaid proposed amendment, was the “no discrimination” clause which provided that no person shall be discriminated on the grounds of religion, race, caste, language or sex. This Clause 4 eventually took the shape of present-day Article 15 in the Constitution of India. The response given to the proposed amendment is extremely crucial. The following response was given by Mr K.M. Munshi to the aforesaid proposed amendment:

Mr K. Munshi: [C]lause 4 does not deal with untouchability at all. It deals with discrimination regarding services and various other things. It may mean discrimination even between touchables and untouchables, between people of one province and another. The word “untouchability” is mentioned in Clause 6. The word “untouchability” is put purposely within inverted commas in order to indicate that the Union legislature when it defines ‘untouchability’ will be able to deal with it in the sense in which it is normally understood.[76]

Before the impact of the aforesaid statement is discussed, it is important to remember that Mr K.M. Munshi is the same person who had introduced the clause on “abolition of untouchability” as a separate clause in his draft of fundamental rights (the same draft which was used as the base draft by the Sub-Committee on Fundamental Rights)[77]. Now, it is a settled position of law that speeches made by the mover of the Bill or Minister may be referred to for the purpose of finding out the object and purpose for which the legislation is enacted.[78] Therefore, the response/clarification given by Mr Munshi assumes a greater significance since he was the one who moved/introduced the clause on untouchability in the draft chapter on fundamental rights.

Based on the statement made by Mr Munshi, as captured above, it is evident that he introduced a separate clause on untouchability because he was of the opinion that Clause 4 did not cover within its scope the practice of untouchability since Clause 4 was only concerned with specific kinds of discrimination regarding services and a few other things. Thus, the following points emerge from the aforesaid response given by Mr K.M. Munshi:

  • The idea behind introducing a separate clause on abolition of untouchability was based on the understanding that the “no discrimination” clause (present day Article 15) did not deal with the practice of untouchability as it dealt with a separate subject-matter altogether.
  • The aforesaid reasoning goes against the reasoning given by Gajendragadkar, J. as the original inclusion of untouchability as a separate clause was not based on the premise that there is a need to introduce a separate clause on untouchability since “customs” are not included within the scope of existing laws/laws in force. In fact, the said clause was inserted because the draftsman viewed the scope of clause on untouchability (Article 17) as different from the scope of clause on “no discrimination” (Article 15).
  • Though it seems to be an erroneous understanding that untouchability is not covered within the scope of Article 15 (as untouchability is nothing but a discrimination based on birth or caste), nevertheless it leads to a clear conclusion that while introducing a separate clause on untouchability, there was no such understanding that ‘customs” are not included with the term “existing laws/laws in force”. There was a completely different consideration for introducing a separate clause on untouchability and hence, the presence of Article 17 in the Constitution of India cannot be used as an indication for the proposition that the term “customs” is not included within the scope of “laws in force” in Article 13.

Lastly, it must not be lost sight of that certain provisions were inserted in the Constitution as a matter of abundant caution.[79]The inclusion of untouchability as a separate clause must also be understood to be an insertion based on abundant caution considering the social importance of this issue. This aspect was also noted during the Constituent Assembly Debates that a clear message needs to be sent to the society against this vile practice.[80]

c. Reasoning 3: Even if “customs” is covered within the scope of “laws in force”, there is a clear distinction between “customs” and “personal law”, and “personal law” is not covered within the scope of “customs”

The aforesaid reasoning has been analysed below.

Till now, it has been established that “customs” are included within the definition of “laws in force” in Article 13. Next, it is necessary to compare ‘customs” with “personal law’.

Firstly, it needs to be noted that customs are not merely departures from personal law but are one of the sources of personal law. The following verse from Manusmriti, one of the Holy scriptures of Hinduism, leaves no scope for any other interpretation:

“The whole Veda is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction.[81]

(emphasis added)

According to this division, custom holds third place in the category of sources of law, after Vedas and Smritis. Therefore, excluding personal law from the purview of fundamental rights (but retaining customs at the same time) would mean excluding two sources of personal law from the purview of Part III but retaining the third source of personal law within the purview of Part III. It does not appear to be a logical conclusion.

Secondly, what could be the possible reason for leaving out personal law from the purview of Chapter III? The answer can only be the need to not hurt religious sentiments of the people. There has always been a strong social resistance to any proposed change in relation to religious practices. However, if the intention was to exclude personal laws, then the drafters would have also excluded customs from the purview of Part III for the simple reason that religious customs have an equivalent religious force. Abolition of a religious custom is likely to face the same resistance from the religious community as abolition of any personal law. Historically, Hindus have been governed by Hindu scriptures and customs in an equal measure.

The case of temple entry restrictions, one of the most sensitive issues with respect to Hindu religious practices, may be discussed to highlight the aforesaid point. In Anandrav Bhikaji Phadke v. Shankar Daji Charya[82], an exclusive right of worship in the temple was set up by the Chitpavan Brahmins against other communities on the basis of an established custom (though the said claim had no basis in the Hindu scriptures). The following observation of the Bombay High Court clearly establishes that the exclusive right of worship was based on an established custom:

  1. … Now the rights connected with the religious foundation, in the absence of any code of rules laid down by the founder or the sovereign power, have to be sought in the practice of the institution. What has long been done is presumed to have been rightly done. The evidence on that subject has led the Assistant Judge to the conclusion that the right of exclusive worship set up, as against the defendants, by the plaintiffs has been proved, and that the contradictory right set up by the defendants has not.[83]

                                                                                                                  (emphasis added)

Now, if Chitpavan Brahmins would have been informed that they could not enforce their customary right of exclusive worship in the temple concerned because it violates fundamental rights of other citizens, it would have surely created an uproar because religious customs are considered equally sacred by religious communities as any other source of personal law. Further, it should be kept in mind that under colonial rule, customs were given due weightage vis-à-vis written scriptures. While as per Manusmriti, customs rank below Vedas and Smritis as a source of law and in a situation of conflict between them, the Vedas and Smritis are supposed to prevail; in colonial courts, a different principle was followed. Marc Galanter points out in his article “Law and Caste in Modern India” that in colonial courts, clear proof of usage outweighed the written text of the law.[84] However, this doctrine must not be understood to mean that customs were a departure from personal law. Customs were only a departure from written texts – not personal law itself.

Though it was extremely difficult to establish clear proof of usage, it cannot be disputed that customs applied with equal (if not greater) force as written texts in India. Therefore, there cannot be any dispute that religious customs had deep binding value on Hindus.

In light of the aforesaid discussion, it can be safely concluded that if personal law was not intended to be covered within the purview of Part III in order to not hurt religious sentiments, the constitution drafters would have surely kept customs also outside the purview of Part III.

d. Reasoning 4: In the definition of “law” in Article 13 – the expression “custom or usage” has been used while “personal law” has been deliberately omitted

The Government of India Act, 1915, in which a clear distinction was recognised between personal law and customs, was referred to in order to substantiate this point.[85]It was observed that the same Government of India Act was used as a model by the Constituent Assembly. However, the drafters chose to use the term “customs” but did not include “personal law” in the draft, which according to Gajendragadkar, J. (as well as  Chagla, J.), is a clear pointer to the intention of the Constitution-making body to exclude personal law from the purview of Article 13.[86]

The aforesaid reasoning has been analysed below.

Firstly, as noted by Chagla, J. as well, the definition of “law” in Article 13 is an inclusive definition. It is a settled principle of statutory interpretation that where a definition starts with the word “includes”, the definition is prima facie extensive.[87] Therefore, the broad nature of the definition of “laws” is evident from usage of the word “includes”. The broad nature of “laws”, evident from the drafting history of Article 13, has already been discussed above in the previous section of this article. The prima facie import of the definition of “law”, therefore, seems to be to include every legal principle which has force/is considered binding by the society. The same proposition is accepted by Gajendragadkar, J. as well when he states that there can be no doubt that the personal laws are in force in a general sense.

However, both  the Judges refused to accept that personal law falls within the definition of “law” on the basis of their conclusion that the term personal law has been deliberately omitted from the definition of law after comparing this definition with Section 112 of the Government of India Act, 1915[88] (which included both “custom” and “personal law”). It appears that the Bombay High Court applied the principle of interpretation of expressio unius est exclusio alterius (what is expressly provided for by the Constitution must necessarily exclude what is not so provided for).

This principle has been held by courts to have an extremely limited application. As far back as in the 19th century itself, this principle was described as a “useful servant but a dangerous master to follow in the construction of statutes” by Lopes L.J. in Colquhoun v. Brooks[89]. It was further held in the same case that the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.[90] This case has been cited with approval by Supreme Court in many cases.[91]

This article has earlier discussed how excluding personal law from the purview of Part III (but retaining customs at the same time) would mean excluding two sources of personal law from the purview of Part III but retaining the third source of personal law within the purview of Part III, which does not seem to be a logical conclusion and will create absurd inconsistencies. Therefore, the aforesaid principle of interpretation must not be applied to exclude personal law from the purview of Article 13.

 V. Analysis of the reasoning given by Chagla, J.

Just like Gajendragadkar, J.  Chagla, J. also stated that a custom or usage is a deviation from personal law and not personal law itself.[92] Accordingly, he held that only customs are covered within the scope of Part III, and not personal law.[93] This reasoning has already been discussed above and hence, there is no need to discuss it again.

The main difference in the reasoning of Chagla, J. and  Gajendragadkar, J. is that  Chagla, J. as opposed to Gajendragadkar, J. had held that the term “customs” is included within the scope of “laws in force” in Article 13.[94] Accordingly, he accepts the position of law that if there is any custom or usage in force in India, which is inconsistent with the fundamental rights, that custom or usage is void. To that extent, this article has also reached the same conclusion.

The next section discusses the reasoning of Chagla, J. which is different from that of Gajendragadkar, J.

a. Reasoning: The Constitution has dealt with personal law only in certain respects and except for those specific provisions, personal law is not covered within the purview of Part III

 Chagla, J. also gave the example of untouchability to buttress his view that personal law is not covered within the definition of “law in Article 13. However, there is a difference in the way  Chagla, J. dealt with the example of untouchability, as compared to  Gajendragadkar, J.

As discussed already,  Gajendragadkar, J. had recognised and classified untouchability as a custom in order to support his view that the term “customs” is not covered within the definition of “laws in force” in Article 13. He had done that because he was of the view that neither customs nor personal law is covered within the definition of “laws in force” in Article 13.

J Chagla, J. on the other hand, had held that the term “customs” is included within the scope of “laws in force” in Article 13.[95] However, he did not accept the proposition that personal law is covered within the scope of Article 13. To support his view, he classified untouchability as part of Hindu personal law (and not as a custom) to opine that only in certain respects, the Constitution has dealt with personal law and except for those specific provisions, personal law is not covered within the purview of Part III:

  1. … Article 17 abolishes untouchability and forbids its practice in any form…. Now, if Hindu personal law became void by reason of Art. 13 and by reason of any of its provisions contravening any fundamental right, then it was unnecessary specifically to provide in Article 17 …. for certain aspects of Hindu personal law which contravened Articles 14 and 15. This clearly shows that only in certain respects has the Constitution dealt with personal law.[96]

Even if the definition of personal law is accepted to be distinct from custom, as understood by Chagla, J. it is evident from the drafting history of the Constitution that untouchability was not intended to be abolished as a part of Hindu personal law and it was, in fact, abolished as a custom or a social practice which was not confined to/emanating from Hindu personal law. Therefore, the clause on untouchability cannot be used as an example for the proposition that the Constitution drafters have selectively dealt with personal law, wherever considered necessary.

To substantiate the aforesaid point, the broad phraseology used in this clause may be looked at. In the report submitted to the Advisory Committee, the phrase used by the Sub-Committee on Fundamental Rights was “untouchability in any form”.[97] In the deliberation meetings of the Advisory Committee, questions were raised with respect to the vagueness of this phrase and it was even suggested that this clause should clarify that untouchability is abolished with respect to Hindus as the said practice was confined to Hindus.[98] However, such suggestions were met with huge criticism and it was reminded to the House that untouchability is not confined to Hindus only and there are many depressed classes who have to deal with the disability of untouchability despite having converted to Christianity.[99] It was opined by Dr Sardar Patel, Chairman of the Sub-Committee on Fundamental Rights, that the intention is to abolish untouchability in all forms as per his understanding.[100] In light of the aforesaid discussions, no restriction was placed on the broad nature of this clause.[101]

This clearly shows that untouchability was not intended to be abolished as a part of Hindu personal law (as understood by Chagla, J.) since, for example, the stigma of untouchability faced by depressed classes which converted to Christianity was not prescribed by Hindu scriptures and was a clear result of customary practices in the society.

Therefore, there cannot be any doubt that untouchability was abolished as a customary practice, and not as a part of personal law. Accordingly, the presence of Article 17 in the Constitution of India cannot be used to support the proposition that personal law is not included within the scope of “laws in force” in Article 13 on the premise that the Constitution has dealt with personal law only in certain respects and except for those specific provisions, personal law is not covered within the purview of Part III.

 VI. Recent trends with respect to inclusion of personal law within the scope of Article 13

 The correctness of the view taken in Narasu Appa Mali[102] has been doubted by the Supreme Court twice in recent times. Firstly, Nariman, J. doubted the correctness of Narasu Appa Mali[103] by way of the following observation in the triple talaq judgment[104]:

  1. … However, in a suitable case, it may be necessary to have a re-look at this judgment in that the definition of “law and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law.[105]

Similarly, Chandrachud, J. has also strongly criticised the view taken in Narasu Appa Mali[106] by way of the following observation in the Sabarimala Temple entry judgment[107]:

  1. The decision in Narasu[108], in restricting the definition of the term “laws in force” detracts from the transformative vision of the Constitution. Carving out “custom or usage” from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu[109], is based on flawed premises. Custom or usage cannot be excluded from “laws in force”. The decision in Narasu[110] also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed to the term “laws in force” having regard to its inclusive definition and constitutional history.[111]

However, in both the aforesaid cases, the legality of a personal law was not strictly in question and hence, this issue could not be decided in these cases.

Conclusion

In conclusion, based on the aforesaid discussion, it is submitted that personal law is indeed covered within the scope of Part III of Constitution and accordingly, any discriminatory practices under the personal laws ought to be reviewed under Part III.

The scrutiny of personal law on the anvil of rights guaranteed under Part III will also help fulfil the lifelong dream of Dr Ambedkar who wished for a society based on “liberty, equality and fraternity”.[112] In order to attain the said goal and destroy caste-based discrimination, Dr Ambedkar was of the strong opinion that the belief in the sanctity of scriptures was needed to be destroyed.[113] Therefore, scrutiny of personal law under Part III will help in delegitimising those parts of scriptures which are inherently discriminatory and hence will help in fulfilling the vision of Dr Ambedkar.

We must not forget that the nation owes a great debt to the Constituent Assembly for giving us the notion of equality and dignity. We have seen in this article that colonial courts were not concerned with these notions and were merely focused on maintaining status quo. The colonial courts were completely oblivious to the human rights of an individual. However, in independent India, the courts are duty-bound to ensure human rights of the individual. Therefore, any set of principles which have authoritative force over the citizens must be subject to judicial review. Citizens must not be denied important rights in independent India, for example the right to practice a profession of their choice (for instance, the right to become a priest), just because the personal laws prohibit such a choice.

It must not be forgotten that the individual is at the centre of Indian Constitution and individual dignity is considered paramount under the principles of Indian Constitution. Therefore, individual dignity, snatched away by a personal law, cannot be argued to be outside the subject of judicial review on the ground of religious sentiments of the society. The Preamble to our Constitution mentions “dignity” in the following manner:

“Fraternity assuring the dignity of the individual and the unity and integrity of the nation.”[114]

It is imperative to note that the Preamble assures the dignity of a person before ensuring the unity of the nation, thereby establishing a romantic ideal that dignity must trump over every other goal of the society. This is a beautiful idea because for any nation or a democratic society, nothing should trump the ideal of ensuring the inherent worth/dignity of its people. The same thought was echoed by Dr Ambedkar as well in his speech in the Constituent Assembly in November 1948:

“I am glad that the draft Constitution has…adopted the individual as its unit.”[115]


*Metropolitan Magistrate/Civil Judge, Delhi Judicial Services. BA LLB (Hons.), National Law University, Delhi.  Author can be reached at devanshu.sajlan26@gmail.com

[1] Ludo Rocher, Studies in Hindu Law and Dharmaśāstra (Anthem Press 2012) 633; Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 173.

[2]Ludo Rocher, Studies in Hindu Law and Dharmaśāstra (Anthem Press 2012) 633; Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 173. See also, Sarla Mudgal v. Union of India, (1995) 3 SCC 635, 650.

[3]In the ancient Hindu society, Shudras belonged to the lowest rung of the social order (varna system) and were meant to serve the rest of the upper class population. For a discussion on the ancient varna system, see Brian K. Smith, Classifying the Universe: The Ancient Indian Varna System and The Origins of Caste (Oxford University Press 1994) 46-47. For an understanding of social order created by Hindu scriptures, see e.g. George Bühler, The Laws of Manu (Vol. 25 of The Sacred Books of the East) (Oxford: Clarendon Press 1886) 192 [“(The pursuit of sacred) knowledge is the austerity of a Brahmana, protecting (the people) is the austerity of a Kshatriya, (the pursuit of) his daily business is the austerity of a Vaisya, and service the austerity of a Sudra.”]

[4]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[5]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[6]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[7]Harish Chandra Roy v. Sk. Atir Mahmud, 1913 SCC OnLine Cal 30.

[8]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi,1922 SCC OnLine Bom 114.

[9]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 1.

[10]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 7.

[11]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 7.

[12]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, para 8.

[13]Narasinhdas Guru Sitaram Das v. Khanderao Vinayak Joshi, 1922 SCC OnLine Bom 114, paras 9-10.

[14] For the meaning of twice-born varnas, see Patrick Olivelle and Donald Richard Davis, Hindu Law: A New History of Dharmaśāstra (Oxford History of Hinduism)(OUP 2018) 9. The first three varnas are called dvija or twice-born as only they are entitled to don the sacred thread at the ceremony of upanayana (janeu ceremony) which is interpreted as a second birth. This ceremony marks a Hindu male child’s entrance into the life of a student and his acceptance as a full member of his religious community.

[15]Marc Galanter, Law and Caste in Modern India, (1963) 3 (11) Asian Survey 544, 545.

[16]Marc Galanter, Law and Caste in Modern India, (1963) 3 (11) Asian Survey 544, 545. See also Anandrav Bhikaji v. Shankar Daji, (1883) ILR 7 Bom 323, 328-329.

[17]Marc Galanter, Law and Caste in Modern India (1963) 3 (11) Asian Survey 546.

[18]“Math” is a Sanskrit word which signifies a Hindu monastery set up by ascetics to study and teach religion.

[19]“Mahant” is the religious head/chief priest of a particular temple.

[20]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231.

[21]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, para 2.

[22]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, para 7.

[23]http://www.scconline.com/DocumentLink/Uei3bEDC.

[24]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, 166-167.

[25]Sri Krishna Singh v. Mathura Ahir, 1971 SCC OnLine All 231, 166-167.

[26]Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689, 699.

[27]Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689, 717.

[28]1951 SCC OnLine Bom 72.

[29]1951 SCC OnLine Bom 72.

[30] Constitution of India, Art. 13.

[31]1951 SCC OnLine Bom 72.

[32] It is important to note that only those laws can be struck down as being violative of Part III which are covered within the definition of “laws” given in Art.13 of the Indian Constitution.

[33]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[34]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[35]http://www.scconline.com/DocumentLink/GMP63muX.

[36]http://www.scconline.com/DocumentLink/k4viekQA.

[37]http://www.scconline.com/DocumentLink/h7G5KbD4.

[38]http://www.scconline.com/DocumentLink/9etOajU7.

[39]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[40]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 16.

[41]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 23.

[42]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[43]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[44]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[45] See e.g. State of Mysore v. R.V. Bidap, (1974) 3 SCC 337; Fagu Shaw v. State of W.B., (1974) 4 SCC 152; S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126.

[46]For a complete version of all the three drafts, see B.S. Rao et al., The Framing of India’s Constitution: A Study Select Documents, Vol. 2 (1st Edn., Indian Institute of Public Administration 1967) 69-114.

[47]B.S. Rao, Vol. 2, 116.

[48] B.S. Rao, Vol. 2, 73.

[49] B.S. Rao, Vol. 2, 33.

[50]B.S. Rao, Vol. 2, 171.

[51] B.S. Rao, Vol. 2, 86.

[52]B.S. Rao, Vol. 2, 132, 138.

[53] B.S. Rao, Vol. 2, 172.

[54] B.S. Rao, Vol. 2, 223, 226.

[55] B.S. Rao, Vol. 2, 290.

[56] B.S. Rao, Vol. 2, 290.

[57] B.S. Rao, Vol. 2, 296.

[58]Constituent Assembly of India Debates, Vol. III http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html (https://perma.cc/CJ7H-ZV49)(CAD).

[59]Constituent Assembly of India Debates, Vol. III http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html (https://perma.cc/CJ7H-ZV49)(CAD).

[60]B.S. Rao, The Framing of India’s Constitution: Select Documents, Vol. 3 (The Indian Institute of Public Administration, 1967), (n 39) Vol. 3, 4.

[61] B.S. Rao (n 39) Vol. 3, 7.

[62] B.S. Rao (n 39) Vol. 3, 7.

[63] CAD, Vol. VII <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29111948.html>(https://perma.cc/FT6N-P7BU).

[64]1951 SCC OnLine Bom 72.

[65] On the discussion of the scope of “laws” and “laws in force”, see the section with the heading “Drafting history of Article 13: Scope of “Laws in Force” and “Laws”.

[66]State of Bombay v.Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[67]State of Bombay v.Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[68]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[69]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 26.

[70]B.S. Rao (n 39) 290.

[71] On the discussion of the scope of “laws”, see the section with the heading “Drafting History of Article 13: Scope of “Laws in Force” and “Laws”.

[72]B.S. Rao (n 39) 74.

[73] The reason for using “untouchability” in inverted commas was to indicate that “untouchability” is used in this clause in the sense in which it is normally understood by the society. See CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[74]B.S. Rao (n 39) 297.

[75]CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[76]CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49).

[77]B. S. Rao (n 39) 116.

[78] See e.g. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130; P.V. Narasimha Rao v. State, (1998) 4 SCC 626.

[79] See A.K. Gopalan v. State of Madras, 1950 SCR 88, where it was held that the inclusion of Articles 13(1) and (2) in the Constitution appears to be a matter of abundant caution.

[80]See CAD, Vol. III <http://164.100.47.194/Loksabha/Debates/cadebatefiles/C29041947.html>(https://perma.cc/CJ7H-ZV49) (“Dr S.C. Banerjee:  … It is incumbent on us that we should be very clear as to make it explicit that in the future independent India, there should be no distinction between man and man in the social field. In other words, caste distinction must be abolished.”)

[81]George Bühler, The Laws of Manu (Vol. 25 of The Sacred Books of the East) (Oxford: Clarendon Press 1886) 192 , 11.

[82](1883) ILR 7 Bom 323.

[83](1883) ILR 7 Bom 323, 329.

[84]Marc Galanter, Law and Caste in Modern India (1963) 3 (11) Asian Survey 544, 545.

[85]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 29.

[86]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 7292, 7293.

[87] See e.g. Feroze N. Dotivala v. P.M. Wadhwani, (2003) 1 SCC 433, 442.

[88]http://www.scconline.com/DocumentLink/Nra5hpH9.

[89](1888) 21 QBD 52, 65 (CA).

[90](1888) 21 QBD 52, 65 (CA).

[91] See e.g. State of Karnataka v. Union of India, (1977) 4 SCC 608; CCE v. National Tobacco Co. of India Ltd. (1972) 2 SCC 560; Union of India v. Pfizer Ltd., (2018) 2 SCC 39.

[92]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[93]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 7288, 7289.

[94]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[95]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72, para 15.

[96]State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72.

[97]B. S. Rao (n 39) 172.

[98]B.S. Rao (n 39)  226.

[99]B.S. Rao (n 39) 226 .

[100] B.S. Rao (n 39)  226.

[101]See Constitution of India, Art 17.

[102]1951 SCC OnLine Bom 72.

[103]1951 SCC OnLine Bom 72.

[104]Shayara Bano v. Union of India, (2017) 9 SCC 1.

[105]ShayaraBano v. Union of India, (2017) 9 SCC 1, 66-67.

[106]1951 SCC OnLine Bom 72.

[107]Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.

[108]1951 SCC OnLine Bom 72.

[109]1951 SCC OnLine Bom 72.

[110]1951 SCC OnLine Bom 72.

[111]Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1, 233.

[112]Bhimrao Ramji Ambedkar and Vasant Moon, Dr Babasaheb Ambedkar, Writings and Speeches, Vol. 1 (1st Edn., Education Department, Government of Maharashtra 1979) 57.

[113]Bhimrao Ramji Ambedkar and Vasant Moon, Dr Babasaheb Ambedkar, Writings and Speeches, Vol. 1 (1st Edn., Education Department, Government of Maharashtra 1979)  68.

[114]Constitution of India, Preamble.

[115]CAD, Vol. VII http://164.100.47.194/Loksabha/Debates/cadebatefiles/C04111948.html (https://perma.cc/EL42-VKUW).

Op EdsOP. ED.

The doctrine of ‘double jeopardy’ protects a person from being punished again for the same offence, following a valid conviction or acquittal. It emanates from the legal maxim ‘non bis in idem’, which translates literally from Latin as ‘not twice in the same thing‘.

This rule is well recognised under Indian law and even finds place in the fundamental rights guaranteed under our Constitution. Article 20(2) of the Indian Constitution states “No person shall be prosecuted and punished for the same offence more than once”. Likewise, Section 300 of the Code of Criminal Procedure, 1978 (“CrPC”) protects a person once acquitted or convicted, from re-trial for the same offence or on the same facts for any other offence. Section 26 of the General Clauses Act, 1897 further goes on to protect from double prosecution under two or more enactments, limiting the prosecution and punishment to any one of those enactments.

The landmark case on the subject is the case of Thomas Dana v. State of Punjab [1], wherein a Constitutional Bench of five Judges of the Supreme Court evaluated the three requirements for double jeopardy i.e., prosecution, punishment and same offence and held that if these three requirements are satisfied, then the protection under Article 20(2) of the Constitution is guaranteed.

However, the question of ‘identity of offence’ is one to be determined on the facts and circumstances of a particular case. In a recent decision, the Securities Appellate Tribunal (“SAT”) in the case of PVP Ventures Ltd. v. Bombay Stock Exchange Ltd.[2], has held that Bombay Stock Exchange (“BSE”) and National Stock Exchange (“NSE”) can separately impose a penalty for violations of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“LODR Regulations”). The penalty imposed was for non-compliance of provisions of Regulation 17 (Board of Directors) and Regulation 19 (Nomination and remuneration committee) of the LODR Regulations in two consecutive quarters.

The Appellant did raise a defence of double jeopardy and cited a former decision of Securities Appellate Tribunal (“SAT”).[3], wherein SAT considering this objection as a plausible one, referred this question to SEBI. In response to this, SEBI informed the Tribunal that it had considered the matter and took a conscious decision that separate penalties could be imposed by the stock exchanges. Following the suit, SAT has now diverged from its previous prima facie view. While making the reference to SEBI, SAT had observed that “the violation, if any, made by the appellant is of Regulation 17(1) of LODR Regulations. It is not a Stock Exchange based violation where each Stock Exchange would be within its right to impose a fine. Prima facie only one fine could be imposed and not two sets of fines by the Stock Exchanges. This aspect of a violation of the LODR Regulations, in our opinion, is required to be considered by SEBI.

Justifying the double whammy, SEBI while deciding the reference held the issuer company accountable for making a conscious decision of listing on multiple bourses, which may also entail consequence such as penalties from each exchange. SEBI also observed that the LODR Regulations put in place a framework, where the primary responsibility for monitoring compliance was assigned to the stock exchanges. In terms of Regulation 97 of the LODR Regulations, recognised stock exchanges have been mandated to monitor the compliance with the provisions of the regulations, by entities listed on such exchanges. Exchanges have simultaneously been empowered to take action against listed entities for non-compliances, inter alia by way of penalties, suspension of trading activities, etc.

Pertinently, as per the regulatory requirements prescribed under both the Companies Act and securities law, entities are mandatorily required to seek listing only on any one stock exchange having country wide terminals. While listing on multiple bourses may include additional liquidity, visibility, access to more trading members, etc., it may assail multiple penalties in case of a default. Even in the regime of Listing Agreements, prior to the LODR Regulations, non-compliance would have assailed consequences under each such agreement.

What therefore emerges, is that the doctrine of double jeopardy is not applicable in case of actions by multiple exchanges under the LODR Regulations.


 *Deputy Managing Partner, Naik, Naik & Company, Mumbai

** Senior Associate, Naik, Naik & Company, Mumbai

[1] 1959 Supp (1) SCR 274.

[2] 2021 SCC OnLine SAT 90.

[3] W.S. Industries (India) Limited vs. BSE Ltd. 2019 SCC OnLine SAT 389

Op EdsOP. ED.

“Courts of equity make a distinction in all cases between that which is matter of substance and that which is matter of form; and if it finds that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat the substance.”

 — [Lord Romilly MR in Parkin v. Thorold[1]]

Whilst the captioned quote is a well-known maxim under the personal law of equity, the same principle was upheld by the Supreme Court in the context of the plenary powers of a State Legislature to retrospectively validate laws for repugnancy under Article 254(2)[2] of the Constitution.

In its judgment in G. Mohan Rao v. State of T.N.[3], the 2-Judge Bench of the Supreme Court comprising of Khanwilkar and Dinesh Maheshwari, JJ. clarified the law relating to retrospective validation of laws that have been judicially pronounced to be invalid for repugnancy.

This case concerned issues of repugnancy arising between the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” (the 2013 Act)[4] on the one hand, and three Tamil Nadu land acquisition statutes,  (i) the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act,1978 (Act of 1978)[5], (ii) the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Act of 1997), and (iii) the Tamil Nadu Highways Act, 2001 (Act of 2001)[6], on the other.

After the 2013 Act came into force, the State of Tamil Nadu wished to preserve its own State laws which allowed for more speedy acquisition proceedings and so sought to exclude them from the applicability of the Central law whilst maintaining the main reforms introduced by the Central law, namely, on enhanced compensation and resettlement and rehabilitation. It is noteworthy that several Central laws are excluded from the scope of the 2013 Act by being placed under Schedule 4[7] to the said Act. This Schedule includes the National Highways Act, 1956[8], which is pari materia with the 2001 Tamil Nadu statute on highways acquisitions.

To this end, in 2014, the State Legislature enacted a law inserting Section 105-A[9] into the 2013 Act insofar as it applies to the State of Tamil Nadu to continue acquiring lands under the three State laws by excluding the applicability of the 2013 Act. However, at the same time, maintaining the provisions on compensation and rehabilitation and resettlement under the 2013 Act. Presidential assent was obtained for Section 105-A under Article 254(2) of the Constitution.

This was challenged before the High Court of Madras. The High Court in its judgment dated 3-7-2019[10] struck down and declared all three State laws to be void for repugnancy and set aside all land acquisitions thereunder post coming into effect of the 2013 Act. The High Court held that the law enacting Section 105-A, which sought to revive the three State laws, was ineffective. It found that as the State laws had become void on the date the 2013 Act received Presidential assent (i.e. on 27-9-2013) they could not be “resuscitated” but had to be re-enacted as new individual Bills. The State appealed this judgment before the Supreme Court in a special leave petition which remains pending.

Meanwhile, given the dire effects of the judgment of the High Court on pending land acquisition proceedings and consequently on its exchequer, the State Legislature introduced and enacted “A Bill to revive the operation of the Tamil Nadu Acquisition for Harijan Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and the Tamil Nadu Highways Act, 2001” (the 2019 Act). The said Bill received Presidential assent under Article 254(2) on 2-12-2019. The Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 was challenged in writ proceedings before the Supreme Court by G. Mohan Rao and others (being owners of agricultural and wetlands sought to be acquired for highways development) on the grounds, inter alia, that the 2019 Act amounts to subversion of the judgment of the High Court.

In its judgment penned by A.M. Khanwilkar, J. the Supreme Court dismissed the writ petition, held that retrospective validation of laws where repugnancy arises between State and Central subjects on the Concurrent List is a common phenomenon and that in judging the constitutionality of these validating laws, courts ought not to place form over substance.

Article 254(2) of the Constitution states that wherever a State law is repugnant with an earlier Central law regarding one of the matters enumerated in the Concurrent List then the State law may nevertheless prevail in the State if it has received Presidential assent. Thus, Article 254(2) is a means to cure any repugnancy that may otherwise render the State law unconstitutional. The provision is as follows:

(2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

The proviso to Article 254(2) clarifies that the above power is subject to the overriding power of Parliament to enact a law amending or repealing the State law that has received Presidential assent under this provision.

In G. Mohan Rao[11], A.M. Khanwilkar, J. correctly limited himself to the issue of repugnancy and not the vires of the 2019 Act vis-à-vis Part III of the Constitution and held that the High Court applied the law under Article 254(2) in an erroneous manner to the facts of the case. In particular, the High Court erred in insisting that all three State laws be re-enacted afresh. According to the Supreme Court, the High Court had placed a hypertechnical divide between re-enactment and revival or validation.

Validating statute need not be a re-enactment of the older repugnant law

 In its findings, the Supreme Court reiterated the well-established legal position that the State Legislature can retrospectively validate laws in response to judicial invalidation of such laws. Running through past authorities such as National Agricultural Coop. Mktg. Federation of India Ltd. v. Union of India[12], Ujagar Prints (2) v. Union of India[13] and Indian Aluminium Co. v. State of Kerala[14] , the Supreme Court held that there is a consensus that legislative validation of laws does not amount to judicial subversion if the following conditions are met:

(i) The legislature must be having power over the subject-matter as also competence to make a validating law.

(ii) There must be an explicit validating clause coupled with a substantive change in the earlier position.

(iii) The retrospective operation must be specified clearly.

(iv) There can be no express or declaratory overruling of the judgment of the Court.

The Supreme Court found that all four requirements were met by the 2019 Act. It held that the 2019 Act had a clear determinative principle demonstrated by:

(a) its Statement of Objects and Reasons which specifically stated that it was for the revival of the  State Acts concerned declared to be repugnant by the High Court and to amend the same and for validating the actions already taken thereunder;

(b) that the Act is divided into three parts and each part is dedicated explicitly to the State enactment concerned; and

(c) that it expressly revived the three State acts with effect from 26-9-2013 (one day before the Presidential assent was given to the 2013 Act) along with all orders, notifications, etc. and saved all land acquisitions thereunder.

 A.M. Khanwilkar, J. whilst noting that the State Legislature neither individually placed the State laws in the form of new Bills before the House and nor did it separately amend the three State Acts, held that the 2019 Act was nevertheless a practical piece of validating law and did not subvert the High Court’s judgment for the reasons mentioned above.

Furthermore, referring to the doctrine of referential legislation (wherein a law is incorporated into and forms part of another through express reference), and relying on its judgment in Ujagar Prints (2)[15] where it was held that legislation by reference is practically tantamount to re-enactment — the Supreme Court held that the 2019 Act effectively incorporated the three State laws by reference and that no re-enactment was required.

The Supreme Court put an end to needless confusion caused by the judgment of a 3-Judge Bench of the Delhi High Court in P.L. Mehra. v. D.R. Khanna[16], which held that revalidation would not be permissible as a constitutionally invalid statute was a dead letter and could therefore technically not be “revived” but had to be re-enacted in the strict sense of that term. The Supreme Court found that P.L. Mehra[17] was concerned with nullity under Article 13[18] of the Constitution  (i.e. voidness due to violation of any of the provisions of Part III of the Constitution) and not with repugnancy. Ergo, repugnancy can be cured through a validating amendment or a truncated statute such as the 2019 Act and did not have to be re-enacted.

Sufficiency of Presidential assent under Article 254(2)

 The Supreme Court also correctly emphasised substance over form when examining the nature of the Presidential assent given to the 2019 Act under Article 254(2) of the Constitution. According to A.M. Khanwilkar, J. determinative in this respect is the transparency of communication between State and Centre when seeking Presidential assent. In the present case, in its letter seeking Presidential assent, the State had briefly narrated the entire factual position including about the failed attempt to revive the State enactments via Section 105-A and expressly outlined that repugnancies may exist between the 2013 Act and the 2019 Act. The Supreme Court reiterated the law set out in its earlier judgment in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.[19]  in which it upheld the legal proposition that the President’s assent is not justiciable but at the same time Article 254(2) cannot be abused to obtain a general assent. Relying on this dictum, the Supreme Court in effect held that it would not go behind or do hair-splitting at what weighed in the President’s mind when he/she assented to the Bill. So long as the specific State Bill is with the President, the specific Central Act identified and attention invited to the apprehended repugnancy.

One further finding of the Supreme Court related to the objection raised by the writ petitioner that the deemed date of commencement of the 2019 Act (being 26-9-2013) was fatal to the 2019 Act. They argued that on 26-9-2013 there was no 2013 Act in operation (which became operational only from 27-9-2013) and when the 2013 Act came into operation the next day, the State enactments would again become repugnant.  A.M. Khanwilkar, J. rejected this circuitous argument and held that there is a difference between a law being “made” and its commencement. It was held that making of a law involves a demarcated legislative procedure which culminates with the assent of the President or Governor. Applying the law set out in State of Kerala v. Mar Appraem Kuri Co. Ltd.[20], the Supreme Court found that repugnancy occurs at the point in time the law is made. The 2019 Act was therefore “made” when it received Presidential assent on 2-12-2019. The fact that it was given retrospective effect from 26-9-2013 was done in abundant caution to save past land acquisitions under the three State laws and not to compete with the laws existing in the past at that point of time (i.e. the Land Acquisition Act, 1894[21]). Thus, the Supreme Court found for the State of Tamil Nadu on all counts.

The Court’s emphasis on substance over form is evident from the following excerpt in G. Mohan Rao[22]:

 “61. … To say that a particular form of legislative activity is not permissible would require a strong basis in the Constitution, which has not been pointed out by the petitioners. The Constitution envisages a judicial review of the existence of legislative competence and use of such competence to enact something that does not violate Part III or other provisions of the Constitution. It does not envisage a review of the cosmetic characteristics of a legislation as long as the substance of such legislation has its roots in the Constitution.”

 The judgment of the Supreme Court is therefore legally correct and sound as it delineates the powers of the Court when it comes to adjudicating the constitutionality of validating laws under Article 254(2) and recognises the wide plenary powers of the State Legislature in legislating on matters in the Concurrent List. In the process, the judgment stresses that unduly formalistic fetters cannot be placed on the vast plenary powers of the State Legislature.

 A.M. Khanwilkar, J. was not convinced by the technical objections taken by the writ petitioners and rightly so. The Supreme Court recognised that, in effect, all that is practically required for validating laws where repugnancy arises is explicit statutory wording. This is of course subject to the validating law passing the test of constitutionality under Part III but, as noted above, this was not an issue before the Court in G. Mohan Rao[23].


 †† Advocate-on-Record, Supreme Court of India.

† Advocate, Supreme Court of India.

[1]   (1852) 16 Beav 59.

[2] Article 254(2)  of the Constitution.

[3] 2021 SCC OnLine SC 440.

[4] <http://www.scconline.com/DocumentLink/Y53nZ49Z>.

[5] <http://www.scconline.com/DocumentLink/wze2D86P>.

[6] <http://www.scconline.com/DocumentLink/i9oMrdWU>.

[7]  <http://www.scconline.com/DocumentLink/k4TW71zs>.

[8] http://www.scconline.com/DocumentLink/Ehv7iE72>.

[9] <http://www.scconline.com/DocumentLink/Q9Z2Fpuh>.

[10] Caritas India v. Union of India, 2019 SCC OnLine Mad 2167.

[11] 2021 SCC OnLine SC 440.

[12] (2003) 5 SCC 23.

[13] (1989) 3 SCC 488.

[14] (1996) 7 SCC 637.

[15] (1989) 3 SCC 488.

[16] 1970 SCC OnLine Del 203.

[17] 1970 SCC OnLine Del 203.

[18] Article 13 of the Constitution.

[19] (2002) 8 SCC 182.

[20] (2012) 7 SCC 106.

[21] Land Acquisition Act, 1894.

[22] 2021 SCC OnLine SC 440.

[23] 2021 SCC OnLine SC 440.

Op EdsOP. ED.

1. There is no definition of “perjury” either under the Penal Code, 18601 or for that matter the Criminal Procedure Code, 19732. However, the Supreme Court in Kishorbhai Gandubhai Pethani v. State of Gujarat3 has succinctly elaborated the meaning of perjury in para 9, which reads as under:

9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury….

The rate of conviction in our country is very minuscule as compared to the offences which are registered. One of the main reasons, for the rate of conviction being low can be attributed to the fact that the witness turns hostile during the trial.

2. The investigation of any offence starts on receipt of complaint regarding commission of an offence. The investigating officer then proceeds to collect evidence in respect of commission of an offence and also records statement/s of the witnesses. Based upon such statements and other materials, a charge-sheet is filed before the court and trial is proceeded. The witnesses who have given their statement under Section 161 CrPC4 are called upon to depose in the court in support of their statements taken during the investigation. Most of the times during the course of cross-examination, the witness disowns his statements, makes contradictions or omissions which compels the prosecutor to declare the said witnesses as hostile.

3. Some of the witness who depose are eyewitness to the crime/offence. Thus, the entire edifice of criminal case falls to the ground if such witness on whose statement the entire evidence is collected turns hostile. Therefore, a seminal question that begs consideration is as to why such witness cannot be prosecuted for perjury and why the investigating agency should not file proceedings under Sections 1915 and 192 of the Penal Code6?If the purity of criminal justice is to be maintained, it is necessary that the courts as also investigating agencies takes up the issue of witness turning hostile seriously. Unless the investigating machinery and courts do not take action against such hostile witnesses and send a message loud and clear that such conduct of witness will be frowned upon by the lodging prosecution, the rate of conviction will not improve and the social order will not be maintained.

4. There is always a subtle distinction between a complaint of giving false evidence before the investigating agency and giving false evidence in the court in view of provisions of Sections 195(1)(b)(i) and (ii) of the Criminal Procedure Code7. The Supreme Court in Bhima Razu Prasad v. State8 has considered the law and has relying upon the judgment of the Supreme Court in Bandekar Bros. (P) Ltd. v. Prasad Vassudev Keni9 has held that the bar under Section 195(1)(b)(i) of the Criminal Procedure Code will not apply to an offence punishable under Section193 of the Penal Code10 which is committed during the stage of investigation and if such prosecution is registered prior to commencement of proceedings and production of such evidence before the trial court. The Supreme Court has specifically held in para 44 of its judgment in Bhima Razu Prasad case11 that just like a private party who has been victim of forgery committed outside the precincts of the court, the investigating officer should not be let remediless against the persons who has produced false evidence.  In paras 45 and 46 the Supreme Court has clearly held that investigating agency is best placed to verify and prove such fabrication of evidence and that investigating agency cannot wait for the trial court to take chance to form his opinion.

5. It is pertinent to note that witness turns hostile only during his cross-examination and then the only course available is cognizance of such false evidence only by the court before whom false evidence is given. The court depending upon the impact of the evidence decides to lodge prosecution against such hostile witness.  However, such type of action is superlative. In fact, in my opinion, a time has come where the courts trying criminal offence needs to take up bold steps of lodging prosecution to ensure that the witness do not turn hostile whatever the impact of such evidence may be on the outcome of trial. The court can very well prior to the evidence of witness warn him about the consequences of turning hostile as at the times in cases which are based solely upon circumstantial evidence it is necessary that the witness are put to notice that any attempt on their part who turns hostile would invite criminal prosecution.

6. It is also necessary that investigating agency informs witness that they will have to stick to their version made in the statement, else the investigating agency would also lodge prosecution, this would ensure to an extent, the witness sticking up to his statement in the court.

7. As stated by the Supreme Court in Bhima Razu Prasad12 and Bandekar Bros.13 the interest of victim also needs to be protected and therefore, it is necessary that the offence of perjury and giving false evidence is looked upon seriously by both the investigating agency and court.

8. Most of the times a prosecution against a person tendering false evidence is scuttled on a technical plea of bar under Sections 195(1)(b)(i) or (ii) CrPC. However, in view of the law laid down in Bhima Razu Prasad’s case14 more particularly paras 41, 45, 46 and 51, the said bar will not extend to provide protection to a person who has been accused of tendering false evidence during investigative stage. Thus, a hostile witness who gives his statement to the investigating officer during the investigation and on whose statement the chain is completed if he turns hostile in my humble opinion can be prosecuted for tendering false evidence.

9. Only a proactive judiciary can curb the menace of witness turning hostile by taking stern action against such witness who turn hostile or give false evidence. The investigating machinery also needs to ensure that the witness sticks to his statements by forewarning the witness about the consequences of his turning hostile. It is also necessary to implement witness protection programme to prevent the witnesses turning hostile.


* Advocate, Bombay High Court.

1 Penal Code, 1860.

2 Criminal Procedure Code, 1973.

3(2014) 13 SCC 539, 540.

4http://www.scconline.com/DocumentLink/NbH2cGQv.

5http://www.scconline.com/DocumentLink/XLgL0vs9.

6http://www.scconline.com/DocumentLink/Iw3fvV32.

7http://www.scconline.com/DocumentLink/0581Rd5L.

82021 SCC OnLine SC 210.

92020 SCC OnLine SC 707

10http://www.scconline.com/DocumentLink/TU2r9S13.

112021 SCC OnLineSC 210.

122021 SCC OnLine SC 210.

132020 SCC OnLine SC 707.

142021 SCC OnLine SC 210.

Op EdsOP. ED.

A. Reforms to the independent directors’ regime

 The modern business corporations are often shrouded with a perplexing issue – which stakeholder should perform the governance activity and what is the appropriate way that one must bestow risks and rewards on various stakeholders of the company? According to one school of thought, the corporate entity is a “legal fiction”[1] wherein the managers undertake various profit-making activities keeping in mind the interests of the shareholders of such entity. Whereas there is an opposing view which considers the corporate entity as a “social being”[2] i.e. it owes obligations towards not only shareholders, but also towards the employees and the society.

The Securities Exchange Board of India (SEBI) vide consultation paper dated 1-3-2021 (Consultation Paper), proposed a slew of measures to address the extant corporate governance scenario in India[3] and thereafter, SEBI at its board meeting of 29-6-2021 (Board Meeting), retracted certain proposals which were aimed at overhauling the Indian corporate governance framework, while duly approving several other proposals.[4]

In the Consultation Paper, SEBI noted that an independent director (ID) is a critical spoke in the entire wheel of corporate governance, especially in the case of safeguarding minority shareholders’ rights.[5]Subsequent to the corporate sector being confronted with two recent corporate governance failures viz. the dismissal of Nusli Wadia (ID at certain Tata group companies) for supporting the minority shareholder group in the Tata v. Mistry dispute[6] and PNB Bank – Nirav Modi scam[7], SEBI attempted to solve two pertinent issues (i.e. conflict of interest arising from proximity of ID with the promoter and insufficient protection of minority shareholders’ rights) by promoting the UK and Israel model of appointment/reappointment of IDs.[8]

Accordingly, in the Consultation Paper, SEBI proposed for appointment and reappointment of IDs through “dual approval” route i.e.

“(i) approval of shareholders;

(ii) approval by ‘majority of the minority’ (simple majority) shareholders.

The approval at point (i) above, shall be through ordinary resolution in case of appointment and special resolution in case of reappointment. If either of the approval thresholds are not met, the person would have failed to get appointed/re-appointed as ID.

Further, in such case, the listed entity may either:

(i) propose a new candidate for appointment/reappointment; or

(ii) propose the same person as an ID for a second vote of all shareholders (without a separate requirement of approval   by ‘majority of the minority’), after a cooling-off period of 90 days but within a period of 120 days. Such approval for appointment/reappointment shall be through special resolution and the notice to shareholders will include reasons for proposing the same person despite not getting approval of the shareholders in the first vote.”

Similarly, in the Consultation Paper, SEBI promoted for a dual approval system for removal of IDs as well. However, in its Board Meeting, SEBI disregarded this dual approval approach entirely and mentioned that any appointment, reappointment, and removal of IDs shall be carried out through a special resolution in the listed companies.[9] The amendments to the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015[10], reflecting this approach will be effective from 1-1-2022. It is noteworthy that the SEBI Board of Directors also agreed to make a reference to the Ministry of Corporate Affairs, for giving greater flexibility to the companies while deciding the remuneration for all directors (including IDs), which may include profit-linked commissions, sitting fees, Employees Stock Ownership Plans (ESOPs), etc., within the overall prescribed limit specified under the Companies Act, 2013[11]. This would certainly enable companies to a great extent in securing qualified and competent directors.

However, these laudatory measures may not be adequate in distancing IDs from their alleged entwined relationship with the promoter group and thereby, lingering doubts remain regarding IDs being truly “independent” or not.

It is worthwhile to note that the Report of Kumar Mangalam Birla Committee on Corporate Governance in the year 2000 made a forward-looking statement that the corporate governance mechanism needs to be dynamic to cater to the needs of increased competition in the markets and rapidly evolving technological systems.[12] It is not all water under the bridge yet and the regulators could give more teeth to the relevant listing regulations so that the listed entities adhere to 3Cs approach (i.e. compliance, conduct and competence) while selecting, removing and setting out the roles and responsibilities of IDs.

B. Proposed reforms to the promoter regime

In a welcome move and in line with SEBI’s continuous efforts to adopt international best practices, SEBI had floated a consultation paper earlier this year in May 2021 proposing a shift from the concept of a “promoter” to a “person in control”.[13] This would be a most fundamental change, potentially impacting current regulations under the Indian companies’ law, restructuring & insolvency law, banking & insurance law and the merger-control regime, particularly in the context of “control”.

The proposed reform is an acknowledgement of the current scenario relating to ownership and control of a number of Indian companies, which is indeed shifting from the traditional family-owned, closely held structures, to widely dispersed shareholding, with institutional and private equity investments and often, nothaving a clearly identifiable “promoter” or “promoter group”, a concept which in itself is fairly unique to the Indian companies.

The Consultation Paper has even cited that:

The aggregate shareholdings of promoters in the top 500 listed entities in terms of market value, peaked at 58% in 2009 and is showing a downward trend. The promoters’ shareholding was approximately 50% in 2018. At the same time, the shareholding of institutional investors in the top 500 listed companies, in terms of market value, increased from approximately 25% in 2009 to 34% in 2018[14].

This is also a reflection of continuing control deals across sectors by private equity investors, and often tailored to unique situations in the Indian mergers & acquisitions and private equity regime.

One needs to be mindful about the fact that the “promoter” concept is deeply entrenched amongst Indian companies and the proposed reform will also require a mindset change, which the consultation paper has appropriately planned for by proposing that such reform is carried out over a period of 3 years.

On 6-8-2021, the SEBI Board of Directors gave its in-principle approval to “shifting from the concept of promoter to ‘person in control’ or ‘controlling shareholders’ in a smooth, progressive and holistic manner”[15].


*Partner at Quillon Partners (formerly Platinum Partners, Mumbai). Rohan’s LinkedIn profile can be accessed at https://in.linkedin.com/in/rohan-kumar-a53187a.

**Senior Legal Manager at SpiceJet Limited, an airline company in India. Shinjni’s LinkedIn profile can be accessed at https://in.linkedin.com/in/shinjnikharbanda.

The authors would like to clarify that the views mentioned in this article are the authors’ personal views and do not reflect the views of their respective organisations.

[1]Lynn S. Paine and Suraj Srinivasan, A Guide to the Big Ideas and Debates in Corporate Governance, Harvard Business Review (2019) <https://hbr.org/2019/10/a-guide-to-the-big-ideas-and-debates-in-corporate-governance>.

[2]Gerald F. Davis, Marina V.N. Whitman and Mayer N. Zald, The Responsibility Paradox, Stanford Social Innovation Review (Winter 2008) <https://ssir.org/articles/entry/the_responsibility_paradox>.

[3]SEBI, Consultation Paper on Review of Regulatory Provisions related to Independent Directors, SEBI Reports and Statistics (March 2021) <https://www.sebi.gov.in/reports-and-statistics/reports/mar-2021/consultation-paper-on-review-of-regulatory-provisions-related-to-independent-directors_49336.html>.

[4]SEBI, SEBI Board Meeting, SEBI Press Releases (June 2021) <https://www.sebi.gov.in/media/press-releases/jun-2021/sebi-board-meeting_50771.html>.

[5]SEBI, Consultation Paper on Review of Regulatory Provisions related to Independent Directors, SEBI Reports and Statistics (March 2021) <https://www.sebi.gov.in/reports-and-statistics/reports/mar-2021/consultation-paper-on-review-of-regulatory-provisions-related-to-independent-directors_49336.html>.

[6]UmakanthVarottil, SEBI’s Backtrack on Independent Directors, The Indian Express (July 2021) <https://indianexpress.com/article/opinion/columns/tata-mistry-corporate-dispute-nusli-wadia-sebi-appointment-removal-of-independent-directors-7403380/>.

[7] Param Pandya, Public Sector Banks in India: Revisiting Regulatory and Corporate Governance in the Light of the PNB Scam, South Asia @ LSE blog (30-5-2018) <https://blogs.lse.ac.uk/southasia/2018/05/30/public-sector-banks-in-india-revisiting-regulatory-and-corporate-governance-in-the-light-of-the-pnb-scam/>

[8]SEBI, Consultation Paper on Review of Regulatory Provisions related to Independent Directors, SEBI Reports and Statistics (March 2021) <https://www.sebi.gov.in/reports-and-statistics/reports/mar-2021/consultation-paper-on-review-of-regulatory-provisions-related-to-independent-directors_49336.html>.

[9]SEBI, Consultation Paper on Review of Regulatory Provisions related to Independent Directors, SEBI Reports and Statistics (March 2021) <https://www.sebi.gov.in/reports-and-statistics/reports/mar-2021/consultation-paper-on-review-of-regulatory-provisions-related-to-independent-directors_49336.html>.

[10]Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015

[11]Companies Act, 2013.

[12]SEBI, Report of the Kumar Mangalam Birla Committee on Corporate Governance, SEBI Reports (2002) <https://www.sebi.gov.in/media/press-releases/oct-1999/corporate-governance_18186.html>.

[13]SEBI, Consultation Paper on Review of the regulatory framework of promoter, promoter group and group companies as per Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018, SEBI Reports (11-5-2021) <https://www.sebi.gov.in/reports-and-statistics/reports/may-2021/consultation-paper-on-review-of-the-regulatory-framework-of-promoter-promoter-group-and-group-companies-as-per-securities-and-exchange-board-of-india-issue-of-capital-and-disclosure-requirements-re-_50099.html>.

[14]SEBI, Consultation Paper on Review of the regulatory framework of promoter, promoter group and group companies as per Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018, p. 6, SEBI Reports (11-5-2021) <https://www.sebi.gov.in/reports-and-statistics/reports/may-2021/consultation-paper-on-review-of-the-regulatory-framework-of-promoter-promoter-group-and-group-companies-as-per-securities-and-exchange-board-of-india-issue-of-capital-and-disclosure-requirements-re-_50099.html>.

[15]SEBI, Minutes of SEBI Board Meeting, SEBI Press Releases (6-8-2021)

<https://www.sebi.gov.in/media/press-releases/aug-2021/sebi-board-meeting_51707.html>

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., decided an issue with regard to the habeas corpus petition for custody of a minor.

Instant petition was filed to seek custody of petitioner 2 stated to be a minor of age about 5 years and 10 months by petitioner 1 who asserted to be his father.

Factual Background

It was stated that petitioner 2 was born in January 2014 and in May 2015 the mother of the corpus committed suicide at the petitioner’s home and thereafter an FIR was lodged against petitioner 1 and other family members under Section 498-A, 304-B of Penal Code, 1860 and 3/4 of Dowry Prohibition Act and petitioner 1 was sent to jail.

Respondent 4 filed a Habeas Corpus Writ Petition and this Court, upon taking notice of the fact that the father of the corpus and other family members were in jail, passed an order granting custody of the minor child to the maternal grandfather, who was respondent 4 in the present case.

Analysis, Law and Decision

High Court opined that lower courts were duty-bound to consider the allegations against the respondent and pendency of criminal case for an offence punishable under Section 498-A IPC.

Further, the Court added that the court of law should consider the matter with regard to the “character” of the proposed guardian.

Thus, a complaint against the father alleging and attributing the death of mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person.

In the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, where in almost similar circumstances the father was facing a charge under Section 498-A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

In Rachit Pandey (minor) v. State of U.P., Habeas Corpus Writ Petition No. 193 of 2020 this Court held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the prerogative writ of habeas corpus, is in the nature of the extraordinary remedy, which may not be used to examine the question of custody of a child except wherein the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful.

Senior Counsel appearing for the petitioners did not point out as to how, the custody of petitioner 2 with his maternal grandfather can be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum.

Therefore, the petition was dismissed. [Awanish Pandey v. State of U.P., Habeas Corpus Writ Petition No. 1057 of 2019, decided on 27-9-2021]


Advocates before the Court:

Counsel for Petitioner: Sanjay Mani Tripathi, Adeel Ahmad Khan, Na

Counsel for Respondent: G.A., Anupama Tripathi, Rakesh Kumar Tripathi

Case BriefsDistrict Court

Patiala House Courts, New Delhi: Prayank Nayak, MM-01 acquitted the accused of offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1885, holding that the accused successfully dislodged the statutory presumption.

In the present matter, complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 for the dishonour of cheque for an amount of Rs 6,82,000 and failure to pay the said amount despite legal demand notice.

Path Paving to this Matter

Complainant had given a loan of Rs 6,82,000 to the accused in cash and later the accused had issued a cheque for the repayment of the loan. Though the same was dishonored upon its presentation and no payment was made despite the receipt of legal demand notice.

Analysis, Law and Decision

Offence under Section 138 of the Negotiable Instruments Act consists of the following ingredients:

  1. The cheque was drawn by drawer on an account maintained by him with the banker for payment of any amount of money out of that account.
  2. The said payment was made for discharge of any debt for other liability in whole or in part.
  3. The said cheque was returned unpaid by the bank.
  4. The cheque was presented to the bank within a period of 3 months from the date on which it was drawn or within the period of its validity whichever is earlier.
  5. The payee or the Holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
  6. The drawer of the cheque fails to make the payment of the said amount of money to the payee or as the case may be the Holder in due course of the cheque within 15 days of the receipt of the said notice.
  7. The payee or the Holder in due course of the cheque shall make a complaint in writing within one month of the date on which the Cause of Action arises i.e., 15 days from the receipt of the notice by the drawer.

In the present matter, it was noted that the receipt of legal notice was accepted and the duly replied and the dishonour memo issued by the bank was also placed on record.

Court stated that by virtue of Section 146 of NI Act, the dishonour of cheque in question had to be presumed.

Onus to prove

As per Section 118 (g) of NI Act, the holder of the cheque is presumed to be holder in due course, hence the accused has to prove that the cheque was not issued to the complainant.

Accused had admitted the signature on the cheque, thus presumption under Section 118(a) of the NI Act and Section 139 of NI Act will be drawn.

Delhi High Court’s decision in Devender Kumar v. Khem Chand,2015 SCC OnLine Del 12578, it was held that:

“However, in Rangappa v. Sri Mohan, (2010) 11 SCC 441, a three judges’ bench of the Supreme Court held that Section 138 of the N.I. Act includes the presumption enforceable debt or liability and that the holder of the cheque is presumed to have received the same in discharge of such debt or liability……. without doubt, the initial presumption is in favour of the complainant.” (Para 20).

Whether the accused has been able to dislodge the presumption of liability as well as issuance on the basis of cross-examination of complainant and the evidence led by him?

In the instant matter, it is very pertinent to note that there is no written/documentary proof of loan and the complainant has also not mentioned any date of giving loan amount.

Due to the above-stated observation, Bench stated that as there was absence of documentary proof as well as the date of giving loan, the whole case seems to be doubtful.

What all makes this case doubtful?

Court noted that complainant despite having friendly relations and extending friendly loan of large amount to the accused is not even aware about the name of wife of the accused nor could tell whether accused is having kids or not. Though it has been claimed by him that he knows the accused of around 5 years, but he has never gone inside the house of the accused.

The above stated makes it doubtful for the Court to believe that the relations between the parties were such that the complainant would lend the stated sum to the accused that too without any documentary evidence.

Discrepancy in complainant’s oral testimony and bank statement was found along with discrepancy in photocopy of his Balance-Sheet and certified copy of the same.

The above-stated discrepancies strike the root of the complainant’s case.

Complainant in his cross-examination admitted that he had to pay loans to various persons and institutions, this fact leads the Bench to the question of why a person himself being liable to pay loan to various persons would advance loan of more than Rs 6 lakhs to some other person.

Therefore, accused dislodged the presumption in favour of the complainant by impeaching his credit during cross-examination and due to the absence of documentary proof.

Complainant did not examine any witnesses to prove the loan transaction and the above discussion cast doubt over the complainant’s version that he had given loan to the accused.

In Delhi High Court’s decision, Kulvinder Singh v. Kafeel Ahmad, 2014 (2) JCC (NI) 100 it was observed that,

“The basis principle in Criminal law is that the guilt of respondent/accused must be proved beyond reasonable doubt and if there is slightest doubt about commission of an offence then the benefit has to accrue to him”.

 “…Benefit of doubt has to accrue to the accused.”

 Court acquitted the accused for the offence under Section 138 NI Act. [Balwant Singh v. Angad Makol, R. No. 55576 of 2016, decided on 5-10-2021]

Appointments & TransfersNews

Appointment of Additional Judges | Kerala High Court


Four Additional Judges appointed to Kerala High Court:

  • Chandrasekharan Kartna Jayachandran
  • Sophy Thomas
  • Puthen Veedu Gopala Pillai Ajithkumar
  • Chandrasekharan Sudha

Ministry of Law and Justice

[Notification dt. 13-10-2021]

Appointments & TransfersNews

Appointment of Judges | Orissa High Court


Following 3 Judges appointed to Orissa High Court:

  • Mrugankar Sekhar Sahoo
  • Radha Krishna Pattanaik
  • Sashikanta Mishra

Ministry of Law and Justice

[notification dt. 13-10-2021]