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The Constitution of a country is the supreme law. A written Constitution with a Bill of Rights seeks to place certain human rights and fundamental freedoms beyond the reach of ordinary laws. When human rights are incorporated into the municipal law and guaranteed by a written constitution, they are called fundamental rights and are justiciable and enforceable. As the Supreme Court significantly observed in Minerva Mills Ltd. v. Union of India1:

 

All States, whether democratic or authoritarian, purported to govern for the welfare of the people. What distinguishes a democratic State from a totalitarian one is that a free democratic State respects certain basic human rights or fundamental rights and endeavours to achieve its objectives through the discipline of fundamental freedoms.

 

We begin with the concept of “State” in Article 12. The constitutional mandate in many of the provisions in the chapter on fundamental rights is to the State not to violate fundamental rights. The State is prohibited from making laws inconsistent with Part III. Fundamental rights are enforceable against the State whose import has been expanded over a period of time.

 

The protection and enforcement of fundamental rights and freedoms is both the power and duty of the courts and the grant of appropriate remedy is not discretionary but obligatory. Even in England with no Bill of Rights it was said over a century ago:

To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand. (Scott v. Scott2)

 

The judiciary, particularly the Supreme Court, is constituted the guardian of fundamental rights. Consistent with that function and responsibility the Court cannot refuse to entertain cases seeking protection against infringement of fundamental rights. A petition under Article 32 has to be entertained if the existence of a fundamental right and its breach, actual or threatened, is alleged and prima facie established. The position of the High Courts under Article 226 in this regard is no different.

 

Every action of the State, legislative, executive or judicial, if it violates fundamental rights is void. It is well settled that a writ lies against the judiciary in the exercise of its non-judicial functions, administrative or executive like appointments of officials as also legislative like rule making. But it has been held that the judiciary is not included in “State” in Article 12 insofar as it relates to exercise of judicial power and no writ would lie against it. The raison d’être for this is that a judicial decision in an adjudication by a court of competent jurisdiction cannot affect fundamental rights and no writ of certiorari can be issued against a court. The proposition that judicial orders cannot at all violate fundamental rights appears to suffer from some fundamental flaws.

 

Can judicial orders made by a court which is the guardian of our rights and liberties result in breach of fundamental rights and, if so, with what result and remedy? Who watches the watchmen? Can the judiciary in the discharge of judicial functions violate fundamental rights and be amenable to the writ jurisdiction is an issue of seminal importance touching upon the rule of law and our constitutional scheme.

 

In this context it has been held that (i) the judiciary in the discharge of its judicial functions cannot infringe fundamental rights, and (ii) no writ would lie against the judiciary.

 

The majority in Mirajkar3 held that it is singularly inappropriate to assume that judicial decisions can affect fundamental rights; at best it could only be a mistaken or wrong exercise of jurisdiction which can be corrected in appeal or revision but it is not open to be corrected by exercise of writ jurisdiction. On the facts it was held that there was no violation of the fundamental right under Article 19(1)(a), as contended. Assuming that a fundamental right had been violated, it was considered and held that a writ of certiorari was not available against the High Court.

 

Antulay4 is perhaps the only decision where the Court held by a majority that an order of the court, be it administrative or judicial, against the provisions of the Constitution or violative of principles of natural justice can always be remedied ex debito justitiae. Of course this was an appeal by special leave and not a writ petition.

 

There was a powerful dissent by Venkatachaliah, J. where the learned Judge held that the impugned withdrawal of the case from the Special Judge to the High Court had been challenged earlier and upheld by the Supreme Court and it could not again be sought to be undone by a side wind, as it were. There was thus a finding against any such violation; the principle of finality of judgments/orders would apply.

 

In Hurra case5 it was laid down that a judgment may be assailed as a nullity on grounds like violation of natural justice, where the applicant was not a party to the lis or was not notified of the proceedings or where there was reasonable apprehension of bias of the Judge. But even in Hurra5 which innovated the concept of a curative petition and held that a judgment may be impugned as noted above, it was emphatically reiterated that a judicial decision cannot be violative of fundamental rights and no writ would be maintainable against the judiciary on that ground. Further a curative petition is a proceeding after one has exhausted all remedies-appeal, review, et al.

 

It is only in Mirajkar3 that the question directly arose whether a judicial order may breach fundamental rights, and if it did, whether as a remedy therefor a writ could issue to a superior court. The majority answered both in the negative-the judiciary cannot in discharging judicial functions infringe fundamental rights and no writ of certiorari will issue to a superior court to remedy the violation, if any. The dissent of Hidayatullah, J. took the opposite view on both counts.

 

There are two aspects of the issue : one, whether a judicial decision can violate fundamental rights and the other, the remedy therefor if it did-whether a writ would lie.

 

It is significant that Mathew, J. hit the nail on the head when he observed in Kesavananda Bharati6 that Hidayatullah, J. in his dissenting judgment in Mirajkar3 rightly took the view that the judiciary is also “State” within the definition of that word in Article 12. He went on to say that convicting and punishing a person twice for an offence by a judgment is equivalent to the “State passing a law in contravention to the rights conferred by Part III” for the purpose of enabling the person to file a petition under Article 32 to quash the judgment.7

 

It is submitted that in all cases, particularly Mirajkar3, the Court’s enquiry started from the wrong end i.e. whether a writ of certiorari would lie to a superior court. The Court conceptualised and defined the wrong having regard to and conditioned by the remedy available to right the wrong. This question of the remedy if there is a wrong is indeed the secondary question; the primary question is whether a judicial order can infringe a fundamental right. The Court seems to have forgotten the maxim that every right has a remedy.

 

Any State action, legislative, administrative or judicial, which violates “due process”, either directly or indirectly, is void. [Basu’s Commentary on the Constitution of India, (7th Edn.) Vol. C, p. 29 – with reference to the position in the USA.] There are many instances. The American Constitution XIV Amendment is similar to our Article 14.

  1. … it has never been suggested that State court action is immunized from the operation of those provisions [XIV Amendment’s prohibitory provisions] simply because the act is that of the judicial branch of the State Government. [Shelley v. Kraemer8]

 

It may be difficult to establish violation of Article 14 or any other provision of Part III by a Judge acting judicially, but if proved it has to be condemned and remedied. Transfer of cases-civil and criminal-which the law permits, withdrawal of cases before a smaller Bench to a larger Bench may be impugned as being arbitrary or violating Article 14 by denying the petitioner a right of appeal available to all other litigants. That would be carrying matters to absurd lengths and making a mockery of the system of administration of justice. Otherwise a litigant could always complain that a Judge heard a particular case for a longer time and his for a shorter duration and denied him equality of opportunity offending Article 14. These are not the kind of violations of fundamental rights that we are discussing, but it is something more substantial.

 

As Seervai points out as an illustration [H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. 1, p. 395], if a Judge denied discretionary orders of a particular kind to members of one community while granting them under similar circumstances to members of another community, it is difficult to see how the court can shy away from its duty of nullifying such action as violation of fundamental right. To suggest that the aggrieved person should exhaust his remedies of appeals and/or revision would mean that the person is denied the fundamental right of having a speedy, effective remedy and the fundamental right and constitutional remedy under Article 32 is rendered a sonnet writ on water. It is not inconceivable that a Judge may commit breach of Articles 14, 15, 17, 19, 20, 21, 22 by his judicial order.

 

It is not uniformity of decisions or even the process of hearing or merely erroneous or mistaken or wrong decisions on constitutional or other legal points that can be said to be violative of fundamental rights. Such challenge must be more solid and meaningful and rest on surer foundations.

 

What may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination. [Stone, C.J. in Snowden v. Hughes9] As Hidayatullah, J. said in his Mirajkar3 dissent:

  1. 122. The power and jurisdiction of this Court [under Article 32] is so narrow that nothing on the merits of a controversy of a civil case can ever come up before it under Article 32. … It is unlikely that this Court will torture cases to fit them into Article 32. It cannot be brought here by pleading breach of fundamental rights. It is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient, a case under Article 32 can be made out. … Where a High Court Judge acts collaterally to cause a breach of fundamental right, I am clear that an approach to this Court is open under Article 32.10

 

It is fruitful to refer to the concurring opinion of Frankfurter, J. in Snowden v. Hughes9:

  1. The Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the courts or the executive agencies of a State.11

 

This passage and the one from Stone, C.J. in the same case quoted supra were quoted by S.R. Das, J. in Budhan Choudhry v. State of Bihar12. But there is another passage in the same paragraph in the judgment of Frankfurter, J. (as Seervai points out p. 390) which is directly relevant:

  1. 30. … And if the highest court of a State should candidly deny to one litigant a rule of law which it concededly would apply to all other litigants in similar situations, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws?13

 

It is submitted that the two passages in the opinion of Frankfurter, J. taken together seem to lay down the correct principle, though that case did not relate to judicial orders as pointed out by Gajendragadkar, C.J. in Mirajkar3.

 

It is noteworthy that a unanimous Constitution Bench in Shivdev Singh v. State of Punjab14 held that the inherent power under Article 226 could be invoked by way of a writ petition to review an order made in an earlier writ petition where the High Court had passed an order to the prejudice of the person filing the fresh writ petition without having heard such person.

 

It is necessary and appropriate at this stage to refer to two other cases which have a bearing on this issue:

 

In Supreme Court Bar Assn. v. Union of India15, the SCBA filed a writ petition under Article 32 seeking a declaration that only the Disciplinary Committee of the Bar Council can impose any punishment on an advocate for professional misconduct and suspend his licence and courts have no such jurisdiction including under Articles 129, 142 or 215. This was a sequel to the Supreme Court in purported exercise of powers under Articles 129 and 142 holding16 an advocate guilty of contempt of court and sentencing him to simple imprisonment for 6 months which sentence was suspended for the time being and further suspending his licence/sanad for 3 years thereby debarring him from practising as an advocate. The Constitution Bench in SCBA15 unanimously held that the Court had no jurisdiction to suspend an advocate’s licence in exercise of powers under Article 129 read with Article 142. This was indeed a case of violation of fundamental right by a judicial order though it was not so contended expressly and the Supreme Court in exercise of its writ jurisdiction granted the relief.

 

In M.S. Ahlawat v. State of Haryana17, the challenge again was by way of a writ petition under Article 32 to an earlier order of the Supreme Court whereunder the petitioner was held guilty of an offence under Section 193 IPC-fabricating false records before the Supreme Court-and convicted and sentenced and he served the sentence. This was based only on the investigation which the Supreme Court had ordered and was without any trial. He was also convicted and sentenced for contempt of court under Article 129 which was not challenged. It was contended that in convicting the petitioner under Section 193 IPC the Court had completely stultified the procedure prescribed under the Code of Criminal Procedure thereby acting contrary to the mandate of Article 21. The Court observed that when a litigant complains of miscarriage of justice by an order of the Court passed without jurisdiction or without following the due procedure and resulting in his incarceration losing valuable liberty for a period with attendant catastrophe descending on his career and life, the Court has no option but to examine the correctness of the contentions. The Court also observed that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. Accordingly the Court unhesitatingly recalled and set aside the order18 made earlier convicting the petitioner under Section 193 IPC, while upholding the conviction and sentence under Article 129.

 

The Court further held that the order setting aside the conviction would not enable the petitioner to claim any compensation or initiate any proceedings in any court arising out of his conviction except to use the same in any proceeding initiated against him departmentally regarding his service. This was on the basis of an affidavit filed by the petitioner. But such affidavits and undertakings or contracts waiving one’s fundamental rights are void and unenforceable. It is submitted that the Court was clearly not right as far as this part of the order is concerned.

 

It is seen that this was a typical case of breach of a person’s fundamental right by a judicial order of the highest court. It was so contended expressly in a writ petition under Article 32 which was allowed. It would appear that in both these cases the Court was not impeded by procedural technicalities. What, therefore, emerges is that the Supreme Court has granted the appropriate relief without expressly acknowledging violation of fundamental rights by judicial orders. This does not seem to be apt or commendable. Yet curiously even thereafter in Hurra case5 the Supreme Court asserted that a judicial order cannot violate fundamental rights.

 

Interestingly and significantly the Supreme Court in Ram Deo Chauhan v. Bani Kanta Das19, expressly recognised that a judicial order may violate fundamental rights. This was a review in a writ petition under Article 32. It was stated,

 

The assumption … that there can be no violation of a person’s human rights by a judgment of this Court is possibly not correct. … The instances of this Court violating the human rights of citizens may be extremely rare but it cannot be said that such a situation can never happen. We can remind ourselves of the majority judgment of the Constitution Bench in ADM, Jabalpur20.21

 

The order of the Governor under Article 161 commuting the death sentence to life imprisonment which was set aside in the earlier writ petition was restored.

 

It is pertinent to refer to Anjan Kumar Banerjee v. State of W.B.22 where on 20-2-2009 a two-Judge Bench referred to a larger Bench the matter whether breach of fundamental rights is possible by courts-judicial order, whether court is included in “State” under Article 12 and whether a writ petition could be entertained to recall earlier orders of the court on the ground that they violated fundamental rights. But quite unfortunately on 9-10-2012 a three-Judge Bench dismissed23 the case. The questions have remained unanswered.

 

In Ashiq Hussain Faktoo v. Union of India24 (decided on 24-9-2014 by a two-Judge Bench) a writ petition under Article 32 was filed against the Supreme Court judgment25 reversing the judgment of acquittal to that of conviction allegedly based on impermissible confession breaching Article 21. It was ordered that the writ petition be converted into a review petition to be heard in open court on the fundamental principles of review as well as the maxim ex debito justitiae. However, a three-Judge Bench in Ashiq Hussain Faktoo v. Union of India26 (decided on 30-8-2016) held that frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts was not enough to extend the frontiers of the ex debito justitiae jurisdiction, that open court hearing of review petitions in terms of Mohd. Arif27 decision was available as of right only in death sentence cases and the petition was dismissed as not maintainable on the basis of Hurra5 decision. It is submitted that this is unexceptionable.

 

As the Almighty does not share His omniscience and infallibility with the judiciary, it would be naive to suggest that judicial function/order can never result in breach of fundamental rights. Laying down such a legal position is merely shying away from the truth and an illustration of an egocentric exercise of power. It cannot be stated as a proposition that the exercise of judicial/quasi-judicial power by any authority cannot at all result in breach of fundamental rights. Judicial power of the State stricto sensu is exercised by courts. However, it is also exercised in some ways and to some extent by the other wings. The Tribunals and even executive authorities exercise that power. Parliament and State Legislatures in the exercise of their privileges-enforcing the privilege and punishing for its breach-exercise a quasi-judicial power. That may also result in breach of fundamental rights which makes the proceeding suffer from not mere procedural irregularity but substantive illegality or unconstitutionality rendering that exercise of power amenable to review and correction in writ jurisdiction. When such is the legal position, it is incomprehensible as to how and why, when the judiciary discharges judicial function there can never be any violation of fundamental rights. When the exercise of quasi-judicial power can result in violation of fundamental rights, there is no reason why exercise of judicial power stricto sensu cannot breach fundamental rights. This is all the more possible in cases of judicial legislation where decisions of the court may often violate rights, including fundamental rights, of persons not before the court. It is immaterial in this context as to which body or authority or wing exercises that power. There cannot be an artificial exclusion of the judiciary on any fragile ground. That a judicial decision cannot affect fundamental rights appears to be mere ipse dixit without any constitutional or jurisprudential support. It would mean that the judiciary while discharging judicial functions is above the Constitution. The superior judiciary too is a creature of the Constitution. It cannot be placed on a high pedestal removed from and above the Constitution and the law.

 

Basu in his Commentary on the Constitution of India (7th Edn., Vol. A/1, pp. 256-65), also points out how the proposition is flawed. Apart from the fact that the exclusion of a judicial decision emasculates the concept of “State action” as embodied in Article 12, it is not supportable either on juristic principles or on the very text of Article 12 itself. The very foundation of the assumption that Article 12 does not extend to courts does not survive after the decision in Rajasthan Electricity Board28.

 

To say that the application of the fundamental rights has a narrower scope against a judicial decision is different from the radical proposition that the Judiciary is excluded from the definition of “State” in Article 12, so that there cannot be any collateral constitutional remedy against a judicial decision. (p. 257)

 

He further says (p. 261) that the courts too are limited by the Constitution’s mandatory provisions and cannot be allowed to override fundamental rights under the shield that they have, within their jurisdiction, the right to make an erroneous decision. A decision contravening fundamental rights is not merely a wrong decision, but one without jurisdiction and a nullity. It cannot be contended that a court has jurisdiction to violate the Constitution-the higher law by or under which all courts are constituted; a constitutionally invalid decision is void for want of jurisdiction.

 

Such cases of violation of fundamental rights by the judiciary may be few and far between and it may be difficult to delineate their contours with certainty and precision. The court would have to examine and give a finding in each case. But as a proposition it may be constitutional blasphemy.

 

The major premise is that the judiciary too (like any other authority) even in rendering a judicial decision may violate fundamental rights. This can be said to be firmly established from the discussion above. The minor premise is-what is the remedy for such violation?

 

Whether a judicial order can violate fundamental rights does not and cannot depend upon what, if any, is the remedy for such violation. The existence of a constitutionally guaranteed fundamental right cannot and does not depend on the technicalities of its enforcement and the availability of a remedy. Remedy, if not readily visible or available, would have to be innovated and the fundamental right enforced.

 

The root principle of law married to justice is ubi jus ibi remedium, as stated in Shiv Shankar Dal Mills v. State of Haryana29, that is, where there is a right there is a remedy. It is not the other way round. Hence violation of a right must necessarily have a remedy. Now, as has been noted, that the judiciary may, in exercise of judicial powers, commit a breach of fundamental rights, such breach cannot go unredressed. Therefore the issue of whether a writ of certiorari will go to a court is really immaterial and need not detain us. That is looking at the problem from the wrong end.

 

In Pinochet case30 the House of Lords set aside its decision (R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte31). So did our Supreme Court in SCBA15 and Ahlawat17. In Hurra5 the Supreme Court held that the decision of the Court may be assailed and set aside. How that is to be done-in what proceedings and in what manner-is altogether different. Strangely and unfortunately the Supreme Court has examined the whole issue from the wrong end, from the point of view of the remedy, whether it can be effectively granted. In so doing the Court missed the cardinal principle that where there is a right and it is infringed there ought to be a remedy.

 

Article 32 guarantees protection and enforcement of fundamental rights and invests the Supreme Court with power to issue appropriate directions, orders or writs for the said purpose including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Under Article 226 the High Courts are invested with the same power for the enforcement of fundamental rights and for any other purpose. It is well settled that in India we do not have to be bogged down by the technicalities of English prerogative writs and the expression “writs in the nature of” has enlarged the jurisdiction and made it more comprehensive. It is equally settled right from 1950 itself that the powers conferred on the Supreme Court under Article 32 are much wider and not confined to issuing prerogative writs only (Rashid Ahmed v. Municipal Board, Kairana32, SCC at p. 227, para 14 : AIR at p. 165). Any construction introducing unnecessary procedural restrictions defeats the very purpose of Articles 32 and 226 (Dwarka Nath v. ITO33, AIR at p. 84-85).

 

In M.C. Mehta v. Union of India (Shriram-Oleum Gas)34, the Constitution Bench unanimously laid down:

  1. 7. … this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. … Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32.35

What is said of the Supreme Court under Article 32 would apply pro tanto to the High Courts under Article 226.

 

To start with the deficiencies of the English prerogative writ of certiorari to curtail or deny protection of the guaranteed right under Article 32 is to put the cart before the horse. In the light of this, and even otherwise, examining whether a writ of certiorari can issue to a court to remedy the infringement of a fundamental right is both unnecessary and inappropriate. Enforcement is not the real test of the existence of a right or its violation.

 

Fundamental rights are guaranteed and any action infringing fundamental rights is void. The right to have the fundamental rights enforced is itself a fundamental right. Article 32 deals with remedies for enforcement of fundamental rights as is clear from its heading. Article 226 is no different. It is trite that the existence of a right is the foundation for invoking the writ jurisdiction. The perceptive remarks of Mathew, J., though extra curial, are illuminating:

 

The realization that Article 226 is concerned with remedies, and not rights, is the beginning of wisdom in constitutional law.36

 

He further states that hence if a person has a right, he would be entitled to enforce that right by a suit on the basis ubi jus ibi remedium even if the remedy by way of a writ is not available. The scope of declaratory actions being wide enough, the relief against breach of fundamental rights would be available.

 

Therefore the relief against violation of fundamental rights by a judicial order, even of the highest court, can be obtained in a regular civil suit in the court of first instance. Such is also the position laid down by the Privy Council in Secy. of State v. Mask & Company37 that even if the jurisdiction of the civil courts is excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. When that was the position prior to the Constitution, then with fundamental rights guaranteed now the case for the courts to intervene would be even stronger. What can be done and secured in a suit in a civil court can also be secured in proceedings under Article 226 before the High Court. The only specialty about Article 32 is that it is itself a fundamental right. All these proceedings under Article 32 or 226 or a civil suit under Section 9 of the Civil Procedure Code are different remedies. The relief may take varied forms and may be moulded to meet the exigencies. Theoretically this appears to be the unassailable position. If there are any practical problems, that is another matter.

 

It is submitted that it would not be necessary to issue a writ of certiorari to quash the offending judicial order which violates fundamental right. It would be enough if there is a declaration to the effect that the order is null and void.

 

As pointed out in Wade and Forsyth, Administrative Law (10th Edn., p. 529) dealing with declaratory orders:

 

A mandatory order is often used as an adjunct to a quashing order. … But either remedy may be used by itself. … If a mandatory order is granted without a quashing order, the necessary implication is that the defective decision is a nullity, for it is only on this assumption that a mandatory order can operate. A simple mandatory order does the work of a quashing order automatically.

 

If this is so in England without a written Constitution and a Bill of Rights and the historical technicalities of prerogative writs, what to say of India-with guaranteed fundamental rights with the right to enforce those fundamental rights itself being a fundamental right that is guaranteed. The Court may make a declaratory order that what is complained of has breached fundamental right(s) and cannot be allowed to remain.

 

It is needless to say that all this is, of course, subject to the finality of judgments/orders. What is necessary is that a challenge on this ground has to be examined and a decision given, it is not that successive or repeated challenges can be raised till one succeeds.

 

It is, therefore, submitted that the postulate that a judicial order cannot at all violate fundamental right(s) and there is no remedy in writ jurisdiction for such violation, if any, is wholly unsupportable. Even when the position has been diluted by the Court granting relief in some cases, the ghost of Mirajkar3 seems to haunt us and its incantation continues to be repeated. Mirajkar3 being overruled and buried in the dustbin of history would serve the law and the nation better. The vindication of fundamental rights against their breach by whomsoever is not a confrontation but it is really the protection of the integrity of the Constitution, a solemn exultation of the Constitution which is the judiciary’s and particularly the Supreme Court’s constitutional obligation.

 

The exercise of the power of judicial review by issue of appropriate writs, especially when it concerns protection and enforcement of fundamental rights has to be robust. It is of utmost importance that, as Chandrachud, J. said, “[in] the last analysis the people for whom the Constitution is meant, should not turn their faces away from it in disillusionment for fear that justice is a will-o’-the wisp.” (State of Rajasthan v. Union of India38.)


*The article has been published with kind permission of SCC Online cited as (2021) 3 SCC J-44

* Advocate. Author, Working of the Constitution : Checks and Balances (1st Edn. 2014, Eastern Book Company) and Revising Author, V.G. Ramachandran’s Law of Writs [7th Edn. 2021 (In Press), Eastern Book Company].

1(1980) 3 SCC 625.

2[1913] A.C. 417, p. 477 (HL).

3Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

4A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.

5Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

6Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

7Id, pp. 877-78, paras 1703-04.

81948 SCC OnLine US SC 59, para 30 : 92 L.Ed 1161 : 334 US 1 (1948).

91944 SCC OnLine US SC 18 : 88 L Ed 497 : 321 US 1 (1944), p. 16.

10Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, p. 34, para 122.

11Snowden v. Hughes, 1944 SCC OnLine US SC 18, para 30 : 88 L Ed 497 : 321 US 1 (1944).

12AIR 1955 SC 191.

13Snowden case, 1944 SCC OnLine US SC 18, para 30.

14AIR 1963 SC 1909.

15(1998) 4 SCC 409.

16Vinay Chandra Mishra, In re, (1995) 2 SCC 584.

17(2000) 1 SCC 278.

18Afzal v. State of Haryana, (1996) 7 SCC 397.

19(2010) 14 SCC 209, p. 224.

20ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

21Ram Deo Chauhan case, (2010) 14 SCC 209, p. 224, paras 50-52.

22(2014) 1 SCC 697.

23Anjan Kumar Banerjee v. State of W.B., WP (C) 49 of 2009, order dated 9-10-2012 (SC).

24(2016) 9 SCC 746.

25CBI v. Ashiq Hussain Faktoo, (2003) 3 SCC 166.

26(2016) 9 SCC 739.

27Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737.

28Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857.

29(1980) 2 SCC 437.

30R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No.2), [2000] 1 A.C. 119 : (1999) 2 WLR 272 (HL).

31[2000] 1 A.C. 61 : (1998) 3 WLR 1456 (HL).

321950 SCR 566 : AIR 1950 SC 163.

33AIR 1966 SC 81.

34(1987) 1 SCC 395.

35Id, pp. 407-08, para 7.

36K.K. Mathew, Democracy, Equality and Freedom, Eastern Book Company, (1978), p. 21, fn 46.

371940 SCC OnLine PC 10 : AIR 1940 PC 105.

38(1977) 3 SCC 592, p. 646, para 134.

Appointments & TransfersNews

Shri Narendra Modi

Prime Minister and also in-charge of: Ministry of Personnel, Public Grievances and Pensions; Department of Atomic Energy; Department of Space; All important policy issues; and All other portfolios not allocated to any Minister

Cabinet Ministers

1.

Shri Raj Nath Singh Minister of Defence

2.

Shri Amit Shah Minister of Home Affairs; and Minister of Cooperation

3.

Shri Nitin Jairam Gadkari Minister of Road Transport and Highways

4.

Smt. Nirmala Sitharaman Minister of Finance; and Minister of Corporate Affairs

5.

Shri Narendra Singh Tomar Minister of Agriculture and Farmers Welfare

6.

Dr. Subrahmanyam Jaishankar Minister of External Affairs

7.

Shri Arjun Munda Minister of Tribal Affairs

8.

Smt. Smriti Zubin Irani Minister of Women and Child Development

9.

Shri Piyush Goyal Minister of Commerce and Industry; Minister of Consumer Affairs, Food and Public Distribution; and Minister of Textiles

10.

Shri Dharmendra Pradhan Minister of Education; and Minister of Skill Development and Entrepreneurship

11.

Shri Pralhad Joshi Minister of Parliamentary Affairs; Minister of Coal; and Minister of Mines

12.

Shri Narayan Tatu Rane Minister of Micro, Small and Medium Enterprises

13.

Shri Sarbananda Sonowal Minister of Ports, Shipping and Waterways; and Minister of AYUSH

14.

Shri Mukhtar Abbas Naqvi Minister of Minority Affairs

15.

Dr. Virendra Kumar Minister of Social Justice and Empowerment

16.

Shri Giriraj Singh Minister of Rural Development; and Minister of Panchayati Raj

17.

Shri Jyotiraditya M. Scindia Minister of Civil Aviation

18.

Shri Ramchandra Prasad Singh Minister of Steel

19.

Shri Ashwini Vaishnaw Minister of Railways;Minister of Communications; and Minister of Electronics and Information Technology

20.

Shri Pashu Pati Kumar Paras Minister of Food Processing Industries

21.

Shri Gajendra Singh Shekhawat Minister of Jal Shakti

22.

Shri Kiren Rijiju Minister of Law and Justice

23.

Shri Raj Kumar Singh Minister of Power; and Minister of New and Renewable Energy

24.

Shri Hardeep Singh Puri Minister of Petroleum and Natural Gas; and Minister of Housing and Urban Affairs

25.

Shri Mansukh Mandaviya Minister of Health and Family Welfare; and Minister of Chemicals and Fertilizers

26.

Shri Bhupender Yadav Minister of Environment, Forest and Climate Change; and Minister of Labour and Employment

27.

Dr. Mahendra Nath Pandey Minister of Heavy Industries

28.

Shri Parshottam Rupala Minister of Fisheries, Animal Husbandry and Dairying

29.

Shri G. Kishan Reddy Minister of Culture;Minister of Tourism; and Minister of Development of North Eastern Region

30.

Shri Anurag Singh Thakur Minister of Information and Broadcasting; and Minister of Youth Affairs and Sports

Ministers of State (Independent Charge)

1.

Rao Inderjit Singh

Minister of State (Independent Charge) of the Ministry of Statistics and Programme Implementation;Minister of State (Independent Charge) of the Ministry of Planning; and Minister of State in the Ministry of Corporate Affairs

2.

Dr. Jitendra Singh

Minister of State (Independent Charge) of the Ministry of Science and Technology;Minister of State (Independent Charge) of the Ministry of Earth Sciences; Minister of State in the Prime Minister’s Office; Minister of State in the Ministry of Personnel, Public Grievances and Pensions; Minister of State in the Department of Atomic Energy; and Minister of State in the Department of Space

Ministers of State

1.

Shri Shripad Yesso Naik Minister of State in the Ministry of Ports, Shipping and Waterways; and Minister of State in the Ministry of Tourism

2.

Shri Faggansingh Kulaste Minister of State in the Ministry of Steel; and Minister of State in the Ministry of Rural Development

3.

Shri Prahalad Singh Patel Minister of State in the Ministry of Jal Shakti; and Minister of State in the Ministry of Food Processing Industries

4.

Shri Ashwini Kumar Choubey Minister of State in the Ministry of Consumer Affairs, Food and Public Distribution; and Minister of State in the Ministry of Environment, Forest and Climate Change

5.

Shri Arjun Ram Meghwal Minister of State in the Ministry of Parliamentary Affairs; and Minister of State in the Ministry of Culture

6.

General (Retd.) V. K. Singh Minister of State in the Ministry of Road Transport and Highways; and Minister of State in the Ministry of Civil Aviation

7.

Shri Krishan Pal Minister of State in the Ministry of Power; and Minister of State in the Ministry of Heavy Industries

8.

Shri Danve Raosaheb Dadarao Minister of State in the Ministry of Railways;Minister of State in the Ministry of Coal; and Minister of State in the Ministry of Mines

9.

Shri Ramdas Athawale Minister of State in the Ministry of Social Justice and Empowerment.

10.

Sadhvi Niranjan Jyoti Minister of State in the Ministry of Consumer Affairs, Food and Public Distribution; and Minister of State in the Ministry of Rural Development

11.

Dr. Sanjeev Kumar Balyan Minister of State in the Ministry of Fisheries, Animal Husbandry and Dairying

12.

Shri Nityanand Rai Minister of State in the Ministry of Home Affairs

13.

Shri Pankaj Chaowdhary Minister of State in the Ministry of Finance

14.

Smt. Anupriya Singh Patel Minister of State in the Ministry of Commerce and Industry

15.

Prof. S. P. Singh Baghel Minister of State in the Ministry of Law and Justice

16.

Shri Rajeev Chandrasekhar Minister of State in the Ministry of Skill Development and Entrepreneurship; and Minister of State in the Ministry of Electronics and Information Technology

17.

Sushri Shobha Karandlaje Minister of State in the Ministry of Agriculture and Farmers Welfare

18.

Shri Bhanu Pratap Singh Verma Minister of State in the Ministry of Micro, Small and Medium Enterprises

19.

Smt. Darshana Vikram Jardosh Minister of State in the Ministry of Textiles; and Minister of State in the Ministry of Railways

20.

Shri V. Muraleedharan Minister of State in the Ministry of External Affairs; and Minister of State in the Ministry of Parliamentary Affairs

21.

Smt. Meenakashi Lekhi Minister of State in the Ministry of External Affairs; and Minister of State in the Ministry of Culture

22.

Shri Som Parkash Minister of State in the Ministry of Commerce and Industry

23.

Smt. Renuka Singh Saruta Minister of State in the Ministry of Tribal Affairs

24.

Shri Rameswar Teli Minister of State in the Ministry of Petroleum and Natural Gas; and Minister of State in the Ministry of Labour and Employment

25.

Shri Kailash Choudhary Minister of State in the Ministry of Agriculture and Farmers Welfare

26.

Smt. Annpurna Devi Minister of State in the Ministry of Education

27.

Shri A. Narayanaswamy Minister of State in the Ministry of Social Justice and Empowerment

28.

Shri Kaushal Kishore Minister of State in the Ministry of Housing and Urban Affairs

29.

Shri Ajay Bhatt Minister of State in the Ministry of Defence; and Minister of State in the Ministry of Tourism

30.

Shri B. L. Verma Minister of State in the Ministry of Development of North Eastern Region; and Minister of State in the Ministry of Cooperation

31.

Shri Ajay Kumar Minister of State in the Ministry of Home Affairs

32.

Shri Devusinh Chauhan Minister of State in the Ministry of Communications

33.

Shri Bhagwanth Khuba Minister of State in the Ministry of New and Renewable Energy; and Minister of State in the Ministry of Chemicals and Fertilizers

34.

Shri Kapil Moreshwar Patil Minister of State in the Ministry of Panchayati Raj

35.

Sushri Pratima Bhoumik Minister of State in the Ministry of Social Justice and Empowerment

36.

Dr. Subhas Sarkar Minister of State in the Ministry of Education

37.

Dr. Bhagwat Kishanrao Karad Minister of State in the Ministry of Finance

38.

Dr. Rajkumar Ranjan Singh Minister of State in the Ministry of External Affairs; and Minister of State in the Ministry of Education

39.

Dr. Bharati Pravin Pawar Minister of State in the Ministry of Health and Family Welfare

40.

Shri Bishweswar Tudu Minister of State in the Ministry of Tribal Affairs; and Minister of State in the Ministry of Jal Shakti

41.

Shri Shantanu Thakur Minister of State in the Ministry of Ports, Shipping and Waterways

42.

Dr. Munjapara Mahendrabhai Minister of State in the Ministry of Women and Child Development; and Minister of State in the Ministry of AYUSH

43.

Shri John Barla Minister of State in the Ministry of Minority Affairs

44.

Dr. L. Murugan Minister of State in the Ministry of Fisheries, Animal Husbandry and Dairying; and Minister of State in the Ministry of Information and Broadcasting

45.

Shri Nisith Pramanik Minister of State in the Ministry of Home Affairs; and Minister of State in the Ministry of Youth Affairs and Sports
Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed that,

In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

Case BriefsHigh Courts

Calcutta High Court: Full Bench of Rajesh Bindal, C.J.(A), I.P. Mukerji, Harish Tandon, Soumen Sen, Subrata Talukdar, JJ., on 18-06-2021 heard a series of petitions which dealt with the issue of the number of persons been made to run away from their houses to save their lives and are not being allowed to come back. The Court had given liberty to send complaints to the official e-mail ID of the West Bengal State Legal Services Authority and reinstatement had to be done e in the presence of a Committee of the officers nominated by the National Human Rights Commission and the West Bengal State Human Rights Commission and the Member Secretary of the West Bengal State Legal Services Authority.

The Court opined that in a case like where the allegation is that life and property of the residents of the State is in danger on account of alleged post poll violence, the State cannot be allowed to proceed in the manner it likes. The complaints required immediate action. The Court found that such an action was missing and it was the duty of the State to maintain law and order in the State and inspire confidence in the residents of the State.  The Court further added that, “State from the very beginning had been denying everything but the facts as having been placed on record by the petitioners and also as is evident little bit from the report dated June 3, 2021, filed by the Member Secretary of the West Bengal State Legal Services Authority, are different.”

The Court held that keeping in view the fact that there was infrastructure available with the NHRC, directed the Chairperson to constitute a Committee of which the Member Secretary of State Legal Services Authority shall be a member, to examine all the cases, the complaints of which have already been received by the Commission or which may be received. The Matter was adjourned to 30-06-2021.

On 21-06-2021 the Bench dismissed all the petitions which were filed by the State for recalling/modifying the order dated 18-06-2021.

It was contended that the State was not given any opportunity to place complete facts before the Court. In fact, the State had taken appropriate action. Counsel for the non-applicants had raised serious objections to the prayers made in the applications. Arguments raised are that considering the conduct of the State, ever since this Court had taken cognizance of the matter, this Court was constrained to pass the order directing the National Human Rights Commission along with the representatives from the State Human Rights Commission and the West Bengal State Legal Services Authority to go into the various complaints filed by the different persons.

The Court found that no case is made out for recalling, modification or stay of the order passed by this Court on 18-06-2021. The Court added that the way the State was proceeding in the matter which required immediate action, did not inspire confidence. Whatever information the State now wants to produce with reference to the complaints, may be placed before the National Human Rights Commission, which is to examine all the complaints along with the information supplied by the State and submit a report before this Court.

On 21-06-2021 Chairperson, NHRC constituted a Committee to be headed by Mr Rajiv Jain, Member, NHRC to enquire into complaints of post-poll violence in West Bengal.

The Committee is as under:

  1. Shri Rajiv Jain, Member, NHRC, head of the Committee.
  2. Shri Atif Rasheed, Vice Chairperson, National Commission for Minorities.
  3. Smt. (Dr.) Rajulben L. Desai, Member, National Commission for Women.
  4. Shri Santosh Mehra, Director General (Investigation), NHRC.
  5. Shri Pradip Kumar Panja, Registrar, West Bengal State Human Rights Commission.
  6. Shri Raju Mukherjee, Member Secretary, West Bengal State Legal Services Authority.
  7. Smt. Manzil Saini, DIG (Investigation), NHRC.

As per the directions of the High Court:-

a) This Committee shall examine all cases of post-poll violence in West Bengal, complaints about which have already been received in the National Human Rights Commission or which may be received.

b) The Committee shall also examine the complaints which have been received by the West Bengal State Legal Services Authority and also further complaints that may be received by the Legal Services Authority.

c) The cases shall be examined, including by visiting the affected areas and shall submit a comprehensive report to the High Court of Calcutta about the present situation and also steps to be taken to ensure confidence of the people that they can peacefully live in their houses and also carry on their occupation or business to earn their livelihood.

d) The Committee shall also point out the persons, prima-facie, responsible for crime and the officers who maintained calculated silence on the issue.

[Anindya Sundar Das v. Union of India, WPA(P) 142 of 2021, decided on 18-06-2021 & 21-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: N. Sanjay Gowda, J., allowed the petition and quashed the demand note.

The facts of the case are such that the petitioner is supplied electricity by the licensee i.e. Hubli Electricity Supply Company Limited i.e. ‘HESCOM’. Apart from this, it is also supplying energy from the energy exchange every month which is called as purchase of electricity from Open Access Source. The petitioner is liable to pay tax on electricity consumed by it. A demand to pay a sum of Rs. 94, 47, 534 being a demand for payment was issued by HESCOM. The grievance of the petitioner is regarding whether the electricity tax which is to be paid should be levied on the price at which it purchases, be it from the licensee or from the Open Access Source. Aggrieved by the demand note, instant petition under Article 226 and 227 of the Constitution of India was filed on grounds of it being without jurisdiction and thus unconstitutional.

Counsel for the petitioner submitted that the price paid for purchase of electricity through Open Access Source is different than the price paid by it for the electricity sold to it by the licensee HESCOM.

Counsel for the respondents submitted that irrespective of source of electricity, every consumer is liable to pay tax on the electricity consumed within the State and since, admittedly, petitioner had consumed the electricity within the State of Karnataka, it was bound to pay electricity tax on the rates at which electricity has been supplied by HESCOM.

The Court observed that The Karnataka Electricity (Taxation n Consumption or Sale) Act, 1959 i.e ‘The Act’ was enacted to provide for levy of tax on consumption of electricity energy in the State of Karnataka in the year 1959 for sale of electricity energy in the State of Karnataka.

The intent of Section 3 of The Act is clear that whenever electricity is consumed by a consumer within the State of Karnataka, the consumer is bound to pay electricity tax on that on ad valorem basis at the rate of 6% on the charges payable on the electricity sold or consumed. The deliberate use of the expression “charges payable on electricity sold to or consumed by any consumers” would indicate that the charges for the electricity sold and for the electricity consumed could be different. Section 3 sub section 2 makes it clear that the source of electricity consumed by the consumers would be the yardstick for determination of the electricity charges on the basis of which an ad valorem rate have to be calculated.

Further, it was observed that as per Section 4 (1)(a), licensee is required to collect and pay to the State Government the electricity tax payable under the Act on the electricity charges included in the bill issued by him to the consumers. Thus, it is applicable in respect of electricity sold by the license.

Section 4 (1)(b) clearly states that the licensee shall collect and pay to the State Government the electricity tax payable on the units of electricity supplied to consumer by a non licensee through a license. Thus, a clear distinction is made on the manner in which the tax is paid.

The Court concluded that it is to be borne in mind that the person who sells the electricity would necessarily pay the wheeling and access charges to the licensee and the seller of the electricity would be basically using the infrastructure and paying for the distribution. The licensee, therefore, would have no preferential right.

The Court thus held “the demand made by HESCOM by computing the tax at the rate at which it was selling electricity to its consumers cannot be the basis for levying and collecting the electricity tax. HESCOM shall now calculate the electricity tax at the rate at which the petitioner had purchased the electricity from Open Access Source and issued a revised demand within a period of two weeks from the date of receipt of a certified copy of this order”

In view of the above, petition was allowed.[Southern Ferro Ltd. v. State of Karnataka, W.P. No. 105054/2017, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Advocates before the Court:

Counsel for the Petitioner: Mr Gurudas Kannur (Senior Counsel) and Mr Narayan G. Rasalkar (Adv.)

Counsel for the respondent: Ms K. Vidyawati (Add. Adv. Gen), Mr Vinayak S. Kulkarni (for R1, 2 and 5) and Mr B. S. Kamate (Adv.)

Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., addressed the instant contempt petition. The Court while expressing concern over State inaction, stated, “The inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms.”

The present contempt petition was filed for non-compliance of order passed in W.P. No. 806 of 2013 on 18-01-2013. The facts of the case were that the petitioner who was a daily wage cook, employed in the Government Post-Matric Scheduled Caste Boys Hostel filed a petition seeking direction to the respondents, that regular pay-scale be granted to him in the light of circular dated 17-03-1978. It was submitted that the aforesaid circular gave daily wage employees engaged in the Tribal Welfare Department, benefit which had been given by the order passed in Dhanu Bai v. State of M.P., (W.A. No. 85/2011). The Court had ordered the State to consider if the order of Dhanu Bai case would squarely apply on the petitioner; and the State was given liberty to take into consideration any subsequent circular issued by the State Government in respect of grant of wages to daily wage.

The Court observed that, undue liberty that had been granted from time to time and again by this Court for the compliance of its orders, was being taken for granted. The abject disdain of the State and its functionaries to the orders passed by this Court was only on account of the leniency shown by this Court. Time and again, looking at the work load of the State and its functionaries, this Court has been loath to proceed against the guilty in contempt. This has emboldened them repeatedly and they put the orders passed by this Court in the back-burn. It had taken seven years to the State to come out with a pathetic response. The Court said,

The power that is given to the State and its functionaries are not without concomitant responsibility. Rudyard Kipling, a famous author whose association with the State is legendary on account of his work ” The Jungle Book”, has observed “power without responsibility – the prerogative of the ****** throughout the ages. Time and again, the State has, by its violation or its non-compliance to the orders passed by this Court; shown that it is an institution that prefers to have powers without responsibility.

 Considering that the respondents were aware with the order passed by this Court at least from 03-04-2013, if not before that, the Court remarked that, the inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms. It was further stated by the Court, “The State through its inactivity is partly responsible for the flood of writ petition before this Court and after the orders passed by this Court, it leads to filing of the contempt petition because the State and its instrumentalities do not comply with the order passed by this Court within the time period given in the order.”

In the light of above, the instant petition was disposed of with the direction to the respondent to take a decision within a period of two weeks from passing of this order. [Sona Bai v. Principal Secretary Tribal Welfare Department, Mantralaya, CONC-1455-2014, decided on 13-01-2021]

Case BriefsHigh Courts

Punjab and Haryana High Court: Anil Kshetrapal, J., addressed the validity of the order granting extension in the service to respondent 6 on the post of General Secretary Haryana in Indian Red Cross Society for a period more than 3 years. The Court stated,

In absence of enabling powers in the Service Rules, the President had no inherent power to travel beyond the Service Rules. Once, the Service Rules have been framed, notified and adopted then the State or its instrumentalities are required to follow the same. The Rules are framed/notified in order to regulate. If the authorities at the highest level do not adhere to the Rules, then the Court is left with no choice but to intervene.”

 The President of the society (Haryana Branch) on 02-12-2013 appointed respondent 6 as General Secretary on a tenure post of three years, the appointment had been made under Rule G(b) Chapter III of the proposed IRCS-Uniform Rules, State/UT Branches Male/Circulated by National Headquarter, New Delhi under Section 5 of the Indian Red Cross Society Act, 1920. Thereafter, vide Notification dated 15-12-2017, the Managing Body of the Red Cross Society with the previous approval of the President of the Society notified Rules known as “Indian Red Cross Society Branch Committee Rules, 2017”. The petitioner completed his tenure of three years on 04-12-2019 and on 02-06-2020, an order had been issued, extending the tenure of the petitioner till his superannuation i.e. 30-04-2022. The petitioner contended that the authorities had no power to extend the tenure.

The Court observed, as per Rule 6, the President was the appointing authority for the post of General Secretary. Rule 9, provided that all direct recruitment shall be made through advertisement in the newspaper. Rule 10 provided that the post of General Secretary can be filled up from two sources i.e. either by direct recruitment or by promotion. However, the appointment shall be subject to ratification by the Managing Committee of Indian Red Cross Society, Haryana. The tenure of respondent 6 came to an end on 04-12-2019. At that stage, the competent authority had two options; either to appoint through direct recruitment and therefore constitute a selection committee or decide to fill up the post by promotion. The authority did not choose to go by what was provided in the Rules. Rather, the tenure of the respondent was extended arbitrarily and the same was not even ratified by the managing committee.

Therefore, it was held that, extension given in the service was beyond the scope of the Staff Rules, 2017 and was liable to be set aside. [Sumer Singh v. Indian Red Cross Society,  2021 SCC OnLine P&H 59, decided on 06-01-2021]

Case BriefsHigh Courts

Kerala High Court: P.V. Asha, J. allowed the writ petition questioning status of IDBI Bank as “State” under Article 12 of the Constitution and further stated that the acts of public sector undertakings arising out of contractual transactions between the parties will not fall under the term “public duty” to attract the Court’s jurisdiction.

Brief facts of the case are such that the petitioner challenged the demand of Rs 11,00,000 as a processing fee of a credit facility and retaining of original property documents as security against such facility as arbitrary and illegal, hence, being violative of his fundamental rights. The petitioner, while relying on R.D.Shetty v. International Airport Authority, (1979) 3 SCC 489, contended that as per the order passed by the RBI, IDBI would be treated as a private bank only for regulatory purposes and it would continue to be a public sector bank for all other purposes. It was further argued that IDBI is controlled by the Central Government and it is always under the watch of Central Vigilance Commission.

Counsel for the respondent challenged the maintainability of Petition stating that respondent bank does not perform any public or statutory or sovereign function and it does not enjoy any monopoly in the banking. It was argued that its function is confined to commercial activities and the Central Government does not have any deep or pervasive control over its functioning.

The court dismissed the petition, holding that providing of credit facility or loan on the strength of title deeds given against security cannot be said to be done in discharge of any public function. Hence, even when the bank is a public sector bank, demand for a processing fee or withholding of title deeds towards security cannot be said to be one involving any element of public duty. Therefore, IDBI is not amenable to writ jurisdiction. [Unimoni Financial Services Ltd. v. IDBI Bank Ltd., 2020 SCC OnLine Ker 7347, decided on 16-12-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Naheed Ara Moonis and Vivek Varma, JJ., reiterated the law laid down by the Supreme Court that,

the private financial institutions, carrying of business or commercial activity, may be performing public duties, but cannot be considered to be covered under the definition of “State” under Article 12 of the Constitution of India.

Respondent’s Counsel, Abhinav Gaur submitted that the respondent bank raised a preliminary objection that the instant petition is not maintainable as HDFC Bank is a private bank not covered within the ambit and meaning of ‘State’ under Article 12 of the Constitution of India.

It was stated that the petitioner had taken a commercial loan from the private bank and defaulted in payment of instalments.

Supreme Court’ decision in Federal Bank v. Sagar Thomas, (2003) 10 SCC 733 was referred, wherein it was held that:

“28. …As indicated earlier, share capital of the appellant bank is not held at all by the Government nor is any financial assistance provided by the State, nothing to say which may meet almost the entire since the appellant bank does not enjoy any monopoly status nor can it be said to be an institution having State protection. So far as control over the affairs of the appellant bank is concerned, they are managed by the Board of Directors elected by its shareholders. No governmental agency or officer is connected with the affairs of the appellant bank nor is anyone of them a member of the Board of Directors. In the normal functioning of the private banking company there is no participation or interference of the State or its authorities. The statutes have been framed regulating the financial and commercial activities so that fiscal equilibrium may be kept maintained and not get disturbed by the malfunctioning of such companies or institutions involved in the business of banking. These are regulatory measures for the purposes of maintaining a healthy economic atmosphere in the country.”

Private Financial Institutions

Bench stated that following the law laid down by the Supreme Court in the above decision that the private financial institutions, carrying of business or commercial activity, may be performing public duties, but cannot be considered to be covered under the definition of “State” under Article 12 of the Constitution of India, the writ petition against such entity is not maintainable before the High Court.

Therefore, in view of the above-stated settled principle of law, the instant petition was dismissed. [Kailashi Devi v. Branch Manager, 2020 SCC OnLine All 1415, decided on 26-11-2020]


Advocates who appeared in the matter:

Counsel for Petitioner: Manoj Kumar Mishra

Counsel for the respondent: Abhinav Gaur

Op EdsOP. ED.

1. That the era of modernisation has brought about a radical change in the manner of functioning of not only private undertakings but also the Government. The functions of modern Government extend much beyond the sovereign functions such as legislating, and now the Government is a key functionary in the commercial arena as well, primarily by delegating infrastructure development to private entities by floating tenders.

2. The Government has now started delegating the task of infrastructure development to private entities which work directly under the supervision of the Government Departments concerned or any instrumentality of State, which now forms an essential part of the trade and commerce activities carried out by the Government. The power of the Government to enter into contracts has been recognised under Article 299 of the Constitution, which states as under:

299. Contracts.– (1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.

(2) Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.”

3. The above raises an important question as to whether the Government should be subjected to the same rigours as other individuals or does it have any special rights over and above the rights available with ordinary contracting parties under the Contract Act, 1872?

4. The State authorities which are then tasked with the responsibility of infrastructure development should be deemed to act reasonably even though they are acting in a private law capacity. The doctrine of arbitrariness should not only extend to testing the effect and enforcement of legislations but also to provisions of contracts, particularly, contracts whose enforcement is widespread.

5. It would also be relevant to point out here that most contracts entered into by government agencies are standard form contracts (typically referred to as General Conditions of Contract) which are completely non-negotiable, and contractors are required to sign the dotted line. Any subject-matter which is not covered under the provisions of the General Conditions of Contract, are then agreed upon in the form of an addendum typically referred to as the Additional Conditions of Contract or Special Conditions of Contract.

6. In this backdrop, the Supreme Court has set aside the arbitrary and one-sided provisions in several contracts, particularly Builder-Buyer Agreements. However, the contracts which are entered into by governmental agencies perhaps stand at a higher pedestal than those of private builders inasmuch as governmental contracts do not withstand the same level of scrutiny from our judiciary. Thus, for the purposes of this article, I would restrict the discussion to the following clauses which are commonly used in government infrastructure contracts:

  1. Escalation clauses
  2. Variation clauses vis-à-vis claims for loss of profit
  3. Extension of time and recovery clauses
  4. Dispute resolution clauses

Escalation Clause

7. In contracts involving large quantum of work, price escalation clauses are introduced to prevent increase of price during the fixed course of execution of the work entrusted to the contractor, on the ground that the price of the material or equipment being utilised has increased. In ordinary course, the duration of the contract increases much beyond the initial estimated duration (referred to as the ‘stipulated period of completion’) and often by several years. In these circumstances, where a tendered work is a fixed-price and fixed-time contract, the contractors cannot be bound to execute the work at the initial cost over a period which has increased multi-fold. The Supreme Court in Tarapore & Co. v. State of M. P.[1] has observed that “escalation is a normal incidence arising out of gap of time in this inflationary age”. The Court  further went on to hold that escalated rates could be awarded in arbitration even in the absence of any provision for escalation in the contract.

8. Further, the intent behind incorporating escalation clauses in infrastructure contracts is succinctly explained by the Delhi High Court in Deconar Services Pvt. Ltd. v. NTPC Ltd.[2], as under:

9. …   A fixed price contract would be a fixed price contract only during the original period and surely it is an absurdity to suggest that irrespective of the extension of the contract well beyond the original stipulated date of completion and more so when the same is on account of breaches/ delays by the objector, yet in such a case it can be contended that still no escalation would be paid…

9. The difficulty which arises in pressing these claims is that all the pronouncements give liberty to the arbitrator to determine a reasonable measure of compensation while deciding the claims, so even if the escalated amount of the claims are calculated as per the formula provided in the agreement between the parties, the Tribunal is free to reject the calculation and decide any amount which it considers to be reasonable. This again is an exception to the series of judgments which state that “The arbitrator, being the prisoner of the contract, is bound to remain within the four corners of the contract[3]. On the other hand, if there is no escalation clause (and therefore, no formula for calculation), the Arbitral Tribunal is free to determine the amount to be paid towards escalation by any means which are ‘reasonable’. This results in a precarious position where the Arbitral Tribunal has the discretion to apply any method that it deems fit coupled with the varying levels of discretion that are appended to the term ‘reasonable’.

Variation clauses vis-à-vis claims for loss of profit

10. Variation clauses are inserted into the agreement for a prudent reason and fixing the price of the contract up to a reasonable limit. When the project which involves the use of large quantities of material and equipment, there might arise a situation that the quantity of some material differs from what had been mentioned in the Bill of Quantities/Schedule of Quantities. Thus, it is prudent to introduce and keep a variation clause in the agreement to deal with the exigent situation of difference in quantities which are actually utilised for execution of the project as compared to what was estimated in the Bill of Quantities. For ease of reference, Clause 12 of the General Conditions of Contract[4], published by the Central Public Works Department is being reproduced hereunder:

The Engineer-in-Charge shall have the power (i) to make alteration in, omissions from, additions to, or substitutions for the original specifications, drawings, designs and instructions that may appear to him to be necessary or advisable during the progress of the work, and (ii) to omit a part of the works in case of non-availability of a portion of the site or for any other reasons and the contractor shall be bound to carry out the works in accordance with any instructions given to him in writing signed by the Engineer-in-Charge and such alterations, omissions, additions or substitutions shall form part of the contract as if originally provided therein and any altered, additional or substituted work which the contractor may be directed to do in the manner specified above as part of the works, shall be carried out by the contractor on the same conditions in all respects including price on which he agreed to do the main work except as hereafter provided.

(emphasis supplied)

11. Per contra, in the event that the work is substantially curtailed from what had been originally awarded, the contractors are at liberty to raise a claim under the head ‘loss of profit’. This head of claim finds its inception in the judgment of the Supreme Court in T. Brij Paul Singh v. State of Gujarat[5] which has been reiterated several times and the judgment in Dwaraka Das v. State of M. P.[6] concisely elucidates the subject claim as under:

9…. This Court in A. T. Brij Paul Singh v. State of Gujarat[7] while interpreting the provisions of Section 73 of the Contract  Act, 1872 has held that damages can be claimed by a contractor where the Government is proved to have committed breach by improperly rescinding the contract and for estimating the amount of damages, the Court should make a broad evaluation instead of going into minute details. It was specifically held that where in the works contract, the party entrusting the work committed breach of contract, the contractor is entitled to claim the damages for loss of profit which he expected to earn by undertaking the works contract. Claim of expected profits is legally admissible on proof of the breach of contract by the erring party.

12. The question which frequently arises for consideration before the arbitrators is balancing the rights of the parties where one pleads loss of profit on account of curtailment of the scope of works after awarding the tender and the other takes a defence stating that the contract allows them to modify and amend the scope of work up to a certain extent while relying on the variation/deviation clause. The intent behind the variation/deviation provisions is to meet the exigencies which arise on account of some peculiar situations at the project work site and definitely not to cover up the mismanagement or lack of planning/decision-making on the part of the governmental agencies.

13. These clauses are being misused as a defence to contest claims for loss of profit and conceal the mismanagement on the part of the government agency, which is not considered by Arbitral Tribunals. The Arbitral Tribunals ought to consider the intent behind the provisions rather than mechanically applying them in the manner as is being contended by the government agency.

Extension of time and recovery clauses

14. The third area of friction which really comes up in infrastructural arbitrations is the fact of extension of time, which later becomes the basis for imposing a penalty on the contractors as well as making deductions from the sums due to the contractors as being liquidated damages.

15. The importance of the extension of time provisions in infrastructure contracts is based on the termination of contract (particularly, by efflux of time). Since, infrastructure projects contain a stipulated period for completion of the works, failing which penalty is imposed on the contractor by the State instrumentality. However, there are certain exceptions to extending the time without imposition of any penalty which stem from there being circumstances beyond the control of the parties due to which the project work could not be executed e.g. the nationwide lockdown. The same applies vice versa as well i.e. in the event, time for completion of the works is extended without imposition of any penalty, it is presumed that there was no breach of contract or non-performance on the part of the contractor. The High Court of Delhi in N. Kharbanda & Son v. Delhi Development Authority[8] has observed as under:

9….However, it is not in dispute that the time period of the contract was extended by the respondent without any penalties on the petitioner and such an occasion would only arise if the fault was not attributable to the petitioner…

16. However, one contentious issue which often arise for consideration is what is the consequence of non-extension of the time period for completion of the project? Ordinarily, the contract would be deemed to have been terminated by efflux of time, but if the parties continue to perform their obligations without any extension, the same should tantamount to it becoming a concluded contract in terms of Section 8 of the Contract Act, 1872.

17. What is even more intriguing in these matters is that the governmental agency in these contracts has conferred upon itself the power to impose penalty upon the contractor. Most government contracts confer upon a senior officer of its agency the power to determine whether the contractor is guilty of breach of contract and the power to impose penalty after determination of guilt. Even though, this issue has come before the Courts several times over, the Courts have not considered the factum that ultimately the official making the so-called analysis of guilt or innocence is an employee on the rolls of that very agency which would later become a party to that lis. In my opinion, the same falls foul of fundamental principles of natural justice, particularly, nemo judex in sua causa (no person shall be a Judge in his/her own cause). The Courts intervene to a limited extent by checking whether the contractor was given an opportunity to present its case before the appointed official.

18. Further, the same bears similarity to the provision contained in Article 371-D(5) of the Constitution, which was struck down by a Constitution Bench of the Supreme Court in Sambamurthy v. State of Andhra Pradesh [9] as being violative of the rule of law which is a part of the basic structure of the Constitution. It can be said that the powers conferred upon the official of the government agency to impose penalty should also be ultra vires as the agency itself, as a party to the lis, is then deciding the extent of breach by the other side and is empowered to effect a recovery without any adjudication whatsoever. Ordinarily, the agency ought to initiate a claim/counter-claim before the Arbitral Tribunal or the Court to decide the breach of contract and damages, rather than equipping its own self to pass a decision in a matter where it has economic interest. The said position of law was reiterated by the Supreme Court in Gangotri Enterprises Ltd. v. Union of India[10] where it was held that until the demand of the Government was crystallised or adjudicated upon, the Government cannot withhold the money of the contractor. However, in a recent decision in State of Gujarat   v. Amber Builders[11], the decision in Gangotri Enterprises has been declared per incuriam, but it has been reiterated that any recovery effected by the Government is subject to further adjudication by the Arbitral Tribunal, which would independently decide the merits of imposition of the financial penalty.

19. In ordinary commercial transactions, it has become trite law that one-sided or arbitrary provisions in agreements are struck down if they favour one-party or constitute an unfair trade practice, but it seems that perhaps because the Government is deemed to act in a reasonable and rational manner, that contracts entered into by governmental agencies do not bear similar scrutiny.

Dispute resolution clauses

20. Most contracts now contain a dispute resolution clause, whereby the parties are bound to refer any disputes arising out of the agreements, to arbitration. The primary reason for introduction of such clauses was the delay which comes about in the regular adjudicatory process before the Courts in India.

21. Government contracts in particular, contain a dispute resolution clause, which is not only limited to arbitration, but prescribes several pre-requisite measures to be adopted before a request for appointment of an arbitrator can be made before the appointing authority i.e. persona designata, who again is an official of the governmental agency itself. Most Government contracts provide for a proceeding before some senior officials akin to mediation of the disputes, and more often than not, such mediation fails simply because the presiding officer is an official of the government agency itself.

22. The Courts also refuse to entertain petitions for appointment of arbitrators in the event the party approaches the Court, primarily on the ground that the ‘mandatory pre-requisite’ conditions imposed by the Dispute Resolution Clause have not been complied with. This leaves aside all scope for claiming urgent relief against governmental agencies in infrastructure contracts[12].

23. The Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd.[13] has held that a person who has an interest in the outcome or decision of the disputes must not have the power to appoint a sole arbitrator. In my opinion, the persona designata, who is mostly a senior employee of the same government agency would have an interest, albeit indirect, in the outcome of the dispute. To my utter dismay, even the latest edition of the General Conditions of Contract as formulated by the Central Public Works Department does not reflect this changed position of law and continues to have its own official as the persona designata.

24. The second problem which arises while complying with the myriad pre-requisites in these long-drawn arbitration clauses is the concept of delay in appointment of arbitrators. In certain situations, the persona designata has delayed the appointment of arbitrators so that the formalities for imposition of penalty can be completed by the agency and the Tribunal does not stay the imposition of the penalty under Section 17 of the Arbitration and Conciliation Act, 1996[14]. In certain situations, the persona designata, calls for the list of claims proposed to be raised by the contractor, and chooses to refer only a few of them rather than all claims, by virtue of which he has effectively usurped the powers of the Arbitral Tribunal and decided the claim on his own.[15]

Conclusion

25. What constitutes a major hitch for the parties presently, is the narrow scope of intervention by Courts in the arbitral process as well as in the awards. Particularly, the recent judgment of the Supreme Court in SsangYong Engineering & Construction Company Ltd. v. National Highways Authority of India[16] which has crystallised and narrowed down the scope of interference under Section 34 in light of the amendments made to the Act in 2015.

26. In view of all of the foregoing, though it can be said that the Courts have exercised their judicial powers to balance the equities between the parties, much is left to be desired in the judicial scrutiny of governmental contracts. Even though, the Government is obligated to act in a fair, non-arbitrary and reasonable manner even while acting in a private law capacity, the same remains to be mere sermons and directives in the law reports. Government contracts should not be protected from judicial scrutiny, particularly, when the Constituent Assembly chose to not grant any special protection or status to the contracts entered into by the Government under the Constitution. Moreover, now that the Supreme Court has propounded the doctrine of arbitrariness to test the validity of legislations[17], it is the appropriate time to apply the same to private law and test the validity of contractual provisions.

27. Therefore, it is optimal time that the judicial scrutiny of governmental contracts is done at par with private commercial contracts and the conduct of the Government is analysed objectively to determine the breach of contract and consequential damages.


*Advocate

[1] (1994) 3 SCC 521

[2] 2009 SCC OnLine Del 4108

[3] Republic Construction Co. v. Delhi Development Authority, 2009 SCC OnLine Del 1902

[4]Available at https://cpwd.gov.in/Publication/GCC_Constructions_works_2020.pdf, last accessed on 15.06.2020

[5] (1984) 4 SCC 59

[6] (1999) 3 SCC 500

[7] (1984) 4 SCC 59

[8] 2006 SCC OnLine Del 1871

[9] (1987) 1 SCC 362

[10] (2016) 11 SCC 720

[11] (2020) 2 SCC 540

[12] Although in exceptional situations, the Courts have intervened, in writ petitions where patent illegality can be seen on the face of the record

[13] 2019 SCC Online SC 1517

[14] The  Supreme Court in the celebrated judgment of J. G. Engineers v. Union of India(2011) 5 SCC 758, has clearly stated that decision of the Superintending Engineer imposing penalty on the contractors is not adjudication

[15] Earnest Builders (P) Ltd. v. Union of India, 2007 SCC OnLine Del 678; Rajeev Traders v.  South Central Railway, 2002 SCC OnLine AP 628

[16] (2019) 15 SCC 131

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

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., directed the State to ensure that there is no use of firecrackers at all during Diwali celebrations and Kali Puja.

The instant application was filed in regard to the upcoming celebrations. There was another application by an unregistered body that could be loosely called the firecrackers’ association.

Verbal Advisories | Firecrackers

State has issued verbal advisories pertaining to firecrackers during Kali Puja and Diwali celebrations. Guidelines were framed regarding Kali Puja pandals.

State had made an appeal for all kinds of firecrackers not to be used this year in view of pandemic and the virus that attacks the respiratory system.

Further, the State submitted that the matter pertaining to firecrackers was still pending before the National Green Tribunal and orders have been reserved. In view of the same, State suggested that in the light of such specialised body having taken up the matter pertaining to firecrackers all over the country, such aspect may be left to the Tribunal and not gone into in the present proceedings.

In addition to the Kali Puja, Jagadhatri Puja and Kartick Puja pandals, the petitioners referred to the congregations on the day of Kali Puja at temples all over the State. The petitioners sought appropriate directions for the maintenance of Covid protocol in temples and for crowding not to be allowed within close spaces.

In view of notifications issued from time to time by the Centre that relaxations have been made for open-air congregations, though the wearing of face-masks or the use of face-shields has been made mandatory. Stricter protocols are required for gatherings indoors.

Since public Kali pujas are many more than Durga pujas and some of the pandals are much smaller, the guidelines issued for Durga Puja pandals are somewhat modified as follows:

(i) All pandals will continue to be No-Entry Zones, including an area of five-metre beyond the pandals on all the open sides. Only dhakis will be permitted to occupy the space beyond the pandals and within the five-metre zone thereafter. Except for dhakis, the five-metre zone has to be kept completely free at all times.

(ii) For the smaller pandals, where the covered area excluding the dais is upto 150 square metre, only 10 persons may be in such covered area at any given point of time. For pandals with a covered area between 150 square metre and 300 square metre excluding the dais, the number of persons at any point of time may be 15. For bigger pandals, in excess of 300 square metre in area excluding the dais, a maximum of 45 persons can be within the pandals at any given point of time.

(iii) Sanitisers must be available at the puja pandals and wearing of masks will be mandatory within and around the pandal area. The distancing norm has to be maintained at all times both within the pandals and in an around the pandals.

(iv) Immersions should be low-key affairs and processions for such purpose will not be permitted. The use of bands and lights at the time of immersion will also remain prohibited. It will be open to the local police to provide for staggered timings so that the immersion ghats are not overcrowded.

Firecrackers

Bench stated that the State should ensure that there is no use or display or bursting of firecrackers at all during the Kali puja and Diwali celebrations. Only wax or oil-based diyas would suffice, for the greater good of the citizens and in the larger public interest.

“…direction as to firecrackers will be effective all over the State and will cover not only the Kali Puja and Diwali celebrations, but also the Chhat Puja, Jagadhatri Puja and Guru Nanak’s birthday celebrations thereafter.”

Court directed the police to ensure that there is no sale or purchase of firecrackers in any form in the State between now and the end of the month and any kind of like material which has the potential to pollute the air shall be confiscated.

State will ensure that no firecrackers of any kind are brought into the State, except for immediate transit to another State.

As far as the application by the firecrackers’ association is concerned, it will be for the State to consider whether appropriate compensation or other measures can be taken.

For the greater good, a small number of persons involved in the firecracker business may have to suffer losses. The overwhelming public interest cannot be compromised.

Bench also stated that local police should ensure that COVID protocol is maintained in the temples including the distancing norms.

Local administration and police will ensure that there is no overcrowding within the temple precincts or outside.

For the other aspects, particularly with regard to the Chhat Puja and the kind of processions that may be allowed for Chhat Puja celebrations, the matter has been posted for 10-11-2020. [Anasua Bhattacharya v. State of W.B., 2020 SCC OnLine Cal 2056, decided on 05-11-2020]

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J., issued a writ of certiorari to quash the impugned orders and sent back the issue under challenge to the state for reconsideration in a time-bound manner, failing which penalty to be imposed on defaulting state officials.

The facts of the case is such that the petitioner is a registered Educational Trust grieving against the denial of permission for establishing a School for imparting education at the level of 1st to 8th Std in English medium, vide Endorsement dated 31-05-2019 issued by the 2nd respondent-DDPI, it’s Revision Petition challenging the same having been negatived by the Government vide order dated 3-2-2020.

Counsel for the respondent-State submitted that the petitioner-Trust has not produced the conversion order of the land in question to the non-agricultural purpose. It was further submitted that the text of the letter dated 02-03-2018 only indicates conversion potential of the land and not the conversion as such to educational purpose. It was also submitted that there is noncompliance of Rule 3(4) of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc) (Amendment) Rules, 2018 that reads as

“Every private body of persons desiring to establish and maintain an educational institution imparting pre-primary, secondary and higher secondary education or any part thereof shall own or have on lease for a minimum period of thirty years following minimum contiguous extent of land for the building and playground of the educational institution with permission from relevant authorities to use for educational purposes:”

 Counsel for the petitioners- Trust submitted that land having been converted to the non-agricultural user (industrial) by the Tumkur District Deputy Commissioner’s order dated 23-5-1986, now figures in Yellow Zone in the statutory Revised Master Plan [2031], formulated under the provisions of Sections 9 & 14 of the Karnataka Town and Country Planning Act, 1961, hence there is no requirement of one more formal conversion order that otherwise was warranted in terms of Section 95 of the Karnataka Land Revenue Act, 1964. It was further submitted that the Tumkur Urban Development Authority constituted under the provisions of the Karnataka Urban Development Authorities Act, 1987, vide letter dated 20-7-2018 has specifically stated that the land in question can be used for educational purpose in view of its inclusion in the Approved Comprehensive Development Plan (Revised- II)-2031.

 The Court observed that the land under challenge is taken by the petitioner-Trust on lease basis for a period of thirty years vide registered Lease Deeds is not in dispute; the said land having been converted to industrial purpose way back in May 1986 has no longer retained its agricultural character; such a converted land can be put to residential use because of inclusion per se in the Comprehensive Development Plan and residential purpose necessarily includes educational ones.

The Court further observed that the available facilities in the school building in question certainly do not fall short of those obtaining in any Government schools in the locality infact what is lacking should be pointed out to the petitioner so that it can be improved in a time-bound way; that exercise strangely has not been undertaken and hence it leaves an impression that somehow the powers that be, are working to ensure that this school shall not come up, for an indefinite period of time and that the reasons for the same remaining inscrutable, give scope for assuming ulterior motives.

The Court relied on Bhartiya Sewa Samaj Trust v. Yogeshbhai Amblal Patel, (2012) 9 SCC 310 and emphasized on enactment of Right to Education Act, 2009 and 86th Amendment to the Constitution which introduced Article 21A and Article 51A (k) of Constitution of India to remark:

“….the importance of these new provisions can be understood by the observations of the Apex Court to the effect that without Article 21A, the other fundamental rights are rendered meaningless; without education, a citizen may never come to know of his other rights; since there is no corresponding constitutional right to higher education, the fundamental stress has to be on primary and elementary education, so that a proper foundation for higher education can be effectively laid..”

The Court further reprimanded and stated that the school education in the country inter alia suffers from the limitation of coverage; there are not enough number of government/public schools to cater to the societal need; a corresponding statutory duty is cast on the private schools to make the fundamental right to free education at the primary level, meaningful; if the applications for grant of permission to establish such schools are mindlessly declined, that would muffle the inner voice of the aforesaid constitutional amendments that are complemented by legislative instruments.

The Court before disposing off the petition observed that there exists a certain difference between a requisition for the grant of permission for founding a school and an application for the grant of excise license for opening a wine shop.

In view of the above, petition is allowed and impugned order stands quashed.[Nexgen Education Trust (Regd.) v. State of Karnataka,  2020 SCC OnLine Kar 1647, decided on 21-10-2020]


Arunima Bose, Editorial Assistant has put this story together

New releasesNews

Kumar Kartikeya’s Article 12

Overview:

This well-researched work provides an exposition of the judicial interpretation of the concept of “State” in Article 12 of the Indian Constitution. The work gives an in depth insight of the term “State”. The book contains a wealth of information and provides some solutions to vital questions on the concept of ‘State’.

The present work fulfils the void of scholarly literature in this pressing area. The book is a valuable contribution to Indian constitutional literature and a work par excellence.  The work is divided into 9 chapters.

Special features:

  • Provides a thorough and critical analysis of judicial discourse and literature on ‘State’.
  • Addresses the issue with admirable meticulousness and conceptual clarity.
  • The work focuses more on what the State implies rather than what it is.
  • Author has discussed various types of the Constitutions such as nomadic, nominal and semantic.
  • Discusses other pertinent and emerging issues other than fundamental rights and directive principles.
  • After a thorough and critical historical examination of the British and US position, the author has made successful attempt to examine the judicial response to the concept of “State” under Indian Constitution.
  • This is the only available research work on the subject.

Table Of Contents:

1. INTRODUCTION

2. CONCEPTUALISATION OF STATE AND INFLUENCE OF OTHER CONSTITUTIONS

3. THE CONCEPTUALISATION OF “STATE” VIS-À-VIS FUNDAMENTAL RIGHTS

4. CHANGING JUDICIAL DISCOURSE ON STATE VIS-À-VIS FUNDAMENTAL RIGHTS

5. JUDICIARY AS STATE?

6. THE IDEA OF STATE VIS-À-VIS DIRECTIVE PRINCIPLES OF STATE POLICY

7. THE IDEA OF STATE VIS-À-VIS NON-STATE ENTITIES

8. THE IDEA OF “STATE” IN OTHER PARTS OF THE CONSTITUTION

9. CONCLUSION

About Author

Late Dr. Kumar Kartikeya after completing his BA LLB from University of Lucknow joined the Bar and practiced law for three years. Later, to pursue higher studies in law, he joined National Law School of India University (NLSIU), Bangalore and completed his LLM with specialisation in Business Laws. However, his interest towards academics and particularly in the field of constitutional law forced him to join NALSAR University of Law, Hyderabad. Prior to joining National Law University, Odisha in 2014, he was a part of the KIIT Law School, KIIT University, Bhubaneswar. Kumar completed his PhD from National Law University Odisha on the topic “The Concept of State under the Constitution: A Critical Study of Judicial Response”. He presented numerous papers on constitutional and legal issues at various national and international seminars. Dr. Kumar, a brilliant constitutional law teacher passed away in the year 2014 due to cancer.

“Kumar was a beloved teacher, an astute and brilliant analyst of the law, a promising scholar of immaculate intellectual integrity and a man of absolute generosity and assiduous kindness to all those who worked with him,”. (Dr.) Srikrishna Deva Rao, Vice-Chancellor, National Law University Odisha.

The book provides a thorough and critical analysis of judicial discourse and literature on state. It does go beyond fundamental rights and directive principle and discusses other pertinent and emerging issues. The book does provide an in-depth insight to the concept of State. I am sure that it will be useful for the students of constitutional law, practitioners and researchers. The book contains a wealth of information and provides some solutions to vital questions on the concept of State.from the Foreword by Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR.


Buy your copy now, Click on the link available below:

Kumar Kartikeya’s Article 12

Hot Off The PressNews

States asked to strictly enforce lockdown,

Legal action against violators.


Ministry of Information & Broadcasting

[Press Release dt. 23-03-2020]

[Source: PIB]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench comprising of Mahesh Grover and Mahabir Singh Sindhu, JJ., addressed the issue whether a person who had been issued a certificate of Schedule Caste/Schedule Tribe and Backward Classes by one  State take benefit of reservation in another state.

The facts of the case were such that the petitioner who had applied for M.B.B.S course questioned the selection at the Government Medical College and Hospital. The petitioner contended that candidates belonging to reserved category in states of Punjab, Haryana, Himachal Pradesh and Rajasthan having been issued certificate of Schedule Caste/Schedule Tribe should get benefit of reservation in their respective State and not in UT, Chandigarh. In favour of the above contention, the case of Sanjeev Kumar v. State of Bihar, (2016) 13 SCC 105 was referred according to which no person could take dual benefit by invoking reservation in two states by virtue of the fact that the person has migrated from one state to another.

The High Court quashed the admissions already made by the Government Medical College and directed a fresh counselling to be held. [Sabhya Kamal v. Union Territory, Chandigarh,  2018 SCC OnLine P&H 1046, order dated 24-07-2018]

Hot Off The PressNews

On Day 7 of the Aadhaar hearing, Senior Advocate Shyam Divan summed up his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Shyam Divan picked up from where he left on Day 6 i.e. arguing on the affidavit filed by a fieldworker on the Jharkhand NREGA program recounting starvation deaths that occurred in Jharkhand because of Aadhaar linking failures.

Below are the highlights from Day 7 of the hearing:

Submission on affidavit on exclusion of people with leprosy: 

  • Shyam Divan: The issues here pertain to exclusion, death, and dignity. The reports are about extreme situations. SD says that the basis point is that in a democracy, there has to be an element of choice. There can’t be just one method of identification imposed.
  • Chandrachud, J: One thing the Court needs to look at is the level of internet penetration in the country.
  • Shyam Divan:  The PoS machine has a memory, so if the internet fails, the machine is often taken to another place. All Aadhaar can do is stop a very limited kind of misuse (identity fraud), and there are other ways to weed out leakages.
  • Chandrachud, J: The affidavit seems to show that even after Aadhaar, the citizen remains dependant on the PDS dealer. While that argument may not furnish a constitutional ground, but the argument that Aadhaar itself is causing exclusion nay furnish a ground under Article 14.
  • Shyam Divan: Persons who cannot authenticate are treated as “ghosts”, and as mere statistics. He says this cannot meet the tests under Articles 14, 19, and 21. This is especially so because the system is coercive.

Submission on no option to opt out of Aadhaar scheme:

  • Shyam Divan: This is crucial from an informational self-determination point of view. There must be a right to opt-out. (Reads out affidavits from people who have asked to be able to opt-out, on the ground that there was no genuine informed consent at the time of enrolment and a collective affidavit from Meghalaya from people who want to opt-out of Aadhaar.)
  • Chandrachud, J: What is the position in the North-East?
  • Shyam Divan: There are places where the roll-out is low, and they have been exempted.
  • Shyam Divan reads out the affidavit of Rakesh Mohan Goel, a computer industry expert who went and audited enrolment centres. Below are the findings mentioned in the affidavit:
    • Computer Industry people were retaining biometrics and storing them, and the UIDAI had no way of knowing. 
    • The biometrics of Indians are available to private entities, can be and are being stored in logs.
    • Because of the architecture of Aadhaar, UIDAI has very little control over this.
    • There is no way of knowing, after an audit, whether the storage is continuing or has stopped.
  • Shyam Divan: When you part with something as precious as biometrics, there has to be a fiduciary relationship between you and the person taking it. How can you trust a system like this?
  • Chandrachud, J: How are the authentication machines purchased?
  • Shyam Divan: UIDAI has technical specifications, but the purchase is private. The point is that biometric data is easily compromisable. This is a reason why people do not want to be on Aadhaar, and why they should not be *mandated* to get into the system. While some of these leaks can be plugged, the basic design is faulty. In Surat, the biometric data of ration card holders was stored and then used to siphon off.
  • Shyam Divan (Discussing the mechanism of producing artificial fingerprints): The operator’s fingerprints are cloned. When UIDAI found this out, they added iris authentication. However, the hackers then found a way to bypass that as well. Cloning of fingerprints is easy and it’s possible, and it’s been done. What is the integrity of the system, and why should anyone trust this? This is a question of my right to protect my body and my identity. If the system is so insecure, why am I being mandated to authenticate through fingerprints for every transaction? The more the database expands, given that this is a probabilistic system, the more times you will have a match. This is indicative of exclusion, and that the system is saturated, leading to unjustified rejections.
  • Shyam Divan (Reading out Dr Reetika Khera‘s affidavit, who is an economist at IIT Delhi, and works on the NREGA. It speaks about biometric authentication failure at a tribal school, where those whose fingerprints were not recognised by Aadhaar, were not marked present): Firstly, these are not ghosts in the system. They are flesh and blood girls attending the school, and Aadhaar is not recognising them. Secondly, you’re creating records for an entire lifetime, starting from school. Is this not a surveillance society? Thirdly, there is no statutory sanction.
  • Sikri, J: In fact later, the teachers may be hauled up for inflating numbers.

Submission on whether an individual’s body belongs to her or to the State:

  • The question is, in a digital world, how do I exercise control over my body? In a liberal democratic culture, the basic value is the prohibition of slavery, which means that an individual’s body cannot be used for purposes that she does not endorse.
  • If a person exists in flesh and blood, where is the question of denying her anything? This is at the core of Article 21 and the relationship between the individual and the State. In a liberal democratic culture, can the State say that “I will choose to recognise you only in this manner, otherwise you cease to exist”?
  • There is no concept of eminent domain as far as the body is concerned. The body cannot be used as a marker for every service.
  • The State has a legitimate interest in identifying a person, and so there could be a set of limited, narrowly tailored circumstances where you are required to give up fingerprints, such as for a passport or a driving license or a criminal investigation.

Summary of Shyam Divan’s arguments: 

  • Personal autonomy: Are we going to cede complete control of the body to the State? In a digital world, personal autonomy extends to protecting biometrics.
  • Constitutional trust: We have created the State, and now the State trusts us as unworthy unless we cede our biometerics. The Aadhaar program treats the entire nation as presumptively criminal.
  • Rule of law: Look at how this project has been rolled out.
  • Surveillance and privacy
  • Domination of State:  If this program is allowed to roll on unimpeded, think of the domination The State will have over the individual.

Senior Advocate Kapil Sibal’s submissions:

  • Kapil Sibal: If the State wants Google to give information, it will have to get a court order. Aadhaar bypasses that safeguard. You have the right to opt-out of Google, FB, Twitter. There is no such right with respect to Aadhaar.
  • Chandrachud, J: This distinction may not be persuasive, because in today’s world, you have only notional consent even with respect to private players.
  • Kapil Sibal: There is an important distinction between the State and Google. There are open source alternatives to Google. And even within Google, I have choices and control. There is also a further qualitative distinction. Google uses your data and that often increases your choice. Aadhaar restricts it.
  • Kapil Sibal: How can Aadhaar Act, 2016 be a money bill?
  • Chandrachud, J: That link comes from the Consolidated Fund of India. (P. Chidambaram to argue on this point later)
  • Kapil Sibal (On deactivation of Aadhaar): Consider what will happen in the time that your Aadhaar is deactivated, and you’re trying to rectify it. This is unimplementable in a polity as large as ours. Think of how this will play out in rural India. He points to the regulation that allows deactivation for “any other reason deemed appropriate.” What kind of power is this? This is the power to cause civil and digital death.”
  • Chandrachud, J: You can’t judge the validity of an act by the potential for abuse.
  • Kapil Sibal: This is about how much power you are giving up to the State. In the information age, it’s not merely about “possibility” any more. It exists. (Reads out an article in the newspaper today that talks about digital payments being pushed to 1 trillion dollars in five years.)
  • Chandrachud, J: How does the Court decide what level of risk is proper or not? Should the Court get into this or should it be left to the legislature?
  • Kapil Sibal: I am not saying that the State will misuse it. But the information is in the public domain.
  • Sikri, J: What information will the bank have when you link your Aadhaar?
  • Kapil Sibal: Aadhaar has been used for banking frauds. Different principles need to be evolved in dealing with digital issues. The principles used to adjudicate other statutes don’t map with accuracy.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5 and Day 6 of the hearing.

Source: twitter.com/gautambhatia88

Case BriefsForeign Courts

Constitutional Court of South Africa: A Constitutional Bench comprising of Nkabinde, ADCJ, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Zondo, JJ along with Mojapelo and Pretorius AJJ, refused to grant leave to appeal against the order of the Supreme Court of Appeal.

The applicant was an aspiring doctor seeking admission to the respondent university (hereinafter ‘the University’). In 2015 the applicant applied for admission at the University to study for an MBChB degree, as she aspires to be a medical doctor. However her application was unsuccessful. In order to improve her prospects for admission the following year, the applicant registered for the degree of Bachelor of Medical Science (Anatomy) in 2015. When applications for the 2016 intake were open, she applied again under the policy described as ‘mature students’. The applicant fell within category (a) of the larger group of ‘mature students’, meaning that she had done an year or more of a degree course at a recognized university in South Africa and had achieved outstanding results. A total of 10 students were to be taken from category (a) out of 40 “mature students” for admission. The applicant failed to get admission against category (a).

Aggrieved by this decision, the applicant launched a review application in the KwaZulu-Natal Division of the High Court, arguing that the University had failed to consider and apply it’s own admission policy. The University contended that the applicant was competing for 10 seats against 160 other applicants and the allotments were merited according to academic qualifications of each applicant, meaning that the aspirants having completed their courses were given preference over those who had not. The High Court dismissed the application with costs as the applicant failed to show that the relevant policy was not applied in determining her application for admission. The Appeal also failed with costs.

The applicant then filed this application for leave to appeal before the Constitutional Court. The parties were called to put forward written submissions on whether in determining the cost orders, the High Court and the Supreme Court of Appeal should have followed the principle laid down in Trustees for the Time Being of the Biowatch Trust v. Registrar, Genetic Resources, 2009 SCC OnLine ZACC 13 : [2009] ZACC 14. The Court was satisfied that the application must fail as far as merits are concerned as it bears no prospects of success. However, the Court was not satisfied that the subordinate courts were correct in not applying the Biowatch principle. The principle states that in constitutional matters against the state or organs of the state, the litigant, subject to exceptions, should not be made to pay costs of the state. This principle is in place to avoid adverse cost orders against litigants seeking to assert constitutional rights. The Court categorically stated that administrative issues are constitutional in nature and that it could not be denied that the University exercised public power and hence, was state. The Court was also of the opinion that in seeking litigation for admission to further her aspirations, the litigant was not a frivolous litigant. Hence, the subordinate courts should have applied the Biowatch principle. The Court granted leave to appeal in respect to cost orders only while refusing leave to appeal against merits. [Niekara Harrielall v. University of KwaZulu-Natal, Case CCT 100 of 2017, decided on 31.10.2017]