Case BriefsSupreme Court

Supreme Court: The bench of Anirudhha Bose and JB Pardiwala*, JJ has held that while private unaided minority institution might be touching the spheres of public function or performing a public duty, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions.

The Court wad dealing with the case relating to a private unaided minority educational institution and its disciplinary committee, wherein the Madhya Pradesh High Court had held that a writ petition filed by an employee of a private unaided minority educational institution seeking to challenge his termination from service was maintainable in law.

Issues

 (a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution?

(b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?

Analysis

At the outset, the Supreme Court noticed that CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body.

As the CBSE itself is not a statutory body nor the regulations framed by it has any statutory force, the mere fact that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management.

Thus, where a teacher or non-teaching staff challenges action of Committee of Management that it has violated the terms of contract or the rules of the Affiliation Byelaws, the appropriate remedy of such teacher or employee is to approach the CBSE or to take such other legal remedy available under law. It is open to the CBSE to take appropriate action against the Committee of Management of the institution for withdrawal of recognition in case it finds that the Committee of Management has not performed its duties in accordance with the Affiliation Byelaws.

The Court took note of the ruling in Ramesh Ahluwalia v. State  of Punjab, (2012) 12 SCC 331 wherein it was held that a writ petition would be maintainable if a private educational institution discharges public functions, more particularly imparting education. However, even by holding so, the declined to extend any benefits to the teacher as the case involved disputed questions of fact.

The Court observed that merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law.

“It would not be safe to say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable to writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the   writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action.”

Conclusion

  1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the 64 public or a section of it and the authority to do so must be accepted by the public.
  2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either   the  service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element.
  3. While a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to  judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may fall within the domain of a “public function” or “public duty” be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, however, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.
  4. Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.

[St. Mary’s Education Society v. Rajendra Prasad Bhargava, 2022 SCC OnLine SC 1091, decided on 24.08.2022]


*Judgment by: Justice JB Pardiwala


For appellant: Advocate Pai Amit

Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: In a case of an illegal termination of a Manager of Kotak Mahindra Bank being pending for relief and having no effective hearing owing to the post of Deputy Labour Commissioner being vacant, Arun Bhansali J. instructed the State to appoint competent authority which was thereby appointed.

The Petitioner was appointed as Senior Manager with the respondent-bank Kotak Mahindra Bank. The petitioner received several awards and accolades for his exceptional performance but on a not so fateful day, he was terminated from his services with immediate effect without any notice or enquiry whatsoever for alleged admitted indulgence in fraudulent activities prejudicial to the interest of the Bank by routing the direct business through DSA (Direct selling agents).

A complaint was filed under Section 10-A of the Industrial Dispute Act (‘ID Act') with an objective to resolve the dispute through conciliation before the Joint Labour Commissioner and Labor Conciliation Officer, Labour Department/Office, Jodhpur. However, owing to vacancies in the office of the Labour Department and thus due to no effective hearing, no action could have been undertaken.

Being aggrieved of the illegal termination order by the respondent bank, the Petitioner filed a Complaint under Section 28-A(2) of the Rajasthan Shops and Commercial Establishments Act, 1958 (‘1958 Act') read with Rule 24B of the Rajasthan Shops and Commercial Establishments Rules, 1959 (‘1959 Rules'). Hence, in the absence of an efficacious remedy to provide any relief against the prima facie illegal termination by the respondent bank, the present writ petition was preferred before the instant Court.

The petitioner contended that the illegal termination was justified as per Clause 19 of the employment agreement which is void ab initio being in contravention to the applicable law. It was further contended that though the petitioner has availed himself of his remedy under the Rajasthan shops and Commercial Establishments Act, on account of the office of the Labour Commissioner at Jodhpur being vacant present petition was filed.

Counsel for respondent submitted that steps have already been taken for appointment of Joint Labour Commissioner and needful is likely to be done by the next date of hearing.

Thus, it was brought to the notice of the Court that the competent authority, i.e. the Dy. Labour Commissioner has been appointed vide order dated 14-07-2022, and hence in light of this, the Court disposed of the petition.

However, the Court remarked that it is expected of the competent authority to deal with the matter filed by the petitioner with utmost expedition.

[Aaraj Sharma v. State of Rajasthan, S.B. Civil Writ Petition No. 7614/2022, decided on 27-06-2022 and 21-07-2022]


Advocates who appeared in this case :

Mr. Siddharth Tatiya, Advocate, for the Petitioner(s);

Mr. Himanshu Shrimali, Advocate, for the Respondent(s).


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: G R Swaminathan J. directed the State to pay compensation of Rs 1 Lakh to a student who could not take admission in the medical course in the academic year 2021-2022 as he was unable to register his name on the portal for NEET counseling even after obtaining marks beyond cut off limit, due to poor internet connectivity.

The petitioner aspiring to be a doctor is aggrieved because even after securing 409 marks in NEET exam, he could not register his name on the portal on time because of poor internet connectivity and the server being busy. He later found that students who scored as low as 108 marks in NEET were allotted seats under the management quota. Thus, instant petition was filed under Article 226 praying to issue a writ of Mandamus directing the respondents to give admission to the petitioner in any one of the Medical College under the Management Quota based on the petitioner’s NEET Examinations score.

The Court reaffirmed the stand of the counsel for respondent stating that it is not possible to direct the admission of the petitioner for any medical course for the academic year 2021-22 as the writ petition was filed in April 2022 .

The Court also remarked for the marks obtained by him was entitled to get admission in a medical course under management quota but could not because of online glitches. If the respondents adopted a dual mode of counselling, i.e., both physical and online, the situation could have been avoided and also,If the respondents had given the petitioner reasonable time to register himself in the portal, then probably, he could have made it.

Placing reliance on Asha v. PTBD Sharma University of Health Sciences, (2012) 7 SCC 389 and S Krishna Sradha v. State of Andhra Pradesh, (2020) 17 SCC 465, the Court noted that Court must do complete justice between the parties, particularly, where the legitimate right of the Appellant stands frustrated because of inaction or inappropriate action on the part of the concerned Respondents and in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

Further reliance was placed on Action Committee Unaided Recognized Private Schools v. Justice for All, Special Leave to Appeal (C) No. 4351 of 2021, decided on 08-10-2021 to emphasize that the digital divide has produced stark inequality in terms of access to education. Children belonging to EWS/DG suffer the consequence of not being able to fully pursue their education and many may have to drop out because of lack of access to internet and computers.

The Court directed the State to pay a sum of Rs.1 lakh as compensation to the petitioner-student within a period of eight weeks and ensure that the selection process is conducted and finalized in such a way so as to ensure that incidents such as the one on hand do not recur.

[K Lal Bhagadhur v. Director of Medical Education, 2022 SCC OnLine Mad 3661, decided on 13-07-2022]


Advocates who appeared in this case :

Mr. D. Srinivasaraghavan for Mr. S.M. Mohan Gandhi, Advocates, for the Petitioner;

Mr. V. Om. Prakash, Government Advocate, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court | The Division Court of Vikram Nath* and Dinesh Masheswari, JJ. held that the State’s act of taking the appellants’ property, all being farmers, without compensation, was arbitrary, irrational, and a clear violation of Article 300A of the Constitution. Since the land in question was agricultural, the Court opined that non-payment of adequate compensation would amount to a violation of the right to livelihood; a fundamental right under Article 21.

The Court observed, citing its decision in  K.T. Plantation (P) Ltd. v. State of Karnataka, 2002 SCC OnLine Kar 380, that under the mandate of Article 300A, the State can only deprive a person of the right to property if it is for a public purpose and the right to compensation is fulfilled, thereby reiterating that the right to compensation is an inbuilt part of Article 300A.

The Panchayat/Municipality wanted to widen the Sulthan Bathery Bypass Road and therefore requested the appellants to utilize their land for the construction of the road. The appellants were assured that they shall be paid proper compensation for surrendering their land.

According to the appellants, they gave their land on the assurance that they would be given compensation. After the construction of the road, the compensation was not paid to the aggrieved farmers and they moved to the Kerala High Court in 2014. The Single Judge ruled in the favour of the farmers and ordered compensation at the market rate on 26-08-2016. In appeal, the Division Court of the High Court set aside the judgment of the single judge on the reasoning that the burden of proof was on the appellants, that they were given the assurance of compensation, which they had failed to prove. Further, the High Court held that there is no provision in law stipulating that price needs to be given in case land is acquired for road development.

On the contention of the Panchayat/Municipality that the land was surrendered by the appellants voluntarily for no compensation, the Court held that it was for the Panchayat to prove such voluntary surrender by establishing that the appellants had signed a memorandum, an agreement, or a written instrument declaring their willingness to relinquish for no payment in favor of the Panchayat/Municipality. The Court further took note of the fact that the sole Judge had explicitly said that the Panchayat/Municipality as well as the Public Works Department (PWD) had failed to offer any such proof, and the Division Court did not discover any material on record produced by the Panchayat/Municipality or the PWD to that effect.

Hence, the Court held that the disputed land was not voluntarily surrendered by the appellants-farmers, and it was the High Court that erred in shifting the burden of proof on the appellants. The Court further stated that Article 300A restricts a person to be deprived of his constitutional right to property and since the land was used for agricultural purposes, non-payment of adequate compensation would also be a violation of the right to livelihood; an integral fundamental right under Article 21.

Consequently, the Supreme Court concluded that the High Court’s conclusion that there is no provision in law mandating compensation for road construction was contradictory to Article 300A of the Constitution. The impugned judgment and order of the Division Court were set aside and quashed while the judgment of the Single Judge was restored.

[Kalyani v. Sulthan Bathery Municipality, 2022 SCC OnLine SC 516, decided on 26-04-2022]


*Judgment by: Justice Vikram Nath


 

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench comprising Uday Umesh Lalit, S. Ravindra Bhat*, Pamidighantam Sri Narasimha, JJ., reversed NCDRC’s findings where it had relied on third-party DGFT Guidelines to interpret the date of ‘despatch/shipment’ in the Single Buyer Exposure Policy of the respondent, and thereby deny the appellant’s claim.

The respondent had treated the date on which loading commenced as the date of despatch/shipment’ to reject the appellant’s insurance claim. Deciding the case in favour of the appellant, the Court held,

“The term ‘despatch’ contained in the policy implied ‘completion’ of handing over of possession of the goods to the first carrier (the ship), and not the date on which the loading ‘commenced’ such an interpretation would give rise to an absurdity.”

Factual Matrix

The appellant was an exporter of fish meat and fish oil, who had obtained an insurance cover of ₹ 2.45 crores for foreign buyers’ failure to pay for goods exported from Export Credit Guarantee Corporation Ltd. (ECGC), a government company (under the control of the Ministry of Commerce and Industry, Union Government). ECGC provides a range of credit risk insurance cover to exporters.

The vessel (Tiger Mango Voyage 62) set sail on 15-12-2012. The Bill of Lading was prepared on 19-12-2012, with a line specifying the date of ‘onboard’ (i.e., date on which vessel commenced loading the goods in question on board) as 13-12-2012. The vessel delivered the goods on 22-01-2013, however, the overseas buyer defaulted on payment which gave rise to the appellant’s claim lodged with ECGC on 14-02-2013.

ECGC rejected the appellant’s claim stating that since the date of ‘despatch/shipment’ was not clearly defined in the policy, reliance was to be placed on the definition contained in the Directorate General of Foreign Trade (DGFT) Guidelines. As per which, for containerized cargo, the date of ‘despatch/shipment’ was to be interpreted as the date of ‘Onboard Bill of Lading’, which was 13-12-2012, i.e., a day prior to the effective date of the Policy, i.e., 14-12-2012. Therefore, ECGC reasoned that the appellant was not entitled to the claim amount.

The appellant, feeling aggrieved, complained of deficiency of service, and approached the NCDRC for compensation. By the impugned order, NCDRC upheld the rationale of the ECGC and rejected the appellant’s claim.

Analysis and Conclusions

Common Business Sense

Rejecting the interpretation of the terms ‘despatch/shipment’ as construed by ECGC, the Court opined that in event of confusion the disputed terms need to be interpreted in a common business sense. The Court stated,

“The date of loading goods onto the vessel, which commenced one day prior to the effective date of the policy, is not as significant as the date on which the foreign buyer failed to pay for the goods exported, which was well within the coverage period of the Policy.”

Reliance was placed by the Court on Peacock Plywood (P) Ltd. v. Oriental Insurance Co. Ltd., (2006) 12 SCC 673, to hold that while interpreting insurance contracts, the risks sought to be covered must also be kept in mind. Further, the Court opined that the date of loading the goods onto the vessel was immaterial to the purpose for which the policy was taken by the appellant. The Court noted,

“A plain reading of the policy in question demonstrates that it was taken to protect against failure of the foreign buyer in paying the Indian exporter for goods exported. It was not a policy taken to cover in-transit insurance, and the cause of action triggering the claim arose much later, i.e., on 14.02.2013, well within the coverage of the policy.”

Interpretation of Despatch/Shipment

The Court opined that on harmoniously construing the documents of the policy, it is, in fact, the date on the Bill of Lading, and not the Mate’s Receipt/date of shipment which ought to be considered as the date of ‘despatch/shipment’, for the Bill of Lading is the legal document conferring title and possession of the goods to the carrier. Therefore, the Court held that reliance on the DGFT Guidelines to disallow the claim of the appellant was not good in law.

Further, the Court observed that even if the third-party DGFT Guidelines were to be applied, it would not favour the ECGC, as a plain reading of provision 9.12 of the guidelines shows that the date on the Bill of Lading has to be considered as the date of despatch/shipment.

Conclusion

In the backdrop of above, the impugned order of the NCDRC was set aside; the appellant’s complaint was consequently allowed. ECGC was directed to pay the claim amount of Rs. 1,96,38,400/- crores to the appellant, with interest at the rate of 9% p.a.

[Haris Marine Products v. Export Credit Guarantee Corpn. Ltd., 2022 SCC OnLine SC 509, decided on 25-04-2022]


*Judgment by: Justice S. Ravindra Bhat


Appearance by:

For the Appellant: Ms Anjana Prakash, Senior Advocate

For the ECGC: Mr Rajnish Kumar Jha, Advocate


Kamini Sharma, Editorial Assistant has put this report together


Case BriefsSupreme Court

Supreme Court: Reversing the concurrent findings of the Single Judge and Division Bench of Kerala High Court, the Bench of S. Abdul Nazeer* and Vikram Nath, JJ., held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years.

The Court held that if the amount was not paid on account of any misrepresentation or fraud of the employee but it was the employer who applied wrong principle for calculating allowance or misinterpreted a, such excess payment of emoluments or allowances are not recoverable. The Court clarified,

“This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered.”

Question of Law

The issue before the Court was whether increments granted to the appellant, while he was in service, can be recovered from him almost 10 years after his retirement on the ground that the said increments were granted on account of an error?

Backdrop of Events

The brief facts of the case were such that the appellant was a High School Assistant/Teacher in an aided school. During his tenure, he availed leave without allowance first from 20-10-1972 to 31-03-1973 and again from 02-07-1973 to 28-03-1974, for pursuing post-graduation i.e., M.Sc. (Chemistry) Course.

Later on, the appellant was promoted as Headmaster of the school and was granted senior grade promotion and his pay scale was revised accordingly. Consequently, a notice was served to the appellant by District Educational Officer with an objection that the period of leave obtained for undergoing higher education should not be included while determining total qualifying service. Therefore, the Educational Officer recommended that pay and subsequent increments granted to the appellant should be recovered from him.

The proposal to initiate recovery proceedings was challenged by the appellant before the Public Redressal Complaint Cell which rejected the said complaint stating that post-graduation degree M. Sc. (Chemistry) was not useful as per the Rule 91A Part I of the Kerala Service Rules in any manner to the public service, therefore, leave without allowance could not be counted for service benefits.

Impugned Findings of the High Court

Meanwhile, the appellant retired from service. Pursuant to the order of Educational Officer the Deputy Director Education sanctioned the release of 90% of the death-cum-retirement gratuity (D.C.R.G.) amount after withholding 10% of the said amount. Aggrieved, the appellant approached the High Court which upheld the reasoning given by the State and dismissed the writ petition holding that the mistake committed by the department while granting the service benefits can be rectified subsequently by way of proposed recovery to be effected from appellant’s D.C.R.G. amount.

The appellant contended that the excess payment made to the appellant was not on account of any misrepresentation or fraud on his part; rather the excess payment was made due to a mistake in interpreting the Kerala Service Rules.

Analysis and Findings

The Court opined that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.

However, the Court clarified that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

Conclusion

Hence, considering that the access amount was not paid on account of misrepresentation or fraud played by the appellant, the Court held that an attempt to recover the said increments after passage of ten years of retirement was unjustified. Consequently, the impugned judgment and order was set aside and quashed.

[Thomas Daniel v. State of Kerala, 2022 SCC OnLine SC 536, decided on 02-05-2022]


*Judgment by: Justice S. Abdul Nazeer


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Delhi High Court: Expressing that, the mere fact that certain encroachments represent religious structure cannot possibly detract State from its obligation, Yashwant Varma, J., held that, State remains duty-bound to remove all unauthorized constructions which may exist on public land.

Present petition brought to the attention of the Court encroachments having been made on a public pathway.

On 22nd November, 2021, counsel for respondent 1 had apprised the Court that the complaint had been taken cognizance of and forwarded to the Religious Committee.

In the present petition, the Counsel for GNCTD apprised the Court that the said Committee had addressed a communication to the Corporate and awaits further information and inputs in order to assess the steps which are liable to be taken.

Counsel for the Corporation apprised the Court that the requisite information had been duly transmitted by that authority and in any case if anything still remains, it shall, as in duty bound, provide all further information as may be sought by the Committee.

Petitioner’s counsel submitted that the stand taken by the respondents clearly evidences apathy and a failure to remove structures which are admittedly unauthorized.

Decision

High Court expressed that the state respondents remain duty bound to remove all unauthorized constructions which may exist on public land.

Further, the Bench remarked that,

The mere fact that those encroachments represent religious structures, a place of worship or are given the colour of a religious structure cannot possibly detract or dilute from that obligation.

Additionally, the High Court stated that, on a conjoint reading of the Circular as well as the decision in W.P.(C) 10949/2021, it is evident that all that the Circular intends to achieve is to ensure that the removal of encroachments is conducted in a structured manner and untoward incidents or a law and order situation being created avoided.

Matter to be listed again on 8-4-2022. [Kings Furnishing and Safe Co. v. Commissioner, WP (C) No. 12715 of 2021, decided on 14-3-2022]


Advocates before the Court:

For the Petitioner:

Mr Manish Kaushik and Mr Ajit Singh Johar, Advs.

For the Respondents:

Ms Mini Pushkarna, SC for NDMC with Ms Khushboo Nahar and Ms Latika Malhotra, Advs. Mr Santosh Kr. Tripathi, SC (Civil) for GNCTD with Mr Arun Panwar and Mr Siddharth K. Dwivedi, Advs. for R-3(SHO).

Op EdsOP. ED.

Introduction

Judicial legislation is nothing but law pronounced, proclaimed and declared by the judiciary–more particularly the Supreme Court, this is also known as “judicial law” or “Judge-made law”. Even though enacting legislation is the constitutional prerogative of the legislature. There may be circumstances where the existing laws made by the legislature prove to be inadequate in the process of administration of justice. It is said that even if Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society1.

“The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna2.” In such situations, the directions issued by the higher judiciary, to fill the vacuum until the legislature enacts substantive law is also a constitutional prerogative to meet the ends of the justice. Hence to meet the needs of society, the Judges do make law and it is now recognised everywhere.

But this shall not be vented out as activism, as Judge-made law or judicial law is also formally recognised under Article 133, where legislature or “other competent authority” is inclusive of judiciary and even considering wide power of the Court under Articles 324, 2265, 2276, 1417 and 1448 it is quite clear that the Constitution has bestowed the power on the courts to legislate wisely9. The initial years of the Supreme Court of India were the adoption of the British tradition of limited judicial review with a very cautious approach. Later on, the struggle for supremacy is very well known. In the 1960s and 1970s, the Court delivered landmark judgments which changed the course of the Indian judiciary and political scenario.

In the post emergency era, Maneka Gandhi’s10[1] judgment brought human rights jurisprudence by widening the scope of various constitutional provisions. For example, Articles 1411 and 2112 has been expanded manifold by judicial creativity. Later on, public interest litigation was a stepping stone devised by the constitutional courts for ameliorating the social and economic conditions of the society resulted in the evolution of human rights, environmental, compensatory jurisprudence and more so the poverty jurisprudence[2]13.

The beauty of social dynamics through Judge-made law is that it aims at evolution and not revolution and that is why it has come to be widely accepted14. “The problems before the Supreme Court require at times the economist’s understanding, the poet’s insight, the executive’s experience, the politician’s scientific understanding and a historian’s perspectives”15 to add to this sometime legislative duties are also required. In this process, it has in a way rewritten the Constitution and filled the existing laws with necessary lifeblood through its interpretation.

Jurisprudence vis-à-vis Judge-made law

In 19th century English Jurists Bentham and Austin created classical positivist jurisprudence, while Bentham’s legal philosophy “utilitarian individualism” condemned Judge made law. Even in Austin’s theory, there is no place for Judge-made law. Later this was developed in the 20th century by Hart, Kelsen and others, who taught that lawmaking is the task of the legislature, not the judiciary. The latter’s job is only to interpret the law made by the legislature and direct its enforcement.16

In sociological school of jurisprudence, which started in Europe towards the end of the 19th century by Geny, Duguit, etc and developed in the United States by Roscoe Pound and others opined that Judges can, and in fact do legislate. Pound’s functional theory paved the way for the more extreme school of sociological jurisprudence in the USA, the realist school.

According to Gray, one of the founders of the realist school, statutes, rules, etc. is not law but the material which the Judge uses in making law17. Gray observed, “it has sometimes been said that law is composed of two parts, legislative law and Judge-made law, but in truth, all the law is Judge-made law”. Frank Llewelyn went to an extreme and said that the only real law is Judge-made law and that the Judges were creators rather than the discoverers of the law18.

In case of declaratory theory which states Judges are no more than the discoverers of law. They discover the law on a particular point and declare it. This view has been supported by many writers, jurists and Judges. Similarly this applies to original precedents according to Salmon which has an effect of the law for future. This declaratory theory has been criticised by Bentham as “a wilful falsehood having for its object the stealing of legislative power by and for hands which could not or durst not, openly claim it”.19

Landmark judgments of judicial legislation

Jurisprudence of State liability established20

Rudul Sah was arrested on charges of murdering his wife in 1953, later he was acquitted by an Additional Sessions Judge, in 1968, who directed his release from jail, pending further orders. But he was not released from jail even after 14 years of his acquittal order until his plight was highlighted in the media in 1982. This led to the filing of the public interest litigation (PIL) on his behalf21.

This is a landmark judgment in the jurisprudence of State liability22. It is considered particularly important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights under the Constitution. This decision overruled Kasturi Lal Ralia Ram Jain v. State of U.P.23 which held the State is immune and cannot be held liable for its tortious acts. Though there is no express provision for awarding compensation in the Indian Constitution, this judgment was based on the Court’s interpretation of the extent of its remedial powers. The Court held that “The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield”24.

The grant of such monetary compensation was in addition, and not to the exclusion, to the right of the aggrieved person to bring an action for damages in civil law or in tort.

Inter-country adoption guidelines25

Lakshmi Kant Pandey, an advocate, wrote to the Supreme Court alleging neglect and malpractice on the part of social organisations and private adoption agencies facilitating the adoption of Indian children to foreign parents. His letter was based upon the empirical investigation carried out by a foreign magazine, The Mail. Since there is no statutory enactment in India relating to the adoption of Indian children by foreign parents, the Court had to look into Section 8 of the Guardians and Wards Act, 189026. This laid down the normative and procedural safeguards to be followed in cases of adoption of children. The judgment27 stressed on policy towards securing children of tender age from abuse and precautions which can prevent them from being forced to enter into vocations unsuitable for their ages and strength.

The judgment was penned by Bhagwati, J. in order to protect the child against exploitation, human trafficking, certain safeguards and procedures have been mentioned. He opined that a congenial environment for the children could be given only by biological parents, but in case if a child is abandoned efforts should be made to trace biological parents. The next step would be looking for adoptive parents within the native country of the child. If adoptive parents within the native country of the child cannot be found within a maximum period of 2 months, then looking for adoptive parents outside the country is the best alternative. However, several other safeguards are also mentioned which have to be taken care of by the social and child welfare agency recognised by the Government before adopting a child to foreign parents. The Court also revisited Rasiklal Chhaganlal Metha, In re28 where a copy of the home study report was mandated to be issued to the Indian Council of Child Welfare or Indian Council of Social Welfare for careful examination of foreigner’s social and financial status.

River Ganga water pollution guidelines29

Advocate M.C. Mehta filed a writ petition in the nature of mandamus to prevent the leather tanneries from disposing of domestic and industrial waste and effluents in River Ganga. The Supreme Court agreed with the prayer that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness and issued guidelines for prevention of Ganga water pollution.

The Bhopal tragedy30

After the Bhopal tragedy in 1984, the legal framework was inadequate to conduct a fair trial of Union Carbide. To overcome this challenge the Union of India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 198531 making the Union of India representative of the victims by the virtue of the doctrine of parens patriae. This was then challenged in the Supreme Court.

The Court ordered Union Carbide to pay  US $470 million against all the destruction that the leak of methyl isocyanate (MIC) gas from the industrial premise.  Pathak, J. in his reasoned order said that it was the duty of the court to secure immediate relief to the victims, he applied the polluters pay principle and decided the quantum of compensation to be US $470 million.

Placing limitations on President’s rule32

S.R. Bommai was the Karnataka Chief Minister of the Janata Dal Government, which was dismissed when the President’s rule (Article 35633) was imposed in Karnataka. When the Karnataka High Court dismissed his writ petition on the same, he then moved to the Supreme Court which discussed the grounds and the extent of the imposition of the President’s rule in a State. The Supreme Court in its judgments restricted the scope of Article 356 and laid several conditions which needed to be fulfilled such as President should use Article 356 only after his proclamation has been approved by both Houses of the Parliament. In case the proclamation disapproval of both the Houses, the dismissed Government is revived at the lapses of a period of two months. Such proclamation of the imposition of President rule is subject to judicial review.

The much needed sexual harassment at work place guidelines34

A PIL was filed by a women’s rights group known as “Vishaka”, the petition has been brought as a class action by certain social activists and NGOs in reaction to an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. The Court recognising the International Conventions and norms such as the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)35, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace is against their dignity and violative of Articles 14, 15(1)36, 19(1)(g)37 and 21 of the Constitution of India. The Court opined that Sections 35437 and 354-A 38IPC, 1860 were to be referred in any case of sexual harassment but these provisions were not specific to the issue at hand. This resulted in the Supreme Court’s elaborate guidelines to keep a check on sexual harassment at workplaces. The Court stated that the guidelines are to be treated as a declaration of law in accordance with Article 141 of the Constitution until Parliament legislates on the subject.

These guidelines served their purpose for 15 long years until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 201339.

Guidelines to be followed to arrest a person40

D.K. Basu, Executive Chairman of Legal Aid Services of West Bengal, a non-political organisation addressed a letter to the Supreme Court about a news item published in The Telegraph newspaper about deaths in police custody. His letter was treated as PIL by the Supreme Court. The Court considered various international conventions such as the Universal Declaration of Human Rights,1984, the International Covenant on Civil and Political Rights, 1966; statutes such as the New Zealand Bill of Rights Act and judgments such as Miranda v. State of Arizona41.

The Court issued a list of 11 guidelines regarding the arrest of a person which were to be followed by the police before proceeding to an arrest. The Court also referred to its earlier decision in Neelabati Behera v. State of Orissa42 in which it had held that prisoners and detainees shall not be deprived of their right to liberty and only the restriction permitted by law could be imposed on the enjoyment of the fundamental rights of prisoners and detained. This case introduced “custody jurisprudence” in India. The Court also held that failure to comply with these guidelines invites not only department actions but also contempt of court proceedings against the officers.

Jain Dairy — Guidelines to free the “caged parrot43

In 1991 Ashfak Hussain, an alleged official of a terrorist organisation named Hizbul Mujahideen was arrested and interrogated regarding their funding source. He revealed the details of Surrender Kumar Jain and his brother’s involvement, subsequently when the Central Bureau of Investigation (CBI) raided their house and seized Indian and foreign currency along with two diaries. But due to political interference and pressure, the probe was left uninvestigated. In 1993 a PIL was filed by Vineet Narain demanding an honest probe in the hawala case, which had dangerous consequences for the nation’s security and finances.

The Supreme Court derisively referred to CBI as a “caged parrot”44 and directed that the Central Vigilance Commission (CVC) should be given a supervisory role over CBI. The Court using the power under Articles 32 and 142 of the Constitution of India45 issued certain guidelines to CBI and Enforcement Directorate and invented the procedure of “continuing mandamus” to bring the investigations on their proper track and to proceed expeditiously, so as to bring the guilty to book. Further, directives were issued for the establishment of nodal agency and prosecution agency for coordinated action in cases having politico-bureaucrat criminal nexus46.

A check on these government agencies was being placed by the Supreme Court to ensure that the agencies fulfil their part of legal obligation and work towards the erosion of corruption and upheld the law of the land.

The collegium system: The Second Judges case47 and the Third Judges case48

In the Second Judges case49 (1993) the Supreme Court introduced the collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the Chief Justice of India’s (CJI) individual opinion, but an institutional opinion formed in consultation with the two seniormost Judges in the Supreme Court. In the Third Judges case50 (1998), the Supreme Court on President’s reference expanded the collegium to a five-member body, comprising the CJI and four of his seniormost colleagues.

Through these cases, the collegium system of appointment of Judges was introduced by the Supreme Court which was not based on any provision in the Constitution. While Article 12451 prescribes the procedure for appointment of the Supreme Court Judges, it does not prescribe a collegium system. Yet, it is the collegium which decides the appointment of Judges. This is also a classic example of Judge-made law.

Anti-ragging guidelines52

The Supreme Court, while exercising its jurisdiction under Articles 32 and 142 of the Constitution of India, has laid down broad guidelines for colleges and educational institutes to prevent ragging. The guideline includes initiating anti-ragging movement in the colleges; undertaking from students and parents on colleges action in case of ragging incidents; redressal mechanism in case of ragging incidents; hostel accommodation of freshmen shall be carefully guarded; withdrawal of financial assistance to an institute if ragging is reported; reformative approach by police in cases dealing with ragging culprits, etc.

Preventing smoking at public places53

Since the objects of both the Acts54 dealing with the tobacco products and advertisements discussed the health effects of smoking in public places but failed to place a ban. In an attempt to protect the health of non-smokers, the Supreme Court prohibited smoking at public places and held that it is an indirect violation of the right to life of non-smokers as passive smokers who were helpless victims of air pollution caused by smoking.

Police reforms55

In 1996, retired Indian Police Service (IPS) Officer Mr Prakash Singh filed a public interest writ petition before the Supreme Court intending to free the police from the control of power wielders, primarily in relation to transfers and postings. Seven directives were issued by the Supreme Court in this regard, namely, setting up of State Security Commission (SSC); fixing the tenure and selection of the Director General of Police (DGP); a minimum tenure for the Inspector General of Police; separation of investigation and law and order functions; setting up of Police Establishment Boards; creating a Police Complaints Authority and forming a National Security Commission56. These directives pulled together the various strands of improvement generated since 1979. The Court ordered immediate implementation of the guidelines either through executive orders or new police legislation.

The Supreme Court directives to the Union and State Governments to carry out structural changes in the Police Department to insulate it from extraneous pressures and make it accountable to the people is a landmark judgment in the history of police reforms57.

Public distribution schemes matter58

A PIL was filed by the People’s Union for Civil Liberties contending that food grains which are overflowing in storage, especially of Food Corporation of India (FCI) godowns and which are abundant, should not be wasted and distributed to the below poverty line (BPL) groups. The Supreme Court had asked the Government to distribute food grains rotting in government godowns for free to the poor and hungry. Besides this, the Court

“suggested that the Government should increase the quantity of food supply to the people living below poverty line (BPL);

(ii) the Government should open the fair price shops for all the 30 days in a month;

(iii) the Government should construct at least one large Food Corporation of India godown in every State and also consider the possibility of constructing a godown in every division of every State if it was not possible to do so in every district.”59

Live-in relationships — Palimony eligibility60

The Supreme Court was hearing a dispute over maintenance between one D. Velusamy and D. Patchaiammal. The Court was dealing with the rights of an unmarried partner under the Protection of Women from Domestic Violence Act, 200561.  It held that not all live-in relationships entitle a woman to palimony and the Court laid certain criteria in order to be eligible for “palimony”.

A relationship must comply with certain conditions such as the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and, they must have voluntarily cohabited for a significant period and held themselves out to the world as being akin to spouses for a significant period of time62. The Court even went a step ahead and said that “merely spending weekends together or a one-night stand would not make it a domestic relationship”.63

Since Parliament has used the expression “relationship in the nature of marriage” and not “live-in relationship”,  the Court in the garb of interpretation laid conditions which are needed to be satisfied to get the benefit of the Act of 2005.

Legalising passive euthanasia64

Aruna Ramachandra Shanbaug worked as a nurse in Mumbai. A sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and tried to rape her, to prevent her from moving he twisted the chain around her neck. The next day, she was found lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence, the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the Constitution alleging that there is no possibility for her to revive again and get better. So she should be allowed to go with passive euthanasia and should be absolved from her pain and agony. In Aruna Shanbaug case65, the Supreme Court laid down guidelines for passive euthanasia, which provided for the withdrawal of life support system which leads to death.

Whenever any application is filed in High Court for passive euthanasia, the Chief Justice of the High Court shall constitute a Bench of at least 2 Judges in deciding such an issue. The opinion of a committee of 3 reputed doctors shall be taken by the Bench. The doctors in the Committee are to be nominated by the Bench after discussing with the appropriate medical practitioners. It is the duty of the Court to issue a notice to the State, relatives, kins and friends and also provide them with a copy of the report made by a committee of doctors. After all these procedures the Court should deliver the judgment. These guidelines shall be followed until the legislature takes up the matter66.

Even though the Supreme Court held right to die is a part of Article 2167 it later overruled it in Gian Kaur v. State of Punjab68. In the year 2018, the Supreme Court passed another order in Common Cause, A Registered Society v. Union of India69, in which the right to die with dignity was again recognised and passive euthanasia was legalised and a permit was given to withdraw the life support system of those who are terminally ill and are in lifelong coma.

Criminals out of polls70

In 2005, Lily Thomas filed a writ petition in the Supreme Court to challenge Section 8(4) of the Representation of the People Act71 which protects the convicted politicians against disqualification from contesting the elections on the ground of pending appeals against their conviction in the appellate courts72. Although initially the petition was rejected after nine years, after constant attempts, the Supreme Court Bench comprising  A.K. Patnaik and S.J. Mukhopadhaya, JJ. passed a verdict in 2013.

The 2-Judge Bench stepped into the boots of lawmaking and held that members of Parliament, Legislative Councils and Legislative Assemblies convicted of crimes where they had been awarded a minimum sentence of 2 years’ imprisonment would cease to be members of the house to which they were elected from the date of sentencing. It further struck down the provision, which allowed convicted members a 3 months’ time period for appeal against the conviction and sentencing and held that those convicted would suffer immediate disqualification. It held Section 8(4) is indeed ultra vires to the constitutional provisions.

Later in 2020, the Supreme Court in Rambabu Singh Thakur v. Sunil Arora73 passed another judgment74 whereby all candidates both at the State and Central level would have to publish their criminal records if they want to stand in elections. An earnest attempt was made by the Supreme Court to cleanse politics through its extraordinary powers.

Waiving the statutory period of divorce75

This landmark judgment was delivered by the Supreme Court wherein it was held that where the circumstances are such that continuing the ties of the marriage by applying Section 13-B of the Hindu Marriage Act, 195576, would only continue the agony of the parties, then the marriage must be dissolved and divorce must be granted to the parties. The Supreme Court by invoking their special powers under Article 142 of the Constitution, waived the statutory period of six months’ wait and granted a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. Later in 2017 in Amardeep Singh v. Harveen Kaur,77 it has been held by the Supreme Court that the period of 6 months, as mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation78.

Following Vishaka Guidelines79

After a long-running attempt in courts to tackle the problem of sexual harassment of women at work in India through Vishaka v. State of Rajasthan80, this case arose when the Vishaka guidelines were not implemented properly in many States of India. The Court stated that the guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It further issued various directives to which had to be followed by the State functionaries and private and public sector undertakings/organisations/bodies/institutions, etc. to ensure full implementation of Vishaka guidelines.

Misuse of red beacons on vehicles81

In this case, the Supreme Court gave directions to the Union Government to prevent the misuse of red beacons. The Supreme Court directed that the vehicles ferrying “high dignitaries” specified by the Central and State Governments may be fitted with red beacons but these can be used with or without flasher only when the dignitary is on duty. It had also directed the States to amend the Motor Vehicle Rules to restrict the use of the red beacon and impose an exemplary fine in case of misuse. It further held that “the use of red lights on the vehicles of public representatives and civil servants has perhaps no parallel in the world democracies.”

The NOTA case82

The People’s Union for Civil Liberties an NGO, filed a public interest litigation under Article 32 of the Constitution to challenge the constitutional validity of Rules 41(2) and (3) and 49-O of the Conduct of Elections Rules, 1961,  challenging the provision in which one wishing not to vote for any candidate had to inform the Presiding Officer. On 27-9-2013, this was held ultra vires by the Supreme Court under Article 19 of the Constitution (protection of certain rights regarding freedom of expression) and Section 12883 (maintenance of secrecy of voting) of the Representation of the People Act, 195184. The Court also directed the Election Commission to make the necessary provisions in ballot papers and electronic voting machines (EVMs) to provide a “‘None of the Above” option for voters, this was to enable voters to exercise their right not to choose a candidate while maintaining their right to secrecy.

Legal declaration on transgender community’s identity and rights

The Court declared85 that the Union and State Governments must grant recognition to the third gender in the eye of the law. Further, they should get to enjoy healthcare, education, etc. and all government documents such as ration cards, passports, etc. should recognise the third gender. It also directed the Election Commission of India to take special measures to enroll.

Directions on acid sales86

Directions were issued to curb acid sales. The Court said that acid should be sold only to people who show a valid identity card. Buyers will also have to explain why they need the chemical and sales will have to be reported to the police. The Court directed the Chief Secretaries of all States and the administrator of the Union Territories to comply with the direction given in the order and frame rules in tune with the model rules framed by the Centre to regulate the sale of acid at the earliest and possible.

Shutting liquor vends near highways87

The Supreme Court considering the increase in the number of road accidents due to driving under the influence of alcohol and negative effects of the same both to the individuals and to the society and recognising that no method of restitution through monetary instruments can undo loss and the pain of suffering, issued the directions to shut down all liquor vends like bars, restaurants, shops, etc. which are situated within 500 meters of the outer edge of national/State highways and the ban extended to highways passing through city/town. Along with it, the States were barred from granting fresh licences under Article 142 of the Constitution. The Court justified its ruling by considering various issues of drunk driving and its social, economic and legal consequences.

Guidelines on honour killings88

The Supreme Court observing the petition and data collected by an NGO in its survey against the honour killings in Haryana, Punjab and Western Uttar Pradesh has issued guidelines to check unlawful interference in the lives of interfaith and inter-caste couples by khap panchayats and further directed the State Governments to constitute special cells in each district which can be approached by the couples for their safety and well-being.

Green crackers case89

The Supreme Court applied the precautionary principle and said scientific uncertainty should not be a reason for preventing action that may cause environmental harm. Guidelines were issued on bursting of crackers during Diwali. Concept of “green crackers” was introduced.

Witness Protection Scheme90

In this case, the Supreme Court observed that there is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede and no such legislation has been brought about. Hence, the Supreme Court approved the Witness Protection Scheme, 201891 (as prepared by Union of India) and directed it to come “into effect forthwith” and that “it shall be the ‘law’ under Articles 141/142 of the Constitution, till the enactment of suitable parliamentary and/or State Legislations on the subject92.

Installation of CCTVs in the police stations93

The Supreme Court directed States and Union Territories Governments to look into the compliance on the directions issued in Shafhi Mohammad v. State of H.P.94 which directed installation of the cameras with audio devices at the police stations in their State. Further the Court held that CCTV footage shall be preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

Limit on arbitral bail conditions95

Looking at the bizarre bail conditions the Supreme Court issued a set of guidelines in order to regulate bail conditions to be imposed in cases relating to sexual offences, while setting aside a “rakhi for bail”96 condition imposed by the Madhya Pradesh High Court in a sexual harassment case97.

Judicial legislation in Covid-19

In connection with the impact of Covid-19, the Supreme Court has received a large number of petitions from individuals and organisations. Some prayers were frivolous, while others required high levels of medical or other expertise. The Supreme Court has passed very bold orders, to minimise fatalities. These orders/guidelines of the Supreme Court to ensure proper management of the Covid-19 pandemic were also a form of judicial legislation. As various petitions were filed which were either legislative or executive’s subjects, but the Supreme Court had to ultimately deal with it. In such petitions various guidelines on aspects like fixing prices of testing and kits98, guidelines for equitable distribution of essential supplies and services99, checking hoarding and illicit trade, safety and well-being of children protection homes100, healthcare professionals101, directives to the States/UTs to release prisoners on parole to decongest prisons102; guidelines to be followed for Puri Jagganath Rath Yatra103 and many more.

Judicial legislation v. Separation of power conundrum

Indian Constitution does not strictly accept the concept of separation of power, as laid down in Ram Sahib Ram Jawaya Kapur v. State of Punjab104. It has not indeed recognised the doctrine of separation of powers in its absolute rigidity105but the functions of the different parts or branches of the Government have been sufficiently differentiated.106Hence, the judiciary to indulge in lawmaking is to overstep its limitations.107 Moreover, allowing an unelected body like the judiciary to share the burden of lawmaking is always criticised as it is extraneous to that of the people’s will108.

Judicial legislation for the first time was checked by a 7-Judge Bench decision in P. Ramachandra Rao v. State of Karnataka109, wherein the Court held that giving directions of a legislative nature is not a legitimate judicial function. The Court was considering the question of whether the bar of limitation for criminal trials set by smaller Benches of the Supreme Court in “Common Cause”, A Registered Society v. Union of India110Raj Deo Sharma (1) v. State of Bihar111 and Raj Deo Sharma (2) v. State of Bihar112 were valid. The Supreme Court held that the directions given in the aforesaid decisions were invalid as they amounted to directions of legislative nature which only the legislature could give113.

Even in Bachan Singh v. State of Punjab114  a five-Judge Bench headed by  Y.V. Chandrachud, C.J. held that “We must leave unto the legislature, the things that are the legislature’s. ‘The highest judicial duty is to recognise the limits on judicial power and to permit the democratic process to deal with matters falling outside of those limits.’” Even with regard to Vishaka Guidelines115, the Court expressed its concern much later116 on being an interim Parliament.

But, in many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have a little judicial function in them. Its justification is that the other branches of Government have failed or are indifferent to the solution of the problem. Sometimes failing to circumspect and understand the thin line between law and governance.117

Hence, allegations are made now and then on the judiciary in general and the Supreme Court in particular that it has entered into the domain of the legislature and “taken over” the administration of the country. But analysing various judgments of the Supreme Court, underlying reasons for expanding judicial review and its legitimacy can be understood.

The Judge-made law can be validated when there is serious lacuna or vacuum which has to be filled and left unattended by the legislature, as even “Judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice”118. Moreover, it is  a constitutional obligation of the court to ensure justice is delivered. It is only the tradition that Judges “find” and do not “make” law119. But through interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be120.

In the same way,judicial creativity can also be justified if there is a peculiar issue at hand which has a dead end. For instance, in C. Golak Nath v. State of Punjab121, the Supreme Court has invented the doctrine of “prospective overruling” as it would have upset everything done so far in the agrarian field122. Even the basic structure123, doctrine of harmonious construction124, pith and substance125 etc., can also be categorised into this.

Laws enacted need to fulfil the needs of the people, with changing time, expanding the scope of existing provisions in the Constitution is also legitimate. For instance, in Maneka Gandhi v. Union of India126 and K.S. Puttaswamy v. Union of India127scope of Article 21 is expanded manifolds and new dimensions were mandated by the Court. Hence, by interpretative technique, the Judges not only make and state what the law is but they also assert what it ought to be128. Adding/subtracting legislation in the name of interpretation can be categorised as illegal129. Even an order “to do complete justice” under Article 142 cannot be “inconsistent with the substantive provisions of the relevant statutory laws.”130

Whether Judges find law or make the law

After analysing the above landmark judgments it can be inferred that Judges make law when there is a legal vacuum or no express principles of law. But when existing laws fail to provide all the resources to deliver justice or “complete justice”, Judges do tend to find the law within the framework of legislation through its interpretative techniques or judicial creativity and “the Judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society”131.

Impact of Judge-made law

While Judge-made law pushes the legislature to introspect on its failures, it also creates credibility and a certain sense of reliability amongst the people. On the other hand it creates a sense of uncertainty and unwanted strife between the organs of the State, Judge-made laws are against the natural justice principles which demands that the law should be known before it is enforced, decisions of Judges are not intelligible to common man and sometimes are in accordance to their subjective notions.

Dichotomy of opinion: Conservative versus Activist Judges

The activist approach to the Judicial legislation suggests that interpretation of the constitutional and statutory provisions in such a way to meet the then contemporary needs or to lay down a new law, be it procedure or substantive, through in the form of guidelines or orders. In contrast, in the conservative/traditional approach to the judicial legislation suggests, the judiciary not willing or stepping into the legislative domain to interpret the constitutional provisions and statutes irrespective of needs in the system. The process of making law by Judges is also one of the many forms of judicial activism, and traditional approach to this can be put it loosely as judicial passivism.

For example, by analysing these two judgments, contrast of opinion can be understood: In Madhuri Patil v. Commr., Tribal Development132 K. Ramaswamy, J.  issues 15 guidelines to prevent fraudulent and fabricated certificates being made by the forward communities to reap the benefits which were allocated to the reserved communities. Later in Dayaram v. Sudhir Batham133 doubted the correctness of the said judgment but  R. Raveendran, J. speaking for the Bench came to a conclusion holding that they were not taking over the functions of the legislature but merely filling up the vacuum till legislature chose to make an appropriate law.

In contrast, in Rajesh Sharma v. State of U.P.134, a two-Judge Bench of the Supreme Court held that Section 498-A IPC135 was being misused by vindictive wives and 8 directives were issued. The very first directive was that in every district in India a Family Welfare Committee should be set up by the District Legal Services Authority, and all complaints under Section 498-A should be referred to it, and no arrest should be made before receiving its report. Since there is no such law for setting up family welfare committees, the 3-Judge Bench of Supreme Court in Social Action Forum for Manav Adhikar v. Union of India136, set aside the abovementioned directive of the two-Judge Bench.

The reason held is that the Court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary, and the matters of policy should be left for the elected representatives of people to decide and no direction can be issued by the Court.

 Reasoning from Activist Judges on judicial legislation

Judges Views on judicial legislation
Justice

V.R. Krishna Iyer137

“The Judge is not a mimic. The greatness of the Bench lies in creativity….To meet the needs of the society, the Judges do make law and it is now recognised everywhere that Judges take part in this law-making function and, therefore, Judges make law.”
Justice

P.N. Bhagwati138

“There is no need for Judges to feel shy or apologetic about the law creating roles….Lawmaking is an inherent and inevitable part of the judicial process….There is bound to be a gap between the generalities of law and the specifics of life…thus making and moulding the law he takes part in the work of creation.”
Justice

K. Ramaswamy139

“The role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.”
Justice Kurian Joseph140

 

“I would like to sum up stating that judicial legislation is not necessarily an innovative role of an activist Judge, it is the solemn duty or role or function of Judge who has taken oath under the Constitution of India to uphold it…. He shall not non-suit a person crying for justice taking a technical approach that there is no enacted law to be applied in the given circumstances.”

Reasoning from traditional Judges on judicial legislation

Judges Views on judicial legislation
Justice Pathak141 “the Court must never forget that its jurisdiction extends no farther than the legitimate limits of its constitutional powers and avoid trespassing into political territory … excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions”.
Justice Y.V.Chandrachud142 “The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits.”
Justice MarkandeyKatju143 “Judges ought to know their limits and must not try to run the Government; they must have modesty and humility, and not behave like emperors.”

 

Justice S.B. Sinha144

 

 

 

“The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.”

By comparing traditional and activist Judges, we can come to a conclusion that even in traditional Judges there is acceptance to judicial legislation to some extent, and which some Judges term it as legitimate judicial legislation145. Nonetheless, when it comes to the vacuum which needs to be filled, Judges did not hesitate in using their legislative powers.  At the same time when there is a blank wall, courts were not reluctant to lay new doctrines/guidelines to cross the obstacles. The fundamental difference is that there is a tendency amongst activist Judges to pass orders which tend to cobble with policy decisions and lay guidelines which are sometimes against the statute laid. While traditional Judges refrain to comment on policy decisions and passing orders when there is a statute even sometimes ineffective to meet the needs.

Executive and legislature criticism on judicial legislation

For instance, if we look at the Supreme Court’s order in People’s Union for Civil Liberties v. Union of India146 against corruption in the Food Corporation of India, the Union Agriculture Minister, Sharad Pawar reacted147 by sayings that it was not possible to implement the “suggestion” made. The Supreme Court made it very clear that it did not make a “suggestion to the Government; it was an “order”148. The then Prime Minister Manmohan Singh said that the Supreme Court should refrain from interfering in policy issues149.

Similar criticism can be observed when the Supreme Court has directed the interlinking rivers in India150. In 1993, the Court’s order to conduct military operations in Hazratbal, Kashmir received a lot of criticism. Commenting on this, an Army General wrote: “for the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation”. On the same lines, the Supreme Court’s order to Jharkand Assembly to conduct a motion of confidence and not to entertain any other business was criticised by the legislators as against the Article 212 of the Constitution151 which states that courts are not to inquire into any proceedings of the legislature152.

Even former Union Finance Minister, Mr Arun Jaitley vehemently criticised on this issue. In his words:

I have often heard (the) argument that judicial activism is born out of a phenomenon that when other institutions are not doing their job, somebody has to fill the gap. It is a flawed argument. It is flawed because if any organ of the State is not doing its duty, it can be directed to do its duty. Usurpation of power… by any other organ would never be the correct constitutional approach. What if the same argument was used the other way round against the judiciary? Arrears are pending, Judges are not doing the job. So must somebody step in and now exercise that power? The answer is no… And therefore, it is extremely important that the dividing line on separation of powers is maintained. And therefore, by creating arguments, the thin dividing line itself cannot be lost.153

Beneficiaries’ response on judicial legislation

Whether a law is passed through legislative route or from a judicial court, ultimately it is the people’s welfare which is relevant and should be predominant and not Montesquieu’s 18th century treatise on separation of powers154. Judge-made law has touched the lives of millions, it is because of this belief that people even today run to the courts when there is a mess. In many instances because of this trust, the Supreme Court was the first to be approached; this in many ways burdened the court and even led it to adventure in unwarranted domains. Time and again the Supreme Court saved the supreme aspirations of this nation’s founding fathers and mothers. Perhaps it is the Supreme Court which has transfused the vision of our Constituent Assembly.

Conclusion

“It is indeed possible to characterise with precision that (any particular) agency of the State is executive, legislative or judicial, but it cannot be predicted that a particular function exercised by any individual agency is necessarily of the character which the agency bears”155. Hence, every agency is under the Constitution, even Judges are under the Constitution, but Constitution is what Judges say156.

“Like it or not, the balance of constitutional power will remain in favour of the courts, but only so long as our Judges are perceived to be persons of exceptional competence and of high moral integrity. If that perception changes (God forbid), the constitutional system as it now operates will breakdown”157.

It is, therefore, necessary for academicians, lawyers and Judges to re-examine the roles postulated by the Constitution for the three wings of the State. If the Judges legitimately legislate and the Constitution recognises judicial legislation, then the limits to judicial legislation shall also be explored and reasoned out. Even if it is welcomed should it be permanent or interstitial should also be considered. Alike judicial review, Judge-made law shall also have to satisfy legitimacy. Ultimately Judges are not legislators, but finishers, refiners and polishers of legislation158.


*Professor at University College of Law, Osmania University, Hyderabad.

**Final year student at University College of Law, Osmania University, Hyderabad. Author can be reached at mrpavankasturi@gmail.com.

1I.P. Massey, Administrative Law (2005).

2Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 SCC 67.

3Constitution of India, Art. 13.

4Constitution of India, Art. 32.

5Constitution of India, Art. 226.

6Constitution of India, Art. 227.

7Constitution of India, Art. 141.

8Constitution of India, Art. 144.

9 Mohit Sharma, Judicial Legislation: Whats’ The LakshmanRekha!, 10-12-2021, <https://www.livelaw.in/judicial-legislation-whats-lakshman-rekha/> (last accessed on25-6-2021).

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

11Constitution of India, Art. 14.

12Constitution of India, Art. 21.

13S.K. Verma and Kusum, Fifty years of the Supreme Court of India: Its Grasp and Reach (2001).

14Justice R.C. Lahoti, ILI Foudation Day Lecture on “Law and Social Dynamics” ILI News Letter 5-10 (2004).

15Cornell Law Review, Vol. 45, Spring 1960, p. 3.

16 Markandey Katju, Can Judges Legislate? The Supreme Court Sets the Record Straight, The Wire, <https://thewire.in/law/can-judges-legislate-the-supreme-court-sets-the-record-straight>, (last accessed on  25-6-2021.).

17Markandey Katju, Roscoe Pound and Sociological Jurisprudence, (1986) 1 SCC J-21.

18 Schools of Jurisprudence, <http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/16.%20Schools%20of%20Jurisprudence.pdf>, (last accessed on 25-6-2021).

19V.D. Mahajan, Jurisprudence and Legal Theory, EBC Webstore, 5th Edn., p.201.

20Rudul Sah v. State of Bihar, (1983) 4 SCC 141.

21Rudul Sah v. State of Bihar, (1983) 4 SCC 141.

22A.R. Blackshield, Tortious Liability of Government: A Jurisprudential Case Note, Journal of the Indian Law Institute, Vol. 8, No. 4 (October-December 1966), pp. 643-659.

23AIR 1965 SC 1039.

24(1983) 4 SCC 141, 147-148, para 10.

25Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244.

26Guardians and Wards Act, 1890, S. 8.

27Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244.

281981 SCC OnLine Guj 91.

29M.C. Mehta (2) v. Union of India, (1988) 1 SCC 471.

30Union Carbide Corpn. (2) v. Union of India, (1989) 2 SCC 540.

31Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985.

32S.R Bommai v. Union of India, (1994) 3 SCC 1.

33Constitution of India, Art. 356.

34Vishaka  v. State of Rajasthan, (1997) 6 SCC 241.

35CEDAW, <https://www.iimb.ac.in/sites/default/files/inline-files/iim-visakha-guidelines.pdf>, (last visited 7-7-2021).

36Constitution of India, Art. 15(1).

37Constitution of India, Art. 19(1)(g).

37Penal Code, 1860, S. 354.

38Penal Code, 1860, S. 354-A.

39Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

40D.K. Basu v. State of W.B., (1997) 1 SCC 416.

411966 SCC OnLine US SC 112 : 16 L Ed 2d 694 : 384 US 436 (1966).

42(1993) 2 SCC 746.

43Vineet Narain v. Union of India, (1998) 1 SCC 226.

44Abinav Garg, Nothing has Changed Since 1997 Judgment, Vineet Narain says, Times of India, 10-5-2013, <https://timesofindia.indiatimes.com/india/nothing-has-changed-since-1997-judgment-vineet-narain-says/articleshow/19978247.cms>, (last accessed on2-7-2021).

45Constitution of India, Art. 142.

46Vineet Narain v. Union of India, (1998) 1 SCC 226.

47Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441.

48Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739.

49Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441.

50Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739.

51Constitution of India, Art. 124.

52Vishwa Jagriti Mission v. Central Govt., (2001) 6 SCC 577.

53Murli S. Deora v. Union of India, (2001) 8 SCC 765.

54Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975 and

Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001.

55Prakash Singh v. Union of India, (2006) 8 SCC 1.

56Divya Trivedi, Efforts to Implement Supreme Court Directives on Police Reforms “Largely Regressive”, The Frontline, <https://frontline.thehindu.com/dispatches/states-efforts-to-implement-supreme-court-directives-on-police-reforms-largely-regressive/article32684870.ece>, (last accessed on26-6-2021).

57Prakash Singh v. Union of India, (2006) 8 SCC 1, 8, para 7.

58People’s Union for Civil Liberties v. Union of India, (2010) 14 SCC 611.

59People’s Union for Civil Liberties v. Union of India, (2010) 14 SCC 611.

60D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

61Protection of Women from Domestic Violence Act, 2005.

62 Manju Jamwal, Live-In Relationships in India, Legal Moves and Judicial Attitude, RGNUL Law Review,<https://www.rgnul.ac.in/PDF/d0fb7efc-5940-42a4-980f-7e5c2d565c44.pdf>, (last visited 7-7-2021).

63D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, para 31.

64Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454.

65(2011) 4 SCC 454.

66Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454, 522, para 134.

67P. Rathinam v. Union of India, (1994) 3 SCC 394.

68(1996) 2 SCC 648.

69(2006) 9 SCC 295.

70Lily Thomas v. Union of India, (2013) 7 SCC 653.

71Representation of the People Act, 1951, S. 8(4).

72Remembering Adv. Lily Thomas, Supreme Court’s Seniormost Woman Advocate, SCC OnLine Blog, 10-12-2019, <https://www.scconline.com/blog/post/2019/12/10/remembering-adv-lily-thomas-supreme-courts-senior-most-woman-advocate/> (last accessed 26-6-2021).

73(2020) 3 SCC 733.

74Public Interest Foundation v. Union of India, (2019) 3 SCC 224.

75Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580.

76Hindu Marriage Act, 1955, S. 13-B.

77(2017) 8 SCC 746.

78 Lucy Rana, India: Six months waiting period Section 13B (2) of Hindu Marriage Act for Divorce by mutual consent not Mandatory, Lexology, <https://www.lexology.com/library/detail.aspx?g=ec2ad7bb-cca0-4d40-aec9-98d5afc50daa>(last accessed on28-6-2020).

79Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297.

80(1997) 6 SCC 241.

81Abhay Singh v. State of U.P., (2013) 15 SCC 435.

82People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1.

83Representation of the People Act, 1951, S. 128.

84 Richa Mishra, NOTA as a Right!, The Hindu, 29-4-2019, <https://www.thehindubusinessline.com/opinion/columns/nota-as-a-right/article26983554.ece>, (last accessed on2-7-2021).

85National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

86Laxmi v. Union of India, (2014) 4 SCC 427.

87State of T.N. v. K. Balu, (2017) 2 SCC 281.

88Shakti Vahani v. Union of India, (2018) 7 SCC 192.

89Arjun Gopal v. Union of India, (2019) 13 SCC 523.

90Mahender Chawla v. Union of India, (2019) 14 SCC 615.

91Witness Protection Scheme, 2018.

92SC Approves Witness Protection Scheme, SCC OnLine Blog, (7-12-2018), <https://www.scconline.com/blog/post/2018/12/07/sc-approves-witness-protection-scheme-2018-directs-setting-up-of-vulnerable-witness-deposition-complexes-in-all-district-courts/> (last accessed on 7-7-2021).

93Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184.

94(2018) 5 SCC 311.

95Aparna Batt v. State of M.P., 2021 SCC OnLine SC 230.

96Vikram v. State of M.P., 2020 SCC OnLine MP 3171.

97Leah Verghese, The Trend of Bizarre Bail Conditions, Live Law, https://www.livelaw.in/columns/trend-of-bizarre-bail-conditions-173453, (last accessed on 6-6-2021).

98Shashank Deo Sudhi v. Union of India, (2020) 5 SCC 132.

99Distribution of Essential Supplies and Services During Pandemic, In re, 2021 SCC OnLine SC 355.

100Contagion of Covid-19 Virus in Children Protection Homes, In re, (2020) 15 SCC 280.

101Jerryl Banait v. Union of India, 2020 SCC OnLine SC 357.

102Contagion of Covid 19 Virus in Prisons, In re, 2020 SCC OnLine SC 365.

103Odisha Vikash Parishad v. Union of India, (2020) 7 SCC 264.

104AIR 1955 SC 549.

105Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195.

106Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 SCC 312.

107Upendra Baxi, On the Shame of Not Being an Activist: Thoughts on Judicial Activism, (1984) 11 Ind. B. Rev. 259,    265.

108William S. Blatt, The History of Statutory Interpretation: A Study in Form and Substance, (1985) 6 Cardozo L. Rev. 799.

109(2002) 4 SCC 578.

110(1996) 4 SCC 33.

111(1998) 7 SCC 507.

112(1999) 7 SCC 604.

113Adjudication by the Indian Supreme Court: Doing Statutory Interpretation or Making Judicial Legislation — A Critique, (2011) PL January 12.

114(1980) 2 SCC 684, 741, para 175.

115Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

116University of Kerala v. Council of Principals of Colleges, (2009) 16 SCC 712.

117 S.H. Kapadia, Judges Should Not Sit as “Super Legislature”: CJI, Hindustan Times, 16-4-2011, <https://www.hindustantimes.com/delhi/judges-should-not-sit-as-super-legislature-cji/story-wd0GjOVjD88IMY06HyPp7J.html>, (last accessed on7-7-2021).

118Lord Denning, “Freedom under the Law”, The Hamlym Lectures (1949).

119Justice Kurian Joseph, Judicial Legislation, (2016) 2 SCC J-18.

120Justice Kurian Joseph, Judicial Legislation, (2016) 2 SCC J-18.

121AIR 1967 SC 1643.

122 V.D Mahajan, Jurisprudence and Legal Theory, EBC Webstore, 5th Edn., p.215.

123Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225.

124Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

125State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

126(1978) 1 SCC 248.

127(2017) 10 SCC 1.

128Siva Kumar, Journal of the Indian Law Institute, Vol. 58, No. 3 (July – September 2016), pp. 273-312.

129Avi Tandon and Sunny Shah, Adjudication by the Indian Supreme Court: Doing Statutory Interpretation or Making Judicial Legislation — A Critique, (2011) PL January 12.

130Prem Chand Garg v. Excise Commr., AIR 1963 SC 996.

131P.N. Bhagwati, Judicial Activism in India <https://media.law.wisc.edu/m/4mdd4/gargoyle_17_1_3.pdf> (last accessed on19-6-2021).

132(1994) 6 SCC 241.

133(2012) 1 SCC 333.

134(2018) 10 SCC 472.

135Penal Code, 1860, S. 498-A.

136(2018) 10 SCC 443.

137 Esha Saha, Judicial Legislation – Boon or Bane?, Live Law, 18-7-2013, <https://www.livelaw.in/judicial-legislation-boon-or-bane/>, (last accessed on29-6-2021)

138P.N. Bhagwati, Judicial Activism in India <https://media.law.wisc.edu/m/4mdd4/gargoyle_17_1_3.pdf> (last accessed on 19-6-2021).

139C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457.

140Justice Kurian Joseph, Judicial Legislation, (2016) 2 SCC J-18, 26-27.

141Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

142Bachan Singh v. State of Punjab, (1980) 2 SCC 684, 741, para 175.

143Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.

144Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408, 426, 427, para 38.

145Markandey Katju, Can Judges Legislate? The Supreme Court Sets the Record Straight, The Wire, <https://thewire.in/law/can-judges-legislate-the-supreme-court-sets-the-record-straight>, (last accessed on 25-06-2021).

146(2010) 14 SCC 611.

147Dhananjay Mahapatra, Distribution of Foodgrains an Order, Not a Suggestion, SC Pulls up Pawar, Times of India (31-8-2010), <http://timesofindia.indiatimes. com/india/Distribution-of-food-grains-an order-not-a-suggestion-SC-pulls-up-Pawar/ articleshow/6467212.cms>(last accessed on 4-11-2021).

148Agarwal, Anurag K., Judicial Legislation and Judicial Restraint, Economic and Political Weekly, Vol. 46, No. 1, 2011, pp. 22-24, JSTOR,<www.jstor.org/stable/27917983>(accessed on 29-6-2021).

149 Siddharth, Order on free grain to poor can’t be executed, says Manmohan Singh, The Hindu, (6-9-2010),  https://www.thehindu.com/news/national/Order-on-free-grain-to-poor-cant-be-executed-says-Manmohan-Singh/article15906394.ece, (last accessed on17-7-2021).

150Amitha Bhaduri, Citizens Voice Alarm over Recent Supreme Court Judgment on Interlinking of Rivers, India Water Portal (27-2-2012), <https://www.indiawaterportal.org/articles/citizens-voice-alarm-over-recent-supreme-court-judgement-interlinking-rivers>, (last accessed on7-7-2021).

151Constitution of India, Art. 212.

152T.R. Andhyarujina, Disturbing Trends in Judicial Activism, The Hindu, (6-8-2012), <https://www.thehindu.com/opinion/lead/Disturbing-trends-in-judicial-activism/article12680891.ece>, (last accessed 7-7-2021).

153Ananthakrishnan G., National Law Day: Judicial Activism Based on Flawed Premise, says Arun Jaitley, (26-11-2017), The Indian Express, <https://indianexpress.com/article/india/national-law-day-judicial-activism-based-on-flawed-premise-says-arun-jaitley-4954840/, (last accessed on 7-7-2021).

154Soli J. Sorabjee,  Judicial Activism — Boon or Bane?, (2008) 3 SCC J-24.

155Jayantilal Amratlal Shodhan v. F.N. Rana, AIR 1964 SC 648, para 11.

156Justice Charles Evans Hughes.

157Fali S. Nariman, A Question of the Right Balance, The Hindu, 15-8-2007, <http://www. hinduonnet.com/af/india60/stories/ 2007081550270800.htm> (last accessed on 4-11-2010).

158Corocraft Ltd. v. Pan American Airways Inc., (1969) 1 QB 616 : (1968) 3 WLR 1273 (CA).

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Vivek Rusia and Rajendra Kumar Verma, JJ. took up a bunch of petitions which had similar facts that the petitioners were owners of agricultural land that came under the acquisition for construction of 12 lanes Delhi-Mumbai Expressway i.e. NH-148N under the provisions of the National Highways Act, 1956 (‘the NH Act of 1956’).

The petitioners being the landowners submitted objections before the competent authority i.e. SDO (Revenue). The competent authority in pursuant to sub-section 1 of section 3D of the NH Act submitted its report to the Central Government. Thereafter Central Government had published a notification under section 3D of the NH Act on 22-12-2018 that the land should be acquired for the construction of NH 148N i.e. the purpose mentioned in section 3A(1) of the NH Act. By virtue of sub-section (2) of section 3D of the NH Act the land has been vested in the Central Government. Proceedings for determining the compensation payable to the landowners under the provisions of the new Land Acquisition Act i.e. The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (‘the Act of 2013’) begun thereafter.

The controversy involved in these petitions was as to what would be an appropriate factor by which market value of land was to be multiplied to assess the compensation in the case where the land was situated in the rural area?

It was noted that in the present case, all the lands of the landowners were situated within the rural area. In the case of the rural area, the factor by which the market value was to be applied would be between 1.00(one) to 2.00(Two) based on the distance of the project from the urban area, as may be notified by the appropriate Government.

The Court reiterated that the Central Government has acquired the land of petitioners and others for NHAI for the construction of the national highway. Under section 3A of the NH Act if the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.

The national highway is a central Government project undertaken by the NHAI for which the land situated in the State of M.P. has been acquired, meaning thereby for the project of central Government land situated in the State of M.P. are being acquired. As per the definition under section 2(b) of the Act of 2013 the State Government would be the appropriate Government in relation to the acquisition of land situated within the territory of State. The Central Government would be the appropriate government in relation of acquisition of land situated within Union territory except for Pondichery and in relation to acquisition of land for the public purpose in more than one State, the Central Government shall consult with the concerned State Government or the Union territory and under section 2(e)(v) of the Act of 2013 in relation to the acquisition of land for the purpose of the Union, as may be specified by notification, the appropriate Government would be the Central Government.

The Court found that the Central Government has issued a notification prescribing the factor 2.00(two) whereas State of M.P by way of impugned notification dated 29-9-2014 had fixed the multiplier 1.00(one) but the NHAI which was the instrumentality of the Central Government, therefore, by virtue of 2(e)(v) of Act of 2013 the Central Government shall be the appropriate Government, hence the notification dated 9-2-2016 issued by the Central Government would apply.

Since the petitioners had already preferred appeals before the Arbitrator u/s 3G(5), therefore, the Court stated that it is for the Arbitrator to consider and decide the multiplier in view of the findings given hereinabove instead of setting aside the award and remanding the matter to the competent authority.[Badrilal Dhakad v. Union of India, 2022 SCC OnLine MP 280, decided on 27-01-2022]


o Shri Piyush Mathur Senior Advocate with Shri Harshwardhan Sharma for the petitioners.

o Shri Jasneet Singh Hora counsel for the petitioners.

o Smt.Anita Sharma and Shri Tejas Sharma for the National Highway Authority.

o Shri Vivek Dalal AAG and Shri Aditya Garg, GA for the respondent/State.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai*, JJ has held that the conduct of Andhra Pradesh DISCOMS, which are instrumentalities of the State, of purchasing the power at a higher rate is contrary to public interest.

 DISCOMS,   lies   in purchasing the power at the rate of Rs.3.82 per unit from HNPCL or by purchasing it at the rate of Rs.4.33 per unit from KSK Mahanadi.

An initial PPA was entered into between Andhra Pradesh State Electricity Board (APSEB) and Hinduja   National Power Corporation Limited (HNPCL) on 9th  December, 1994. On 25th July, 1996, the Central Electricity Regulatory Commission (CERC) granted a Techno Economic Clearance for the power project for an estimated cost of Rs.4628.11 crores.

From the year 2012 onwards till January, 2018, it was the consistent stand of the State of Andhra Pradesh as well as the APDISCOMS that it would be purchasing 100% power generated from the project of HNPCL.  Application for grant of approval to the Continuation Agreement dated 28th  April,   2016   with the Amended and Restated PPA of 1998 was filed by the DISCOMS.  The matters were heard finally on 15th May, 2017 and closed for orders. However, for some unknown reasons, things turned topsy-turvy between 15th  May, 2017 and 4th  January, 2018, on which date, the DISCOMS did a somersault   and filed applications for withdrawal of the aforementioned application.

Holding that DISCOMS could not be permitted to change the decision at their whims and fancies and, particularly, when it is adversarial to the public interest and public good, the Court observed that every decision of the State is required to be guided by public interest and the power is to be exercised for public good.

“For reasons unknown, the DISCOMS took a decision to resile from their earlier stand, due to which, not only the huge investment made by HNPCL would go in waste, but also valuable resources of the public including thousands of acres of land would go in waste.”

The Court observed that DISCOMS are instrumentalities of the State and as such, a State within the meaning of Article 12 of the Constitution of India.

“Every action of a State is required to be guided by the touch¬stone of non-arbitrariness, reasonableness and rationality. Every action of a State is equally required to be guided by public interest. Every holder of a public office is a trustee, whose highest duty is to the people of the country.”

Stating that the acts done by the DISCOMS, are acts, which have been done wrongfully and wilfully without reasonable and probable cause, affecting public interest and public good, without there being any rational or reasonable basis for the same, the Court asked,

“… whether public interest, which is so vociferously pressed into service in the present matter by the   DISCOMS, lies in purchasing the power at the rate of Rs.3.82 per unit from HNPCL or by purchasing it at the rate of Rs.4.33 per unit from KSK Mahanadi. We strongly deprecate such a conduct of the appellants – DISCOMS, which are instrumentalities of the State.  The appellants – DISCOMS, rather than acting in public interest, have acted contrary to public interest.”

The Court, hence, imposed a cost of Rs. 5 lakhs and directed that the DISCOMS shall forthwith start purchasing the power from HNPCL at the rate of Rs.3.82 per unit.

[Southern Power Distribution Power Company Limited of Andhra Pradesh v. Hinduja National Power  Corporation Limited, 2022 SCC OnLine SC 133, decided on 02.02.2022]


*Judgment: Justice BR Gavai


Counsels

For appellants: Senior Advocate C.S.   Vaidyanathan,

For HNPCL: Senior Advocates Dr. Abhishek Manu Singhvi and M.G. Ramachandran

Case BriefsSupreme Court

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

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

Factual Backdrop

A complaint was made by the respondent 4-complainant under Sections 3 & 4 read with Section 19(1)(a) of the Competition Act, 2002 with regard to invitation of expression of interest (EOI) issued by State of Mizoram through respondent 2, the Director, Institutional Finance and State Lottery inviting bids for the appointment of lottery distributors and selling agents for state lotteries.

The complainant contended before the Competition Commission of India (CCI) that there was bid rigging and a collusive bidding process which violated Section 3(1) read with Section 3(3) of the Competition Act, and also caused grave financial loss to the State of Mizoram. The allegation was also made against the State that it had abused its dominant position as administrator of State lotteries, by requiring distributors to furnish exorbitant sums of money towards security, advance payment, and prize pool even before the lotteries were held which was in contravention to Section 4 of the Competition Act.

Action Taken by the CCI

The CCI found that prima facie, there were evidence of cartelisation and bid rigging in contravention of Section 3(1) read with Section 3(3) of the Competition Act. However, the CCI opined that no case was made out against respondent the State as it could not be considered as an ‘enterprise’ or a ‘group’ under the Competition Act. The CCI opined that the State’s role was to regulate and monitor the business of lotteries in the State of Mizoram in exercise of its powers and functions under the Mizoram Lotteries (Regulation) Rules, 2011 framed under the Lotteries (Regulation) Act, 1998. The CCI, thus, rejected the complaint under Section 4 of the Competition Act.

However, with regard to private respondents, CCI required the Director General (DG) to conduct an investigation into the matter. Pursuant to which the DG report revealed that the respondent 5 and 6 along with M/s. Teesta Distributors and M/s. E-Cool Gaming Solutions (P) Ltd. had colluded, formed a cartel, and indulged in bid rigging in violation of Sections 3(1) and 3(3) of the Competition Act. Consequently, the CCI by its order dated 12-02-2013 send copies of the DG report to the parties seeking objections/replies thereto.

Intervention by the High Court

The Bench observed that surprisingly the State had approached the Gauhati High Court challenging both the report of the DG and the CCI’s order for making adverse observations despite the fact that the complainant had failed to establish a prima facie case under Section 4 of the Competition Act. The Bench remarked,

“We say ‘surprisingly’, because if at all, the grievance could have been of respondent 2 qua the observations made, but could not have been of State… In fact, Section 4 proceedings against respondent 1 were already closed.”

The High Court, however, chose to pass an interim order to stay further proceedings before the CCI. Subsequently, by the impugned order the High Court relied on Union of India v. Martin Lotter Agencies Ltd., (2009) 12 SCC 209,  to hold that lotteries, being akin to gambling activities, came under the purview of the doctrine of res extra commercium. The High Court opined that since the Competition Act was applicable to legitimate trade and goods, and was promulgated to ensure competition in markets that are res commercium, the CCI did not have jurisdiction to entertain the complaint of respondent  4.

Whether distribution of lotteries amounts to “Service”?

With regard to the respondents’ claim that they were merely a distributor which did not provide any services to any potential user of lottery and such distribution did not constitute a service under Section 2(u) of the Competition Act, the Bench held that the expansive definition of ‘Service’ under Section 2(u) of the Competition Act means “service of any description”, which is to be made available to potential users. Holding that the purchaser of a lottery ticket is a potential user and a service is being made available by the selling agents in the context of the Competition Act, the Bench concluded that the inclusive mentioning does not inhibit the larger expansive definition.

CCI’s Jurisdiction to entertain issues relating to lotteries

On the contention that Section 3(1) of the Competition Act would have no application as there was no “goods” or “provisions of services” which could give rise to the CCI’s jurisdiction, specifically because lottery tickets were not goods and there was no provision of any services, the Bench observed that lotteries may be a regulated commodity and may even be res extra commercium; that would not take away the aspect of something which is anti-competition in the context of the business related to lotteries. Hence, the Bench concluded,

The lottery business can continue to be regulated by the Lotteries (Regulation) Act, however, if in the tendering process there is an element of anti-competition which would require investigation by the CCI, that cannot be prevented under the pretext of the lottery business being res extra commercium, more so when the State Government decides to deal in lotteries.

Findings and Conclusion

Finding the conduct of the State “very non-appreciable” and intervention by the High Court “extremely premature”, the Bench stated that the State ought to have cooperated with the CCI and the High Court ought to have waited for the CCI to come to a conclusion but on the other hand what had happened was that the CCI proceedings had been brought to a standstill while the High Court opined on the basis of some aspects which may or may not arise. The Bench remarked,

“A simple aspect of anti-competitive practices and cartelisation had got dragged on for almost ten years in what appears to be a mis-application by the High Court of the interplay of the two Acts, i.e., the Competition Act and the Regulation Act.”

Hence, holding that the proceedings before the CCI ought to have been permitted to conclude with the right available to the affected parties to avail of the appellate remedy under Section 53B of the Competition Act, the Bench set aside the impugned judgment and directed to close the proceedings in the case filed by the State while the proceedings against the other parties were directed to continue.

[CCI v. State of Mizoram, 2022 SCC OnLine SC 63, decided on 19-01-2022]


*Judgment by: Justice Sanjay Kishan Kaul


Appearance by:

For the CCI: Rajshekhar Rao, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr Dhananjaya Y Chandrachud and M. R. Shah*, JJ., held that equation of posts and salary is a complex matter which should be left to the expert body and undertakings. Opining that granting of pay parity by the Court may result in a cascading effect having adverse consequences on employer, the Bench reminded,

 “There are limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’.”

The instant appeal was filed against the order of Gujarat High Court in Letters Patent Appeal by which the High Court had quashed and set aside the judgment and order passed by the Single Judge whereby the Single Judge had held that the appellants were entitled to the pay scale of Rs.950-1500 with all consequential benefits upon completion of 10 years of service and revised pay scale as per 5th, 6th and 7th Pay Commission scales.

Background

With a view to resolve the issue relating to service condition of daily wagers engaged in maintenance and repairing work a committee called ‘Shri Daulatbhai Parmar Committee’ was constituted under the Chairmanship of the then Minister of Roads and Building Department–Shri Daulatbhai Parmar. On the recommendation of Parmar Committee, the Government of Gujarat passed a Resolution dated 17-10-1988 to give certain benefits to the skilled daily wager workmen depending upon the period of services undergone, i.e. less than 5, 5 or more or 10 years.

That the Respondent–Gujarat Water Supply and Sewerage Board adopted the said Government Resolution by way of communication dated 08-06-1989 and accordingly, all the daily rated employees working with the Board including the original petitioners were granted the benefit of the pay scales of Rs.750 and other benefits upon their completion of 5 years services.

The Bone of Contention

Noticeably, the Government issued subsequent Resolutions dated 01-05-1991 and 15-02-1992 by which certain modifications were carried out in the parent Resolution dated 17-10-1988 and it was provided that such daily wagers who were SSC passed and had completed 7 years, the Department would assign administrative work of clerical cadre Class III and they should be paid pay scale of Rs.950-1500 from the date of assignment of duty.

The appellants–daily rated employees were claiming the benefit flowing from the aforesaid subsequent Government Resolutions mainly on the ground that other similar daily rated employees had been granted the benefit and therefore not extending such benefits to other daily rated employees was discriminatory and violative of Article 14 of the Constitution.

Factual Analysis

Evidently, the Board never adopted the subsequent Resolutions while the parent Resolution was specifically approved by the Board vides communication dated 08-06-1989. On the contrary the administrative instructions vide communication dated 29-08-1991 were issued to all the Chief Engineers of zonal offices that benefits pursuant to Government Resolution of 1991 were not to be granted to the daily rated employees of the Board.

Therefore, the Bench was of the view that as such the Board which is an autonomous and statutory body created under the Gujarat Water Supply and Sewerage Board Act, 1978 never adopted the subsequent Government Resolutions and unless the said Resolutions were adopted by the Board, the daily rated employees working with the Board shall not be entitled to the benefits flowing from the subsequent resolutions.

Upholding the decision of the Division Bench, the Court held that daily rated employees of the Board cannot claim the benefits from the Resolutions of 1991 and 1992 as a matter of right as they do have any right to get the benefits flowing from the aforesaid Resolutions till specifically adopted by the Board like adoption of the parent Resolution dated. The Bench stated,

“There shall not be automatic adoption and/or applicability of the subsequent resolutions.”

The Bench added, the Board is an independent entity and it might have its own financial capacity and therefore its employees cannot claim parity with the employees of the State Government. The State Government and the autonomous Board/bodies cannot be put at par as the Board has to depend upon their own financial resources and it is ultimately for the Board to take a conscious decision which can be termed as a policy decision on the pay scales to be adopted and/or certain benefits which would have financial implications. Everything depends upon its economic viability or the financial capacity, otherwise the unit itself may not be able to function and may have to close down inevitably and have disastrous consequences for the employers themselves.

Conclusion

In the above backdrop, the Bench opined that the daily rated employees of the Board cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit as Article 14 cannot be invoked to perpetuate illegality and irregularity. Accordingly, it was held that the Single Judge erred in directing the Board to grant the benefits flowing from the subsequent Government Resolutions which was rightly set aside by the Division Bench of the High Court.

[Rajesh Pravinchandra Rajyaguru v. Gujarat Water Supply & Sewerage Board, CIVIL APPEAL NO. 7578 OF 2021, decided on 17-12-2021]


Kamini Sharma, Editorial Assistant has pit this report together


Appearance by:

For the Original Petitioners: Sanjay Parikh, Senior Counsel

For the Board: Aastha Mehta, Advocate


*Judgment by: Justice M.R. Shah

Case BriefsSupreme Court

Supreme Court: In a case where process of cancellation of a tender was initiated without affording a chance to be heard to the lessees and the tender was cancelled “because of the possibility of larger profits”, the 3-judge bench of NV Ramana*, CJ and Vineet Saran and Surya Kant, JJ has held that when a contract is being evaluated, the mere possibility of more money in the public coffers, does not in itself serve public interest.

Invoking the doctrine of promissory estoppel, the respondents, in the case at hand, had argued that the authorities could not have walked out of the bargain, merely because of the possibility of larger profits. The Court, hence, took the opportunity to explain the principle of promissory estoppel and the responsibility of the Government while entering into a Government Contract.

Stating that Courts need to have a broader understanding of public interest, while reviewing such contracts, the Court explained that,

“A blanket claim by the State claiming loss of public money cannot be used to forgo contractual obligations, especially when it is not based on any evidence or examination. The larger public interest of upholding contracts and the fairness of public authorities is also in play.”

In Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, (1979) 2 SCC 409, the Court laid down the necessity of the government being bound by the principles of promissory estoppel and held that it would not be enough for the Government to merely state that public interest requires that the Government should not be compelled to carry out the promise. It is imperative that the Government   when seeking exoneration from liability of enforcing contract, must satisfy the Court as to how public interest overrides the necessity of enforcing the contract.

The Court stressed that, by merely using grounds of public interest or loss to the treasury, the successor public authority cannot undo the work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government.

“Businessmen will be hesitant to enter Government contract or make any investment in furtherance of the same. Such a practice is counter-productive to the economy and the business environment in general.”

The Court explained that though the constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise, however, the degree of compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed.

“Governmental bodies being public authorities are expected to uphold fairness, equality and rule of law even while dealing with contractual matters. It is a settled principle that right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process. A transparent bidding process is much favoured by this Court to ensure that constitutional requirements are satisfied.”

[City and Industrial Development Corporation of Maharashtra Ltd v. Shishir Realty Private Limited, 2021 SCC OnLine SC 1141, decided on 29.11.2021]


Counsels

For CIDCO: Senior Advocate Rakesh Dwivedi

For State: Senior Advocate Atmaram Nadkarni

For PIL petitioner­-appellant: Advocate Harinder Toor

For respondents: Senior Advocates Dr. Abhishek Manu Singhvi and Mukul Rohatgi


*Judgment by: Chief Justice NV Ramana

Know Thy Judge| Justice N.V. Ramana

ALSO READ

Lessee learns of cancellation of tender from Newspaper Report. SC holds authority can’t circumvent the requirement of providing effective hearing

Case BriefsHigh Courts

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

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

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

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

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

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

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

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


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioners: Mr Sunil Kumar H.

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

Hot Off The PressNews

National Human Rights Commission, India Commission has taken suo motu cognizance of a media report alleging increasing incidents of violence among inmates in Tihar Jail of Delhi.

Reportedly, in yet another incident of inmate clash inside the prison, a 25-year-old prisoner was beaten up by another on 22 September, 2021, which was the sixth incident in this month alone.

The Commission has observed that the contents of media reports, if true, raise serious issue of human rights violations of the prisoners in custody of state. Accordingly, it has issued notices to the Chief Secretary and DG, Prisons, Govt. of NCT of Delhi calling for a detailed report with four weeks, including steps taken or proposed to be taken to address the issue of violence in Tihar jail.

Issuing the notices, the Commission has noted that such incidents of violence inside the jail indicate towards negligence by the prison authorities resulting into gross violation of human rights of the inmates in custody of the state.

According to the media report, carried on 24 September, 2021, the latest victim of violence in the Tihar jail told during investigation that he was first abused and beaten up by another inmate. The same day a Head Matron was injured during a scuffle with an inmate. Reportedly, about thirty inmates have been injured during September this year due to clashes in the jail.


National Human Rights Commission

[Press Release dt. 28-9-2021]

OP. ED.SCC Journal Section Archives

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.

 

READ COMPLETE ARTICLE HERE


*The article has been published with kind permission of Eastern Book Company. Cite 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.)