Cases ReportedSupreme Court Cases

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

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

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

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


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

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

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

2021 SCC Vol. 6 Part 3

In this part read a very interesting decision delivered by the Supreme Court expertly analysed by our editors. Supreme Court held that given the object of speedy disposal sought to be achieved both under the Arbitration and Conciliation Act, 1996 and Commercial Courts Act, 2015, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. [State of Maharashtra v. Borse Bros. Engineers & Contractors (P) Ltd., (2021) 6 SCC 460]

 Short Notes: 8


Arbitration and Conciliation Act, 1996 — S. 37 — Limitation period for filing appeals: Arts. 116 and 117 of the Limitation Act are not applicable for filing appeals under S. 37 of the A&C Act, 1996 in respect of cases falling under Commercial Courts Act i.e. where specified value is not less than three lakh rupees. Rather, it is S. 13(1-A) of the Commercial Courts Act which provides the forum for appeals under S. 37, as well as the limitation period to be followed. S. 13(1-A) of the Commercial Courts Act lays down a period of limitation of 60 days uniformly for all appeals under S. 37 where specified value is not less than three lakh rupees. [State of Maharashtra v. Borse Bros. Engineers & Contractors (P) Ltd., (2021) 6 SCC 460]

Constitution of India — Arts. 191, 190 and 80(4) — Membership of State Legislative Assembly/Council — Disqualifications — Applicability and consequences thereof: Right of an MLA, on becoming disqualified, to cast his vote in an election by MLAs, held, ceases upon such disqualification being incurred. [Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, (2021) 6 SCC 523]

Constitution of India — Sch. VII List III Entry 25 and List I Entry 66 — Legislative competence of States to make reservation for in-service doctors in the State quota in postgraduate degree/diploma medical courses — Scope and limitations: States have legislative competence and authority to provide for a separate source of entry or reservation for in-service candidates seeking admission to postgraduate degree/diploma medical courses in the State quota, in exercise of powers under Sch. VII List III Entry 25 of the Constitution. However, such policy must also provide that such in-service doctors getting benefit under such policy should serve the State in the rural, tribal and hilly areas for five years at least after obtaining the degree/diploma and for that they must execute bonds for such sum as the respective States may consider fit and proper. [T.N. Medical Officers Assn. v. Union of India, (2021) 6 SCC 568]

Motor Vehicles Act, 1988 — S. 173 second proviso — Appeals beyond period of ninety days: Word “may” used in S. 173 second proviso, is not a word of compulsion and it is an enabling word and it only confers capacity, power or authority and implies discretion. Thus, word “may”, held, is used in S. 173 to confer sufficient discretionary powers upon the Court to entertain appeals even beyond the period of ninety days. [Brahampal v. National Insurance Co., (2021) 6 SCC 512]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 32-B and 21 — Factors to be taken into account while imposing punishment/sentence higher than the prescribed minimum: Factors other than those mentioned/enumerated in S. 32-B of the NDPS Act can be considered. Court may take into account such factors as it may deem fit and also the factors enumerated/mentioned in S. 32-B of the NDPS Act but, where the court considers such factor(s) as it may deem fit other than the factors enumerated in Ss. 32-B(a) to (f) of the NDPS Act, then such factor(s) must be relevant factor(s). Quantity of narcotic substance/drug with which the accused is charged, held, is a relevant factor which would fall within the ambit of expression “such factors as it may deem fit”. Hence, can be taken into account while imposing punishment/sentence higher than the prescribed minimum. [Gurdev Singh v. State of Punjab, (2021) 6 SCC 558]

Service Law — Appointment — Substituted appointment: Entitlement to continue in place of substituted person, held, terminates if substituted person establishes that they were wrongly substituted. [State of Odisha v. Kamalini Khilar, (2021) 6 SCC 546]

Cases ReportedSupreme Court Cases

In this part read a very interesting case, DLF Home Developers Ltd. v. Capital Greens Flat Buyers Assn., (2021) 5 SCC 53. In this case, 339 flat buyers had complained against delayed handing over of possession, the Bench of Dr. DY Chndrachud and KM Joseph, JJ held that the flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities.

“A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”

Short Notes: 3

Advocates who appeared in this case:

Pinaki Misra, Senior Advocate (Ms Ruby Singh Ahuja, Ms Seema Sundd, Pravin Bahadur, Sanjeet Ranjan, Ms Kritika Sachdeva, Aditya Singh, Ritu Raj, Alabhya Dhamija and M/s Karanjawala & Co. Advocates )– for the Appellants

Shyam Divan, Senior Advocate [Ajay Kohli, S.S. Sobti, Ms Aastha Garg, Ms Priyanka Ghorawat, Ms Monisha Handa, Mohit D. Ram (Advocate-on-record), Tapan Bijoy DebChoudhury (Advocate-on-Record), Siddharth (Advocate on Record), Arjun Syal, Apoorve Karol, Mithu Jain (Advocate-on-Record)  and Arnav Vidyarthi, Advocates], for the Respondents.


Consumer Protection — Services — Housing and Real Estate — Delay in delivery of possession: Compensation for such delay over and above stipulated contractual rate is grantable, even when seller gives the buyer option to exit by offering refund with interest but the same is not accepted. [DLF Home Developers Ltd. v. Capital Greens Flat Buyers Assn., (2021) 5 SCC 537]

Courts, Tribunals and Judiciary — Courts, Tribunals and Special Courts — Virtual Court/Videoconferencing: Due to outbreak of Coronavirus (Covid-19), there was necessity of balance in reducing physical presence in court premises and maintenance of social distancing as per guidelines and continued dispensation of justice, hence there was holding of courts through videoconferencing from Supreme Court level to District Court level. In many States, situation has eased and it has been possible to even commence hearings in congregation. System of videoconferencing has been extremely successful in providing access to justice. Hence, directions issued earlier in this regard need not be altered except as directed herein. [Guidelines for Court Functioning Through Videoconferencing during Covid-19 Pandemic, In re, (2021) 5 SCC 454]

Courts, Tribunals and Judiciary — High Courts — Jurisdiction and Powers — Subordinate Judiciary and High Courts: Adverse remarks against subordinate judicial officer cannot be passed without hearing the officer concerned. Further, in case the High Court finds the impugned judgment of the officer suffering with grave errors and casting some doubt on the performance of the officer, the matter should be taken up on the administrative side. [K.G. Shanti v. United India Insurance Co. Ltd., (2021) 5 SCC 511]

Criminal Procedure Code, 1973 — S. 154 — Registration of FIR — Preliminary enquiry — Permissibility: When the information received at the police station does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. [Charansingh v. State of Maharashtra, (2021) 5 SCC 469]

Criminal Procedure Code, 1973 — Ss. 154, 156(3), 210 and 482 — FIR with same allegations lodged during pendency of application under S. 156(3) — Maintainability: Such FIR, held, maintainable, because of S. 210, which permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. However, when the subsequent FIR appears to be an abuse of process of law and lodged only to harass the accused, the same can be quashed in exercise of powers under Art. 226 of the Constitution or in exercise of powers under S. 482 CrPC. In that case, the complaint case will proceed further in accordance with the provisions of the CrPC. [Kapil Agarwal v. Sanjay Sharma, (2021) 5 SCC 524]

Criminal Procedure Code, 1973 — Ss. 31(1), 220(1), 433 and 433-A — Sentences in case of conviction for multiple offences at one trial: Omission to state whether sentences awarded to accused would run concurrently or would run consecutively, held, essentially operates against accused because, unless stated so by court, multiple sentences run consecutively, as per plain language of S. 31(1) CrPC read with expositions in Muthuramalingam, (2016) 8 SCC 313 and O.M. Cherian, (2015) 2 SCC 501. Furthermore, omission to state order of consecutive running i.e. sequence in which the consecutive sentences will run, also cannot ipso facto lead to concurrent running of sentences. Moreover, principle related with “single transaction” cannot be imported for dealing with such omissions. [Sunil Kumar v. State of U.P., (2021) 5 SCC 560]

Education Law — Fees — Fee structure/Capitation Fee/Fee Regulatory Committee — Professional courses: Directions and clarifications, issued regarding scope and extent of judicial review of delay in fee determination by Statutory Committee vis-à-vis fee proposed by management of private institutions. [Najiya Neermunda v. Kunhitharuvai Memorial Charitable Trust, (2021) 5 SCC 515]

Environment Law — Afforestation/Reforestation/Diversion/Encroachment/Illegal activity/Intrusion into Forest land/Wildlife sanctuaries/parks — Felling of trees, in order to construct road over bridges and widen roads: There must be a realistic assessment of economic value of a tree, which may be permitted to be felled, with reference to its value to environment and its longevity. It is essential to strike right balance between environmental conservation and protection on one hand, and right to development on the other, while articulating doctrine of sustainable development. Conservation and development need not be viewed as binaries, but as complementary strategies that weave into one another. In other words, conservation of nature must be viewed as part of development and not as a factor stultifying development. Expert Committee constituted and direction issued to committee to submit its recommendations. [Assn. for Protection of Democratic Rights v. State of W.B., (2021) 5 SCC 466]

Excise — Classification of Goods — Tests therefor: There is no single universal test in matters relating to classification. It is for this reason common parlance test or commercial usage test, as it is called, is treated as the more appropriate test, though not the only one. There may be cases, particularly in the case of new products, where this test may not be appropriate. In such situations other tests like test of predominance, either by weight of value or on some other basis may have to be applied. It is indeed not possible, nor desirable, to lay down any hard-and-fast rules of universal application. [Westinghouse Saxby Farmer Ltd. v. CCE, (2021) 5 SCC 586]

Family Courts Act, 1984 — Ss. 7 and 10 — Exercise of power by Family Court: Family Court is obliged to inquire into matter as per procedure prescribed by law. It does not have plenary powers to do away with mandatory procedural requirements, in particular which guarantee fairness and transparency in process to be followed and for adjudication of claims of both sides. Nature of inquiry before Family Court is, indeed, adjudicatory. It is obliged to resolve rival claims of parties and while doing so, it must adhere to norms prescribed by statute in that regard and also foundational principles of fairness of procedure and natural justice. [Aman Lohia v. Kiran Lohia, (2021) 5 SCC 489]

Insolvency and Bankruptcy Code, 2016 — S. 233: In this case, it was held that arrest of interim resolution professional appointed by the Court was not justified. [Jaypee Kensington Boulevard Apartments Welfare Assn. v. NBCC (India) Ltd., (2021) 5 SCC 624]

Kerala Building Tax Act, 1975 (7 of 1975) — Ss. 3(1)(b), 5-A and 2(l) — Luxury tax on residential buildings having a plinth area of 278.7 sq m and which have been completed on or after 1-4-1999 — Beneficial exemption under S. 3(1)(b) for buildings that are used principally for religious, charitable or educational purposes or as factories or workshops: Buildings which are used for stay of nuns who are receiving religious instructions or students who are receiving education, held, are entitled to exemption under S. 3(1)(b). In view of the expression “principally” in S. 3(1)(b), dominant object test must be applied to find out to see whether such building is exempt or not. If buildings are principally connected with purposes mentioned therein, it would be entitled for exemption. Religious, charitable or educational purposes are earmarked by legislature as qualifying for the exemption as they do not pertain to business or commercial activity. [State of Kerala v. Mother Superior Adoration Convent, (2021) 5 SCC 602]

Penal Code, 1860 — S. 124-A — Sedition — Ingredients: Expression of a view which is a dissent from decision taken by Central Government, by itself, held, cannot be said to be seditious. [Rajat Sharma v. Union of India, (2021) 5 SCC 585]

Penal Code, 1860 — S. 302 — Death due to burn injuries: In this case, deceased victim’s husband poured kerosene on her and set her ablaze and deceased suffered 90% burn injuries. Dying declaration recorded by Magistrate, found natural with no reason to disbelieve it. Also, Magistrate deposed clearly that the relatives of deceased were not there at the time of recording dying declaration of deceased. No tutoring of deceased was made out. Again, statements of mother and maternal uncle of deceased corroborate case of prosecution. Their statement clearly showed that deceased was tortured at the hands of accused husband and his family members. Hence, guilt of accused established beyond reasonable doubt and conviction of accused under S. 302, was confirmed. [Satpal v. State of Haryana, (2021) 5 SCC 598]

Penal Code, 1860 — S. 302 — Murder trial — Appreciation of evidence: In this case, appellant-accused allegedly murdered his brother by assaulting victim on head with wooden club at night. Evidence produced by prosecution, held, was too thin to convict appellant-accused under S. 302 IPC. There was no major lacuna in trial court’s reasoning which warranted interference by High Court. Hence, judgment of acquittal of appellant-accused by trial court, restored. [Mallappa v. State of Karnataka, (2021) 5 SCC 572]

Penal Code, 1860 — S. 302: In this case, there was death of woman caused by asphyxia due to hanging. Accused husband was convicted under S. 302 and sentenced to life imprisonment therefor by courts below. Admittedly, there were no marks on body of deceased which would suggest violence or struggle. In any case, medical expert himself had not ruled out possibility of suicidal death. Postmortem report showed that cause of death was “asphyxia due to hanging”. Prosecution even failed to prove beyond reasonable doubt, that death was homicidal. In light of evidence, it was held that the courts below erred in holding that prosecution proved that death of deceased was homicidal. Conviction reversed as homicidal death by hanging could not be established. In this case of circumstantial evidence, prosecution failed even to prove a single incriminating circumstance beyond reasonable doubt. Therefore, conviction of appellant was set aside and he stood acquitted. [Shivaji Chintappa Patil v. State of Maharashtra, (2021) 5 SCC 626]

Penal Code, 1860 — Ss. 302, 326, 323 and 452 — Contradictions, inconsistencies, exaggerations or embellishments — Case of exaggerations — Duty of court in such case — When can entire evidence not be discarded: Court of law is duty-bound to disseminate “truth” from “falsehood” and sift grain from chaff in case of exaggerations. It is only in case where grain and chaff are so inextricably intertwined that in their separation no real evidence survives, that entire evidence can be discarded; but not otherwise. Even in cases where major portion of evidence is found deficient, if residue is sufficient to prove guilt of accused, conviction can be based on it. [Achhar Singh v. State of H.P., (2021) 5 SCC 543]

Practice and Procedure — Delay/Laches/Limitation — Filing of petitions/applications/suits/ appeals/all other proceedings: To obviate physical presence of lawyers or litigants during Covid-19 Pandemic, limitation period for filing all proceedings before courts and tribunals from 15-3-2020 had been extended till further orders. The Supreme Court held that in view of changing scenario relating to Pandemic, extension of limitation, held, should come to an end. In this regard consequential directions issued. [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452]

Preventive Detention — Advisory Board — Proceedings before the Board — Hearing — No effective hearing: In this case, detention order was quashed due to lack of effective hearing by State Advisory Board. Hearing was vitiated because of the following reasons: (i) Right of detenu to get a written intimation of the date of hearing with option to keep an advocate for effective representation of case was not complied with as said communication was made on the same day when hearing took place (ii) Detenu’s specific request for furnishing translated copies and other materials and information was denied and no reasons were given for such denial (iii) Even the fate of various requests made to the detaining authority vide representation dt. 7-1-2021 was not communicated before 3-2-2021. Statement of detenu himself recorded in Hindi after his detention, was not supplied to the detenu before the date of hearing. [Sanjay Kanubhai Tanti v. State, (2021) 5 SCC 486]

Service Law — Pay — Incentive Schemes/Allowances other than Pay — MACP and ACP Schemes — Nature of: MACP and ACP Schemes are incentive schemes intended to relieve stagnation and are not part of the pay structure. Hence held, respondents in this case and other similarly situated employees are entitled to financial upgradation under MACP Scheme only to next grade pay and not to grade pay of next promotional post. [Union of India v. R.K. Sharma, (2021) 5 SCC 579]

Service Law — Recruitment Process — Examination — Civil Services (Preliminary) Examination, 2020: In this case, prayer to grant one additional attempt due to COVID-19 Pandemic to petitioners-interveners who were otherwise barred from attempting examination in future on account of exhausting available attempts or age bar subsequent to Examination 2020, not granted. [Rachna v. Union of India, (2021) 5 SCC 638]

Specific Relief Act, 1963 — Ss. 38 and 39: In this case, prayer was made for permanent and mandatory injunction restraining defendant from using premises in question and directing defendant to restore possession thereof to plaintiff. The Court held that as Respondent-defendant not in possession of premises in his own right either as a tenant or a licensee, his possession is only as an employee of plaintiff, hence appellant-plaintiff was held entitled to decree of mandatory injunction. [Madan Mohan Singh v. Ved Prakash Arya, (2021) 5 SCC 456]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 41 Rr. 27 to 29: Order for taking additional evidence in appeal without following procedure under Or. 41 Rr. 27, 28 and 29 is not permissible. Unless and until procedure under Or. 41 Rr. 27 to 29 is followed, parties to appeal cannot be permitted to lead additional evidence and/or appellate court is not justified to direct court from whose decree appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to appellate court. [H.S. Goutham v. Rama Murthy, (2021) 5 SCC 241]

Consumer Protection Act, 1986 — S. 2(1)(r) — Unfair trade practice — Terms of agreement between buyer and seller whether one-sided and the same constitutes unfair trade practice: In case, when agreement fastening liability on purchaser to pay simple interest @ 12% p.a. if he failed to pay instalments on time, whereas if seller failed to hand over possession on time he would have to pay compensation @ Rs 2 per square foot per month for period of delay, held, such condition is one-sided and constitutes unfair trade practice. [NBCC (India) Ltd. v. Shri Ram Trivedi, (2021) 5 SCC 273]

Criminal Procedure Code, 1973 — S. 319 — Object and purpose of S. 319: Principles reiterated regarding scope and ambit of powers of Magistrate under S. 319 and when additional accused may be added and “evidence” on basis of which may be added. [Sartaj Singh v. State of Haryana, (2021) 5 SCC 337]

Criminal Procedure Code, 1973 — S. 439(2) — Cancellation of bail: In this case, bail was obtained by pleading change in circumstances, but without disclosing factum of dismissal of earlier bail application. Conduct of appellant in not disclosing the fate of the earlier bail application not approved, but considering certain subsequent developments including grant of bail to co-accused, impugned cancellation order was set aside and appellant was directed to be enlarged on bail. [Jitendera Taneja v. State of U.P., (2021) 5 SCC 308]

Criminal Procedure Code, 1973 — Ss. 200 to 204 — Frivolous or vexatious complaints — Duty and powers of Magistrate/trial court in preventing abuse of court process: Trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Art. 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding fundamental rights, as the Supreme Court. [Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435]

Environment Law — Forests, Wildlife and Zoos —Afforestation/Reforestation/Diversion/Encroachment/Illegal activity/Intrusion into Forest land/Wildlife sanctuaries/parks: Diversion of forest land for carrying out certain public welfare projects in State of H.P., permitted with and without conditions, as per directions issued herein. [T.N. Godavarman Thirumulpad v. Union of India, (2021) 5 SCC 358]

Evidence Act, 1872 — S. 32(1) — Multiple dying declarations — Evidentiary value of — Duty of court in such cases: Each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of contents of the other. Court has to consider each of them in its correct perspective and satisfy itself as to which one of them or which of them reflects true state of affairs, and accordingly adjudicate the matter. [Nagabhushan v. State of Karnataka, (2021) 5 SCC 222]

Juvenile Justice (Care and Protection of Children) Act, 2000 — S. 20 Expln. — Effect of: In terms of S. 20, in all cases where the accused was above 16 yrs but below 18 yrs of age on the date of occurrence, the proceedings pending in the court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act. [Devilal v. State of M.P., (2021) 5 SCC 292]

MCI Graduate Medical Education Regulations, 1997 — Regn. 6 and Note 2: Migration from an unrecognised college to a recognised college, held, is impermissible. Migration cannot be permitted contrary to the Regulations. [Medical Council of India v. Anchal Parihar, (2021) 5 SCC 417]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 37, 67, 8, 9-A, 25-A, 23 and 29 — Limitations on grant of bail under NDPS Act: In this case, there was non-application of mind by High Court to rival submissions and, particularly, to seriousness of allegations involving offence punishable under NDPS Act. It was held that merely recording submissions of parties does not amount to indication of judicial, or, for that matter, judicious application of mind by High Court to basic question as to whether bail should be granted. Provisions of S. 37 of the NDPS Act provide legal norms which have to be applied in determining whether a case for grant of bail has been made out. Herein, there has been serious infraction by High Court of its duty to apply law. High Court misapplied law to facts in arriving at decision for grant of bail to respondent-accused. Consequently, bail granted by High Court to respondent, stood cancelled. [Union of India v. Prateek Shukla, (2021) 5 SCC 430]

National Green Tribunal Act, 2010 — S. 16 proviso — Appeal — Delay — Condonation of — NGT’s refusal to exercise discretion — “Sufficient cause” not construed liberally by NGT — Legality: An appeal to NGT in matters like environmental clearance for construction of Greenfield international airport is no ordinary matter. It has potential of irrevocably changing environment with possibility of likely injury. Application of judicial mind by an independent tribunal in such cases, at first appellate stage, is almost a necessity. [Sridevi Datla v. Union of India, (2021) 5 SCC 321]

Negotiable Instruments Act, 1881 — Ss. 139 and 118: Presumption in case of voluntarily signed blank cheque leaf as to legally enforceable debt, held, available against the accused even in case when he voluntarily signed and handed over a blank cheque leaf towards some payment. [Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283]

Rights of Persons with Disabilities Act, 2016 — Ss. 2(r), 2(s), 2(zc), 2(y) and 20: Principle of reasonable accommodation, discussed. Intrinsic to individual dignity is recognising worth of every person as equal member of society, respect for dignity of others and fostering conditions in which every individual can evolve according to his capacities. Principle of reasonable accommodation acknowledges that if disability as a social construct must be remedied, conditions must affirmatively be created for facilitating development of disabled i.e. it is founded in norm of inclusion. Exclusion negates individual dignity and worth. Accommodation implies positive obligation to create conditions conducive to growth and fulfilment of disabled in every aspect of their existence. Accommodation which law mandates is “reasonable” since it has to meet requirement of each condition of disability. Expectations of disabled person are unique to nature of his disability and character of impediments encountered as its consequence. Reasonable accommodation determinations must be based on case-to-case basis in consultation with disabled person concerned. [Vikash Kumar v. UPSC, (2021) 5 SCC 370]

Service Law — Penalty/Punishment — Norms/Rules/Principles: Principles explained regarding determination of the applicable norms when there are conflicting requirements in the statutory Rules and statutory Regulations. Statutory Rules which are specifically applicable to service to which employee belongs vis-à-vis statutory Regulations which provide for a more general dispensation. Moreover, statutory provision providing for framing of such specifically applicable statutory Rules also contain non obstante clause. [U.P. Milk Union & Dairy Federation Centralised Services v. Jagpal Singh, (2021) 5 SCC 259]

Service Law — Recruitment Process — Norms/Principles/Rules applicable: Special rules for specialised post are valid. Rr. 5 and 10 of U.P. Police Motor Transport Unit Subordinate Officers Service Rules, 2015, relating to appointment for the Post of Head Constable Driver, Motor Transport which is highly technical, held valid. [Rajesh Kumar Singh v. State of U.P., (2021) 5 SCC 421]

Service Law — Reinstatement/Back Wages/Arrears — Reinstatement — Parity: Direction to reinstate petitioners whose services were terminated because of errors in selection process finding that though they were beneficiaries of irregular select list, but petitioners were not responsible therefor and were appointed after completion of training and had worked for some time, held sustainable. [Anmol Kumar Tiwari v. State of Jharkhand, (2021) 5 SCC 424]

Unlawful Activities (Prevention) Act, 1967 — S. 43-A: In this case, Kerala journalist, namely, S was arrested in State of U.P. Permission to visit Kerala was sought by applicant S for seeing his mother lying in a critical condition and not likely to survive for long, the same was granted subject to certain conditions. [Kerala Union of Working Journalists v. Union of India, (2021) 5 SCC 311]

Urban Land (Ceiling and Regulation) Act, 1976 — S. 6 — Excess land — Point in time at which to be determined: As per S. 6 the determination of “excess land” is to be made considering the status of the land at the time of commencement of the principal Act, and not at the time of filing of the declaration. In this case, admittedly partition was affected after the commencement of the Act and it would not affect the validity of the determination of excess land owned by the joint family at the time of commencement of the Act. [U.A. Basheer v. State of Karnataka, (2021) 5 SCC 313]

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.

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

 

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

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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


*The article has been published with kind permission of 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.

Cases ReportedSupreme Court Cases

2021 SCC Vol. 5 Part 1

In this part read a very interesting decision delivered by the Supreme Court running into over 465 Pages which has been expertly analysed by our editors. While upholding the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. While so upholding the impugned amendments, the Bench expressed an observation that:

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

Short Notes: 7


Constitution of India — Art. 14 — Law enacting or modifying economic measure — Challenge to validity of — Approach of Court in such cases — Explained in detail: Wisdom of original or modified provision(s) is not subject to judicial scrutiny if provision(s) in question are otherwise compliant with the Constitution. Wider latitude given to legislature in economic matters essentially arises from separation of powers under the Constitution. Since the Insolvency and Bankruptcy Code, 2016 undoubtedly bears the brand of an economic measure upon its face, and in true spirit, being one of the most significant and dynamic economic experiments indulged in by the law giver, not by becoming servile to Parliament, but by way of time hallowed deference to the sovereign body experimenting in such matters, the Court will lean heavily in favour of such a law. [Manish Kumar v. Union of India, (2021) 5 SCC 1]

Cases ReportedSupreme Court Cases

2021 SCC Vol. 4 Part 3


Arbitration and Conciliation Act, 1996 — Pt. II and S. 20 — Law of arbitration/curial law/seat of arbitration — Determination of, by consent of parties: In this case, Cl. 67 of the contract between the parties inter alia provided that in the absence of an Arbitration Act in Bhutan, the Arbitral Tribunal shall follow/be guided by the basic principles and procedures as contained in the Indian Arbitration and Conciliation Act, 1996 while Cl. 67(vii)(a) provided that all arbitration shall be held at New Delhi, India/Thimphu, Bhutan. On 25-2-2013, the Kingdom of Bhutan enacted the Alternative Dispute Resolution Act, 2013 while on 28-7-2020, the respondent Contractor sent a notice of arbitration to the appellant Authority under Cl. 67(ii) of the Contract, and nominated its arbitrator. Since the appellant Authority had failed to appoint its arbitrator, High Court exercised its jurisdiction under S. 11 of the Indian A&C Act, 1996 and made the appointment and also directed that the two arbitrators would proceed to appoint the presiding arbitrator. Appellant Authority did not have an issue with respect to the panel of arbitrators appointed and their grievance was limited to the applicability of the Indian A&C Act, 1996 and the seat of arbitration at New Delhi. In view of the consensus arrived at between the parties, the order of High Court was modified to the extent that all disputes arising out of the agreement dt. 14-4-2009 shall be conducted in accordance with the Alternative Dispute Resolution Act of Bhutan, 2013 with the seat of arbitration at Thimphu. [Punatsangchhu-1 Hydroelectric Project Authority v. Larsen & Toubro Ltd., (2021) 4 SCC 511]

Arbitration and Conciliation Act, 1996 — Ss. 8 and 11 — Arbitration clause/agreement contained in substantive contract/instrument on which stamp duty has to be compulsorily paid: Issues referred to larger Bench of five Judges that whether the arbitration clause can be enforced/acted upon, when such substantive contract/instrument is unstamped, whilst adjudication of the rights and obligations under the underlying substantive contract cannot proceed before the deficit stamp duty is paid in accordance with law; Authority which must impound the unstamped instrument at different stages, so that the deficit stamp duty may be paid in accordance with law and adjudication of the rights and obligations under the underlying substantive contract, by the arbitrator may commence thereafter. [N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., (2021) 4 SCC 379]

Constitution of India — Art. 226 — Exercise of power under — Reasoned and independent analysis — Necessity: Technology enables Judges to bring speed, efficiency and accuracy to judicial work but prolific use of “cut-copy-paste” function should not become substitute for substantive reasoning which, in ultimate analysis is defining feature of judicial process. The fact that Judges are indeed hard pressed for time, faced with burgeoning vacancies and large caseloads acknowledged and perhaps crisp reasoning could be answer to the issue. [UPSC v. Bibhu Prasad Sarangi, (2021) 4 SCC 516]

Contempt of Court — Civil Contempt — Wilful disobedience/contumacious conduct: Conduct lacking in bona fides alone, of successful resolution applicant under Insolvency Code is insufficiency to invite the penal consequences which emanate from the exercise of the contempt jurisdiction of the Court. [AMTEK Auto Ltd. Committee of Creditors v. Dinkar T. Venkatasubramanian, (2021) 4 SCC 457]

Courts, Tribunals and Judiciary — Courts, Tribunals and Special Courts — Tribunals — Tenure of Members/Chairperson — Competent authority — Scope of judicial interference: In this case, tenure of Chairperson of Tribunal directed/specified by Government under the applicable statutory provisions which held the field at the relevant time, come to an end. Prayer for extension of tenure on ground that incumbent Chairman was the only judicial member of the Board and that there was no other judicial member, held not tenable in the light of principles laid down in Rojer Mathew, (2020) 6 SCC 1 and Madras Bar Assn., (2021) 7 SCC 369. [International Assn. for Protection of Intellectual Property (India Group) v. Union of India, (2021) 4 SCC 519]

Government Grants, Largesse, Public Property and Public Premises — Affirmative Action Schemes, Pension and Other Schemes — Pension Schemes — Generally — Different pension schemes for freedom fighters: In this case, applicant had not produced required documents as per scheme concerned, hence he was held, not entitled to pension under that scheme though he might be getting Freedom Fighter’s Pension under some other scheme. [Union of India v. A. Alagam Perumal Kone, (2021) 4 SCC 535]

Insolvency and Bankruptcy Code, 2016 — Ss. 7 & 9 and S. 238 — Petition under S. 7 or S. 9 IBC — Maintainability of, even when there exists an admitted winding-up petition regarding the same company: IBC has overriding effect over winding-up provisions of the Companies Act, including S. 446 of the Companies Act, 1956/S. 279 & S. 434(1)(c) of the Companies Act, 2013. (1) Pendency of admitted winding-up proceedings, thus held, not a bar to S. 7 or S. 9 IBC petitions, as the latter are independent and overriding proceedings. (2) Transfer of such pending admitted winding-up petition to NCLT for adjudication under IBC, further held, is not the only route to IBC in such case, as S. 7 or S. 9 IBC petition are independent proceedings and IBC has overriding effect over winding-up provisions of the Companies Act. (3) Fresh petition under S. 7 or S. 9 IBC, or, transfer of pending admitted winding-up petition to NCLT under IBC, are subject only to: (i) test of irreversible/irretrievable act(s)/stage having been done or reached in the winding-up proceedings as laid down in Action Ispat, (2021) 2 SCC 641, or, (ii) where a company in winding up is near corporate death. These have to be determined in the facts and circumstances of each case, and an irresistible conclusion reached in this regard. (4) Irreversible/irretrievable act(s)/stage in the winding-up proceedings, clarified, must be act(s) or stage in or of the winding-up proceedings themselves. Sale of property of corporate creditor/company which is under winding-up proceedings by secured creditor who stood outside the winding-up proceedings, held, is not irreversible/irretrievable act/stage in the winding-up proceedings themselves, hence, not a bar to fresh petition under S. 7 or S. 9 IBC. (5) Fresh S. 7 or S. 9 IBC petition being an independent proceeding having overriding effect over winding-up provisions of the Companies Act, and which has to be determined on its own merits, held, it is irrelevant that pendency of winding-up proceedings was suppressed in S. 7 or S. 9 IBC application, nor would such act be a subterfuge. [A. Navinchandra Steels (P) Ltd. v. Srei Equipment Finance Ltd., (2021) 4 SCC 435]

Insolvency and Bankruptcy Code, 2016 — Ss. 9 and 8 — Application under S. 9 by operational creditor — Prerequisites for: In this case, operational creditor failed to prove operational debt and its default and there was a pre-existing dispute as to existence of such debt. Disputes raised by corporate debtor prior to receipt of demand notice and the demand notice also replied to within the statutory prescribed period of 10 days. The Supreme Court held that application under S. 9 was rightly rejected by NCLT and NCLAT. [Allied Silica Ltd. v. Tata Chemicals Ltd., (2021) 4 SCC 515]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Acquittal of co-accused: Claim of parity is not available to the appellant, when unlike the appellant, none of the co-accused were apprehended at the spot and no evidence produced to connect them with the alleged offence. Contrarily, not only was appellant apprehended at the spot of the incident but also found in conscious possession of the contraband. [Sk. Sakkar v. State of W.B., (2021) 4 SCC 483]

Reservation, Concession, Exemption, Relaxation and Affirmative Action — Migration of Category: Candidates belonging to vertical reservation categories are entitled to be selected in “Open or General” category on basis of their merit and in such circumstances their selection cannot be counted against their respective quota for vertical reservation. In case of migration to open category based on merit, manner in which vertical reservation and horizontal reservation are to be applied, explained in detail. [Saurav Yadav v. State of U.P., (2021) 4 SCC 542]

Rights of Persons with Disabilities Act, 2016 — Ss. 2(5) and 2(zc) r/w S. 2(i) of the 1995 Act — Dilated Cardiomyopathy — Whether disability: S. 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, taking into account visual disability, locomotor disability, mental illness, mental retardation, hearing impairment and leprosy but not heart ailment. Under S. 2(s) of the 2016 Act, “a person with disabilities” is defined as a person with long term physical, mental, intellectual or sensory impairment which prevented his full and effective participation in society. S. 2(zc) defines “specified disability” as those mentioned in Schedule to the 2016 Act which envisage “physical disability”, “intellectual disability” and “mental behaviour”. Dilated Cardiomyopathy condition neither specified disability her relatable to broad spectrum of impairments, which hinders full and effective participation in society. Thus, Dilated Cardiomyopathy condition of appellant does not bring his case either within ambit of 1995 Act or the 2016 Act. [Nawal Kishore Sharma v. Union of India, (2021) 4 SCC 487]

Service Law — Pension — Cut-off date/point — Validity and binding effect of — Scope of judicial review — Freedom of employer to introduce new schemes and benefits having regard to its financial health: In this case,  Pension scheme was introduced vide Noti. dt. 6-10-1995 w.e.f. 5-6-1995 i.e. the date on which scheme was approved by Cabinet/Government. Respondent Union employees retiring prior to 5-6-1995 and governed by CPF scheme, held not entitled to pension under pension scheme in question. [Himachal RTC v. Retired Employees Union, (2021) 4 SCC 502]

Service Law — Police — Recruitment Process — Post of Police Sub-Inspector: Recruitment over and above notified vacancies, not permissible. [Gajanan Babulal Bansode v. State of Maharashtra, (2021) 4 SCC 494]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 226 — PIL: In this case there were allegations that PIL writ petition before High Court in this case was initiated at instance of SLP petitioner herein and others mala fide, and with vested interest, etc. Enquiry to determine that whether the audio recording on pen drive of alleged mobile phone conversation between SLP petitioner and intervener in the PIL writ petition submitted the High Court is authentic and genuine, at instance of retired Supreme Court Judge directed by High Court. Continuance of such enquiry, held not warranted once SLP petitioner had admitted the conversation and submitted transcript thereof in Court on affidavit. Further, directed that in event High Court intends to refer to said transcript while disposing of main writ petition, same can be done only after granting opportunity to SLP petitioner. [V. Eswaraiah v. Union of India, (2021) 4 SCC 231]

Criminal Procedure Code, 1973 — S. 319 — Summoning of additional accused: Exercise of powers and requisite test that needs to be applied by the courts, reiterated. [Ajay Kumar v. State of Uttarakhand, (2021) 4 SCC 301]

Evidence Act, 1872 — S. 118 — Child witness: Legal principles regarding evidentiary value, effect of discrepancies, duty of court and corroboration when necessary, summarized. [Hari Om v. State of U.P., (2021) 4 SCC 345]

Forest (Conservation) Act, 1980 — S. 2 — Restriction on de-reservation of forests: Provisions of S. 2 mandate strict and punctilious compliance therewith. Mere substantial compliance is not enough. Any construction made on forest land or its utilisation for “non-forest purposes” which is violative of Forest (Conservation) Act, 1980 and therefore illegal, liable to be demolished. [H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee, (2021) 4 SCC 309]

Income Tax Act, 1961 — Ss. 80-IA and 80-AB: Deduction under S. 80-IA is not restricted to “business income” alone i.e. applicable to “income from other sources” as well. It is clarified that provisions contained in Ss. 80-AB and 80-IA(5) do not curtail such view. [CIT v. Reliance Energy Ltd., (2021) 4 SCC 237]

Transfer of Property Act, 1882 — S. 40 Pt. II and S. 54 — Agreement for sale — Whether genuine — Determination of: Where the disputed will and the agreement for sale cannot be analysed independent of each other, the agreement for sale is as invalid and untrustworthy as the will. [Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246]

Cases ReportedSupreme Court Cases

Foreword to Anomalies in Law and Justice: A tribute to Justice Raveendran and an introduction to the book “Anomalies in Law & Justice” by Justice R.V. Raveendran, former Judge, Supreme Court of India. [Foreword to Anomalies in Law and Justice by M.N. Venkatachalaiah, (2021) 4 SCC (J-1)]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 53 and 53-A: Officers empowered under S. 53, are police officers for the purpose of attracting bar under S. 25 of the Evidence Act, 1872 against admissibility of confession to a police officer. Hence, any confessional statement made to officers empowered under S. 53 cannot be taken into account in order to convict an accused, except to the extent found “relevant” under S. 53-A, and, when corroborated in accordance with law. Ss. 53 and 53-A of the NDPS Act, when read together, make it clear that S. 53-A is in the nature of an exception to Ss. 161, 162 and 172 CrPC. However, statements made before the officer empowered under S. 53 of the NDPS Act, even when “relevant” under S. 53-A, cannot, without corroborating evidence, be the basis for the conviction of an accused. [Tofan Singh v. State of T.N., (2021) 4 SCC 1]

Cases ReportedSupreme Court Cases

SCC Issue dated April 14th, 2021 (Vol. 3 Part 5)

In this part read a very interesting article Existence and Mortgageability of Equitable Estates in Immovable Property in Indian Law – I, (2021) 3 SCC J-25 by Mr Sudeep Malik, Associate Editor, Supreme Court Cases. The author discusses the question “Whether a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title? “ which was referred to 3-Judge Bench of Supreme Court in Syndicate Bank v. APIIC, (2021) 3 SCC 736.


Civil Procedure Code, 1908 — Or. 23 R. 3 and Ss. 151 and 96(3) — Consent decree — Modification or alteration of, by court — When permissible: It is settled law that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties and it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the parties thereto. However, this formulation is far from absolute and does not apply as a blanket rule in all cases and a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise. [Compack Enterprises (India) (P) Ltd. v. Beant Singh, (2021) 3 SCC 702]

Constitution of India — Art. 21 r/w Pt. III — Liberty guaranteed by Pt. III — Scope of: Liberty guaranteed by Pt. III of the Constitution covers within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. When a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge accused on bail regardless of statutory restrictions imposed on right to bail by provisions like S. 43-D(5) of the UAPA. [Union of India v. K.A. Najeeb, (2021) 3 SCC 713]

Consumer Protection Act, 1986 — S. 13(2)(a): Limitation period for filing response or written statement in reply to complaint, by respondent/opposite party, mandatorily cannot be extended beyond prescribed period of 45 days (i.e. period of 30 days along with discretionary extension of time up to 15 days) by Consumer Fora. [Daddy’s Builders (P) Ltd. v. Manisha Bhargava, (2021) 3 SCC 669]

Consumer Protection Act, 1986 — Ss. 13(2)(a), 18 and 22 — Power of Consumer Fora to extend time for filing written statement/reply to complaint beyond stipulated period of 45 days: In this case as the matter was pending decision of larger Bench on the said issue, direction issued that it would be open to Consumer Fora concerned to accept written statement filed beyond stipulated time of 45 days in an appropriate case, on suitable terms, including payment of costs, and to proceed with matter. [Reliance General Insurance Co. Ltd. v. Mampee Timbers and Hardwares (P) Ltd., (2021) 3 SCC 673]

Courts, Tribunals and Judiciary — Judicial Process — Recusal by Judge: Recusal by Judge is not warranted when on an earlier occasion first application filed by applicant for the very same relief as in present application was dismissed by the Bench in which one of the Judges of present Bench was present on the earlier occasion as well. Litigant cannot be permitted to browbeat Court by seeking Bench of its choice. [Neelam Manmohan Attavar v. Manmohan Attavar, (2021) 3 SCC 727]

Criminal Procedure Code, 1973 — S. 311 — Power to summon material witness, or examine person present: Principles summarised regarding object and scope of S. 311 and power and duties of court while exercising discretion under S. 311 CrPC. [V.N. Patil v. K. Niranjan Kumar, (2021) 3 SCC 661]

Criminal Procedure Code, 1973 — S. 439 r/w S. 41 — Interim bail: In this case, there was absence of compliance with procedure contained in S. 41 CrPC before arresting the petitioner. Same taken as factor for directing release of petitioner, a stand-up comedian, on ad interim bail by staying impugned judgment of High Court by which it declined bail to the petitioner involved in offences under Ss. 295-A, 298, 269 and 188/34 IPC, wherein complainant had alleged that jokes made by petitioner had outraged religious sentiments of the complainant and those similarly situated. [Munawar v. State of M.P., (2021) 3 SCC 712]

Criminal Procedure Code, 1973 — S. 482 — Quashment of proceedings under Ss. 419, 420, 323, 504 and 506 IPC: It was held that this case was fit for High Court to exercise jurisdiction under S. 482 CrPC and to quash criminal proceedings against accused under Ss. 419 and 420 IPC as it could not be said that averments in FIR and allegations in complaint against appellant constituted offences thereunder. But, regarding proceedings under Ss. 323, 504 and 506 IPC, High Court has rightly not quashed such proceedings, which shall be continued as per charge-sheet and shall be disposed of in accordance with law, on their own merits. [Archana Rana v. State of U.P., (2021) 3 SCC 751]

Existence Of Arbitration Agreement: This article seeks to examine the scope and purport of Section 7(4)(c) of the Arbitration and Conciliation Act, 1996 which stipulates that an arbitration agreement is deemed to be in writing if it is contained in an exchange of statement of claim and defence wherein the existence of arbitration agreement is alleged by one party and not denied by the other. In order to accomplish the aforesaid objective, the authors first examined the legislative history of Section 7 of the Act resulting in its enactment. Thereafter, the authors briefly examined the divergent views expressed by the High Courts and the Supreme Court of India on the scope and meaning of Section 7(4)(c) of the Act. The authors concluded by summarising their views on the true scope and purport of the said sub-section. Section 7(4)(C) Of The Arbitration And Conciliation Act, 1996: Acquiesence By Silence? By M. Dhyan Chinnappa & Rohan Tigadi, [(2021) 3 SCC (J-32)]

Hindu Marriage Act, 1955 — S. 13(1)(i-a) — “Mental cruelty” — Grant of divorce on ground of — Factors to be considered: For considering dissolution of marriage at instance of a spouse who alleges mental cruelty, result of such mental cruelty must be such that it is not possible to continue with matrimonial relationship. In other words, wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. Degree of tolerance will vary from one couple to another and court will have to bear in mind background, level of education and also status of parties, in order to determine whether cruelty alleged is sufficient to justify dissolution of marriage, at instance of wronged party. [Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742]

Land Acquisition Act, 1894 — Ss. 28-A, 4(1) and 23(1-A) — Redetermination of compensation: Claimant whose lands were acquired by a common notification, held, is entitled to enhanced compensation awarded by civil court to other landowners in same survey number. [Murali v. State of Kerala, (2021) 3 SCC 747]

Mortgage by deposit of title deeds: In this article, the author reflects upon several legal aspects relating to the issue raised before Supreme Court in Syndicate Bank v. APIIC, (2021) 3 SCC 736 regarding if a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title. The author proposed some propositions in the matter. Those propositions are to be substantiated with statutory and case law analysis in several forthcoming articles in the SCC Journal Section by the author. Existence and Mortgageability of Equitable Estates in Immovable Property in Indian Law – I, by Sudeep Malik [(2021) 3 SCC (J-25)]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 — Ss. 6, 23 and 27 — Offences under the 1994 Act — Bail: In this case, accused and one other were found involved in pre-natal sex determination and abortion of female foetuses at their residence, without required registration or licence under law. There was sufficient evidence to hold that there is strong prima facie case against appellant-accused herein and that she had more active role in conducting alleged illegal medical practices of sex determination and sex-selective abortion as compared to other co-accused. Therefore, it is imperative that no leniency should be granted at instant stage. Thus, order of High Court denying bail to appellant-accused, confirmed. [Rekha Sengar v. State of M.P., (2021) 3 SCC 729]

Prevention of Corruption Act, 1988 — Ss. 7, 13(2) and 13(1)(d) — Illegal gratification: Mere recovery of tainted money in absence of any proof of demand and acceptance, cannot be said to be sufficient to convict the accused. [N. Vijayakumar v. State of T.N., (2021) 3 SCC 687]

Service Law — Departmental Enquiry — Enquiry Procedure — Issue of show-cause notice indicating proposed punishment of compulsory retirement before furnishing enquiry report — Legality of: After enquiry officer records his findings, it is always open for disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate same to delinquent employee enclosing copy of enquiry report. [Boloram Bordoloi v. Lakhimi Gaolia Bank, (2021) 3 SCC 806]

Service Law — Judiciary — Recruitment process — Notification of vacancies — Periodicity with which to be made: While harmonising R. 7(2) of the Kerala Judicial Service Rules, 1991 with Malik Mazhar Sultan (3), (2008) 17 SCC 703, held, once process of selection is annual, notification of probable or anticipated vacancies must be for the selection year. Recruitment over and above notified vacancies, not permissible. [High Court of Kerala v. Reshma A., (2021) 3 SCC 755]

Specific Relief Act, 1963 — S. 38: In this case, suit for permanent injunction to restrain defendants from disturbing peaceful possession and enjoyment of plaintiff over the suit property was filed. Peaceful possession of the suit property by plaintiff was established on record and admitted by defendant. There being no dispute as to title, nor plaintiff raising any issues as to its title in the suit, as defendant’s prior suit for declaration of title and possession of the suit property standing dismissed and such dismissal attaining finality. [A. Subramanian v. R. Pannerselvam,(2021) 3 SCC 675]

Speedy resolution of arbitral disputes: In this article, the author states that while adjudicating appeals under Section 37, the Courts ought to be circumspect before condoning long delays, considering the objective of expeditious disposal of disputes under the Arbitration Act and prejudice being caused to the non-defaulting party. Appeal Under Section 37 Of The Arbitration And Conciliation Act, 1996 — To Condone Or Not To Condone Delay Beyond 120 Days, That Was The Question! By Sidharath Goyal [(2021) 3 SCC (J-56)]

Transfer of Property Act, 1882 — Ss. 58(f) & 96 and Ss. 40 Pt. II, 53-A & 54 — Mortgage by deposit of title deeds: In this case it was held that reference of the question regarding if a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title, to present larger Bench, not required to be answered in the peculiar facts and circumstances of the case, as allotter is estopped from challenging the mortgage sale of the property in question by the mortgagee Bank, as it had itself issued the permission to create a charge on the property in question, even though the allottee had only been issued an allotment letter. [Syndicate Bank v. A.P. Industrial Infrastructure Corpn. Ltd., (2021) 3 SCC 736]

Violation of fundamental rights by a judicial order: The protection and enforcement of fundamental rights and freedoms is both the power and duty of the courts and the grant of appropriate remedy is not discretionary but obligatory. This article discusses the issues regarding violation of fundamental rights by a judicial order and remedies against it. Courts — Guardian Of Our Liberties: Judicial Orders Can Violate Fundamental Rights? By V. Sudhish Pai [(2021) 3 SCC (J-44)]

Cases ReportedSupreme Court Cases

SCC Issue dated April 14th, 2021 (Vol. 3 Part 4)

In this part, read the important judgment on right to life and liberty, deftly analysed by our editors in over 7 shortnotes, where the Supreme Court has held that custodial violence involving police atrocities which resulted in passing away of the deceased is a crime against humanity and a clear violation of rights guaranteed  under Article 21. It is held that permission for compounding such offence cannot be granted by the court, regardless of any settlement entered into by the parties.  [Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529]

Short Notes: 8


Constitution of India — Art. 21 — Offences involving police brutality/atrocities and which are compoundable with permission of court: Permission for compounding of such offences involving police brutality/atrocities cannot to be granted by court. When the police is a violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instil confidence in the society. Offences involving police brutality are crimes not against the victim alone but against humanity and a clear violation of rights guaranteed under Art. 21. Thus, permission for compounding of such offences cannot be granted by court, regardless of any settlement entered into by the parties. [Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529]

Recovery of Debts and Bankruptcy Act, 1993 — S. 21 and proviso thereto — Condition of pre-deposit under S. 21 — Mandatory nature of: Discretion of DRAT to reduce pre-deposit amount from 50% of debt due, held, is limited to reducing the pre-deposit to 25% thereof. The pre-deposit cannot under any circumstances be reduced below 25% of the debt due. [Kotak Mahindra Bank (P) Ltd. v. Ambuj A. Kasliwal, (2021) 3 SCC 549]

Civil Procedure Code, 1908 — S. 89: True intendment of S. 89 is legally arrived at settlement of disputes outside court without intervention of courts, and not necessarily by only the modes prescribed in S. 89, nor necessarily upon direction of court. Settlement of disputes outside court and refund of court fees is permissible even in cases in which parties, without any reference by court, privately agree to settle their dispute outside modes contemplated under S. 89 CPC and such settlement is legally arrived at. [High Court of Madras v. M.C. Subramaniam, (2021) 3 SCC 560]

Constitution of India — Sch. VII List I Entry 23 and List II Entry 13 and Arts. 246, 73, 257 and Pt. XI Ch. II (Arts. 256 to 263) — Legislative and Executive power of Union under List I Entry 23 i.e. in respect of highways designated as national highways: Provisions of the Constitution unambiguously indicate that legislative as well as executive power regarding all matters concerning and connected with highways designated as national highways, vest exclusively in Union and are governed by laws made by Parliament alone in that regard. For the same reason, complete executive power in respect of highways designated as national highways also vests with Union, including the power to acquire land therefor and construct and develop the same. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between Union and States makes it amply clear that executive power of every State shall be so exercised as to ensure compliance with laws made by Parliament and any existing laws which apply in that State, and executive power of Union shall extend to giving of such directions to a State as may appear to Government of India to be necessary for that purpose. Hence, Union also has the power to issue directions to State Government concerned for the development of national highways, in accordance with the National Highways Act, 1956. [Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572]

Legal RoundUpSupreme Court Roundups

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

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


UNMISSABLE STORIES 


Practice and Procedure

Open for Courts to order house arrest under Section 167 CrPC

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

Read more…

Judges need to be extra careful while conducting criminal trials relating to dowry deaths

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

Read guidelines

“No coercive measures to be taken”| Can High Courts pass such blanket orders while refusing to quash investigation? Here’s the law laid down by the Supreme Court

“Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law.”

Read more...

Apprehension of COVID-19 a ground for anticipatory bail: Supreme Court stays Allahabad High Court’s order

The vacation bench of Vineet Saran and BR Gavai, JJ has stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

Read more…


NCLT/NCLAT vacancies

39 members for a sanctioned strength of 63! Supreme Court asks Centre to complete reappointment process within 2 months

“As the Government has already initiated the process of reappointment by writing to the Hon’ble Chief Justice, we trust and hope that the reappointment process should be completed expeditiously, as there is no necessity of issuance of any advertisement for participation of other eligible candidates.”

Read more…


Sedition

Supreme Court to decide constitutionality of Section 124A IPC

The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void. The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

Read why Section 124A IPC came into force and why 5-judge bench in Kedar Nath Singh verdict found it constitutional

Need to interpret sedition law in context of freedom of media; No coercive steps against TV5, ABN till next hearing

The two channels had broadcasted certain programmes wherein Raghurama Krishnam Raju, Member of Parliament had allegedly expressed views critical of the State Government and the Chief Minister. While Raju, has been named as the first accused, TV5 and ABN have been named as the second and third accused.

Read more…


Free Press/ Freedom of Speech and Expression

Madras High Court’s remarks harsh, metaphor inappropriate but can’t be expunged; Supreme Court junks EC’s plea seeking restrain on Media reporting Court proceedings

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”.

Read more…

Open courts and freedom of media to report Court Proceedings: Unmissable Supreme Court quotes and the iconic Lokmanya Balgangadhar Tilak’s sedition trial

“Acceptance of a new reality is the surest way of adapting to it. Our public constitutional institutions must find better responses than to complain.”

Read more…


BOWC Cess

Levy of building cess on a contract for supply and delivery of equipment and materials? Impermissible, holds Supreme Court

In the case where Uttar Pradesh Power Transmission Corporation Ltd had levied cess on CG Power and Industrial Solutions Limited based on CAG report only and had withheld dues in respect of other contracts, the bench of UU Lalit and Indira Banerjee*, JJ has termed such levy a forcible extraction of cess.

Read more…


Insolvency and Bankruptcy Code

Nothing wrong with IBC Notification treating personal guarantors differently from other categories of individuals

Adding to the series of verdicts on the Insolvency and Bankruptcy Code, 2016, the bench of L. Negaswara Rao and S. Ravindra Bhat* has upheld the legality of the notification dated 15.11.2019 which notified provisions of Part III of the Code only in respect of personal guarantors to corporate debtors and has held that approval of a resolution plan does not ipso facto discharge a personal guarantor to a corporate debtor of her or his liabilities under the contract of guarantee.

Read more…


COVID-19 STORIES


National Task Force for allocation of oxygen to States: Who are the experts and what will they do? All you need to know

“Estimating projected needs is crucial to ensure that the country remains prepared to meet future eventualities, which will cause a demand for oxygen, medicines, infrastructure, manpower and logistics.”

Read more…

Schools can’t profit from unutilised facilities; Rajasthan Schools to provide 15% deduction of annual fees for academic year 2020-21: Supreme Court

“The school Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”.”

Read more…

Dry Ration/Community kitchen for stranded migrant workers; Common National Database for all organised workers: Supreme Court issues directions

“…for accessing of any benefit percolating from any scheme framed by the Centre or the States for the benefit of unorganized workers or migrant workers, registration of workers is essential, which registration shall facilitate the unorganized workers to assess the scheme and reap the benefit.”

Read more…

Limit arrests, release prisoners on parole: Read Supreme Court directions on containing COVID-19 spread in overcrowded prisons

India has more than four lakh prison inmates. Some of the prisons in India are overburdened and are housing inmates beyond optimal capacity.

Read more…

What is your policy for issuing death certificates in case of COVID-19 deaths? How do you provide compensation? Supreme Court issues notice to Central Government

It was argued before the Court that,

  1. under the revised list of items and norms of assistance from State disaster response fund which is part of the letter dated 08.04.2015, Rs.4,00,000/- as exgratia compensation is required to be made.
  2. there is no uniform policy for issuing the certificate or any official document regarding causes of death to the deceased families due to which there is a difficulty on availing various benefits.

 Read more…


MORE STORIES


No default bail to Gautam Navlakha

The Court held that the house arrest of the appellant was not purported to be under Section 167 and hence, cannot be included within the period of 90 days under Section 167 of CrPC. 

Read more…

After one year of marriage, woman burnt to death over dowry. Supreme Court finds accused guilty; explains the true import of “soon before” under Section 304-IPC

“When the legislature used the words, “soon before” they did not mean “immediately before”. Rather, they left its determination in the hands of the courts.”

Read more…

Narada Scam Case| CBI withdraws appeal from Supreme Court against Calcutta High Court’s order putting TMC leaders under house arrest

After accepting the fact that the Narada Scam Case is being heard by a 5-judge bench of the Calcutta High Court, the Central Bureau of Investigation has withdrawn the case filed before the Supreme Court challenging the May 21 order of the High Court that had put the 4 TMC Leaders under House Arrest.

Read more…


EXPLAINERS


Interpretation of Contracts: Not our duty to delve deep into the intricacies of human mind: Supreme Court

When can High Court entertain a writ petition, notwithstanding the availability of an alternative remedy?


IN OTHER NEWS


Supreme Court’s E-Committee releases Manual for its free “e-Courts Services Mobile App” in 14 languages

Cases ReportedSupreme Court Cases

SCC Issue dated April 7th, 2021 (Vol. 3 Part 3)

In this part read a very important decision delivered by the Supreme Court running into over 90 pages which have been expertly analysed by our editors. Supreme Court has discussed the mode of dealing with withheld securities of a defaulting member by National Stock Exchange of India/National Securities Clearing Corporation Limited, consequent to his expulsion.[Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., (2021) 3 SCC 401]

Short Notes: 4

Advocates before the Court:

For appellants:  Senior Advocate Siddhartha Mitra and Advocates-on-record Ashok Mathur and Devashish Bharuka

For Respondent(s): Senior Advocate Shyam Divan and Adocates-on-Record. S. S. Shroff, Rabin Majumder, Bhargava V. Desai


Civil Procedure Code, 1908 — Or. 14 R. 2 — Framing of preliminary issue — Issues in regard to maintainability of suit: Framed issues relating to maintainability of suit, held, if taken up and decided by trial court as preliminary questions of law would cause no prejudice to appellant-plaintiff. [Santosh Kumar v. Ashok Chand, (2021) 3 SCC 385]

Constitution of India — Art. 21: Right to marry person of one’s choice is integral to Art. 21. Autonomy of an individual inter alia in relation to family and marriage is integral to the dignity of the individual. Training programme to be devised, and guidelines to be issued by police authorities in this regard. [Laxmibai Chandaragi B. v. State of Karnataka, (2021) 3 SCC 360]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Establishment, Running, Closure and Nationalisation of Medical/Dental Colleges — Affiliation/Recognition — Purpose of/Entitlement to/Prerequisites for/Competent Authority/Time-Schedule: In this case, denial of permission to College to admit students for particular academic years, held, fully justified, as College concerned had not utilised opportunities given to it to rectify deficiencies, and on the relevant date, as per time-schedule fixed in respect of permissions to be granted for the next academic year, application for renewal of permission had not been filed in time. [Chintpurni Medical College & Hospital v. Union of India, (2021) 3 SCC 374]

Family and Personal Laws — Judicial Intervention/Family Courts/Judges/Officers — Alternative Dispute Resolution/Mediation/Conciliation/Compromise — Mediation — Matrimonial dispute: In this case, there was reference to mediation on consent of counsel. Directions were issued as to expenses and interaction of child with parent and family of parent whose custody it was not in. [Roopsi Varun Gupta v. Varun Vikram Gupta, (2021) 3 SCC 373]

Insolvency and Bankruptcy Code, 2016 — Ss. 5(7) and 5(8), 43, 45(2), 49, 50 and Ss. 7 to 9 — Financial creditor — Who is: Collusive/Sham transactions cannot amount to “financial debts” under IBC. Under S. 5(7) a person can be categorised as a financial creditor if a financial debt is owed to it. S. 5(8) stipulates that the essential ingredient of a financial debt is disbursal against consideration for the time value of money. A transaction which is sham or collusive would only create an illusion that money has been disbursed to a borrower with the object of receiving consideration in the form of time value of money, when in fact the parties have entered into the transaction with a different or an ulterior motive i.e. the real agreement between the parties is something other than advancing a financial debt. Further, IBC recognises that for the success of an insolvency regime, the real nature of the transactions has to be unearthed in order to prevent any person from taking undue benefit of its provisions to the detriment of the rights of legitimate creditors. [Phoenix ARC (P) Ltd. v. Spade Financial Services Ltd., (2021) 3 SCC 475]

Land Acquisition Act, 1894 — Ss. 11, 4, 6 and 18 — Acquisition of land: In this case of dispute over approval of award and reopening of acquisition proceedings, approval of award supported by material on the record, compensation paid thereunder and possession of the land handed over to the Government. Resultantly, reopening of acquisition proceedings by way of re-notification of the already acquired land under S. 4 of the LA Act by the Government, reiterated, is not permissible. Furthermore, as award had been approved before coming into force of the 2013 Act, S. 24(1)(a) of the 2013 Act would not be applicable. [Assam Industrial Development Corpn. Ltd. v. Gillapukri Tea Co. Ltd., (2021) 3 SCC 388]

Penal Code, 1860 — S. 302 and S. 53 Secondly: Imposition of sentence of life imprisonment by trial court with direction that it shall be for remainder of natural life, held, not permissible. Such power of imposing a fixed term of imprisonment, or for the remainder of natural term of life of convict, while imposing a sentence of life imprisonment, held, is available only to High Court and Supreme Court, and not the trial court. [Gauri Shankar v. State of Punjab, (2021) 3 SCC 380]

Penal Code, 1860 — S. 302 or S. 304 — Murder or culpable homicide — Death due to septicaemia: There is no absolute proposition of law that in all cases where deceased died due to septicaemia, case would fall under S. 304. The same has to be determined in the facts and circumstances of each case. [Khokan v. State of Chhattisgarh, (2021) 3 SCC 365]

SEBI (Stockbrokers and Sub-Brokers) Regulations, 1992 — Circular dt. 19-5-1997 issued by NSCCL and adopted by Exchange, prescribing trading/exposure limits coupled with sanctions for non-compliance i.e. operational parameters — Vires of: In this case, Circular in question pertained to trading/exposure limits coupled with sanctions in case of non-compliance and the Exchange adopted the circular from the Clearing Corporation and notified it in the form of operational parameter. The Supreme Court held that the legislature has bestowed upon the Exchange sufficient freedom of action to effectively control and regulate the functioning of stockbrokers who use the Exchange as a means to enter into financial relationships with the investors and common public. Further, this freedom of action is guaranteed in the preapproved Bye-laws which enable the Exchange to frame Regulations, instructions, operational parameters, notice, etc. and bring them into force without subjecting them to any added condition of prior approval of the Central Government/SEBI. The only limitation on this power of the Exchange is that such Regulations or operational parameters issued under the Bye-laws are subject to the 1956 Act, the 1992 Act and the Rules framed thereunder. Further, rejecting the challenge to the legal sanctity of the circular, held, since the Bye-laws and Rules of the Exchange are duly approved by the Central Government/SEBI, it can safely be stated that actions taken by the Exchange under the Bye-laws or Regulations. By prescribing such operational parameters in the form of a circular and in consequence thereof would assume enforceable character. [Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., (2021) 3 SCC 401]

Transfer of Property Act, 1882 — Ss. 122 and 123 — Gift of immovable property when becomes complete — Acceptance of gift: Acceptance by or on behalf of donee must be made during lifetime of donor and while he is still capable of giving. Execution of gift deed registered and attested in accordance with S. 123 TPA, and acceptance of such gift make gift of immovable property complete. Thereafter, donor is divested of the title or interest being gifted, and donee becomes owner of the gifted property, estate or interest. [Daulat Singh v. State of Rajasthan, (2021) 3 SCC 459]

Cases ReportedSupreme Court Cases

SCC Issue dated April 7th, 2021 (Vol. 3 Part 2)

In this part read a very important decision delivered by the Supreme Court with respect to Consumer Protection Act which was expertly analysed by our editors in over 7 short notes. Supreme Court observed that “Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”[IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241]

Short Notes: 7


Constitution of India — Arts. 32, 21, 19(1)(a) and (2) — Multiple FIRs against anchor of news debate show, on grounds of fomenting hatred amongst communities/hate speech — Interim stay and other directions — When warranted: In this case, ad interim stay was imposed on instituted criminal proceedings and possible FIRs relating to same telecast. Notice was issued and petitioner was directed to implead complainants and serve notice on newly added respondents. [Amish Devgan v. Union of India, (2021) 3 SCC 306]

Consumer Protection — Cause of Action — Unfair trade practice — Directions, declaration and relief that may be granted by Consumer Forums in case of: S. 14 of the CPA, 1986 empowers Consumer Fora to redress deficiency of service by issuing directions to opposite party, and compensate consumer for loss or injury caused by opposite party, or discontinue unfair or restrictive trade practices. Even under the CPA, 1986, powers of Consumer Fora are in no manner constrained to declare a contractual term as unfair or one-sided as an incident of power to discontinue unfair or restrictive trade practices. An “unfair contract” has been defined under the CPA, 2019, and powers have been conferred on State Consumer For a and National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which is implicit under the CPA, 1986. [IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241]

Designs Act, 2000 — S. 22(4) — Jurisdiction of court: Jurisdiction over infringement suits in which defendant seeks revocation of registration of design vests in High Court under S. 22(4) of the 2000 Act, even when the High Court does not exercise original side jurisdiction. Operation of S. 22(4) of the 2000 Act is not affected by the Commercial Courts Act, 2015. [S.D. Containers v. Mold-Tek Packaging Ltd., (2021) 3 SCC 289]

Evidence Act, 1872 — S. 92 Proviso (6) r/w Ill. (f) and Ss. 94 and 95 — Entirety of correspondence, as opposed to a single/some correspondence(s): When there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to “existing facts”, which include how particular words are used in a particular sense, given the entirety of correspondence between the parties. Further, after the application of Proviso (6) to S. 92, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts. If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the aforesaid words meaningful in the context of the entirety of the correspondence between the parties. [Anglo American Metallurgical Coal Pty. Ltd. v. MMTC Ltd., (2021) 3 SCC 308]

Insolvency and Bankruptcy Code, 2016 — S. 10-A (as inserted by Ordinance 9 of 2020 promulgated on 5-6-2020 followed by Amending Act 17 of 2020) r/w Ss. 5(11), 7, 9 and 10 — Bar against filing of applications for initiation of corporate insolvency resolution process (CIRP) in relation to defaults committed on or after 25-3-2020 for a period of six months, extendable to one year — Nature of: Said bar is retrospective in nature, and is thus applicable to applications filed prior to insertion of S. 10-A i.e. prior to 5-6-2020. Use of the expressions “shall be filed” and “no application shall ever be filed”, do not affect the retrospective applicability of such bar. The language of the provision is not always decisive to arrive at a determination whether the provision is applicable prospectively or retrospectively. The substantive part of S. 10-A is to be construed harmoniously with the first proviso and the Explanation. Reading the provisions together, it is evident that Parliament intended to impose a bar on filing of applications for commencement of CIRP in respect of a corporate debtor for a default occurring on or after 25-3-2020, the embargo remaining in force for a period of six months, extendable to one year. Thus, the embargo contained in S. 10-A must receive a purposive construction which will advance the object which was sought to be achieved by enacting the provision. Further held, the (retrospective) bar on the filing of applications for the commencement of CIRP during the stipulated period does not extinguish the debt owed by the corporate debtor or the right of creditors to recover it. [Ramesh Kymal v. Siemens Gamesa Renewable Power (P) Ltd., (2021) 3 SCC 224]

Institution of criminal proceedings for sexual offences involving children: Sexual abuse has an inherent social stigma having lifelong adverse consequences for the victims, resulting in a reluctance to report the crime. The callous and unprofessional attitude of law enforcement agencies further foments self-blame and victim-shaming tendencies and breeds discontent and despair amongst victims and their families. Lack of fair and scientific investigation and unusual delay in court proceedings also results in general in acquittal of the rape accused. Pendency of cases in trial courts is very high and is growing every year. Timely reporting and registration of cases are essential requisites for instituting criminal proceedings. This article attempts to deal with various steps and intricacies involved at various stages in dealing with sexual offences involving children. Procedural road map for handling child sexual abuse under the POCSO Act, 2012,  by Dr G.K. Goswami & Aditi Goswami, (2021) 3 SCC (J-1)]

Penal Code, 1860 — S. 300 Exception 4 — Applicability of: In this case, considering relevant materials, the injuries, held, were inflicted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the appellant having taken advantage or acted cruelly or unusually. Resultantly, the case, held, fell under S. 300 Exception 4. Thus, appellant held liable under S. 304 Pt. I. [Pardeshiram v. State of M.P., (2021) 3 SCC 238]

Punjab Village Common Lands (Regulation) Rules, 1964 — R. 12(4) [as incorporated vide Noti. dt. 3-1-2008]: Necessary requirements for sale of non-cultivable panchayat land to inhabitants of village who constructed their houses on such land as prescribed in the Rules, must strictly be complied with. In this case, claimants being in illegal occupation of panchayat land cannot, as a matter of right, claim regularization. Regularisation of the illegal occupation can only be as per the policy of the State Government and strictly as per the conditions stipulated in the Rules. Even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat, if the conditions for regularisation are not satisfied. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. [Joginder v. State of Haryana, (2021) 3 SCC 300]

Cases ReportedSupreme Court Cases

SCC Issue dated March 28th, 2021 (Vol. 3 Part 1)

In this part read a very important decision delivered by the Supreme Court in Prashant Bhushan Contempt Matter. The 82-pages judgment is expertly analysed by our editors in over 16 short notes. The Supreme Court sentenced Advocate Prashant Bhushan to pay a fine of Re 1 failing which he would have undergone imprisonment of 3 months and further be debarred from practising in the Supreme Court for 3 years.[In re: Prashant Bhushan, 2020 SCC OnLine SC 698]

Short Notes: 16


Arbitration and Conciliation Act, 1996 — S. 12(5) (as amended by the 2015 Amendment Act) r/w Sch. VII Item 5 and S. 29-A(6) — Mandatory and non-derogable nature of S. 12(5): Appointment of Principal Secretary, Government of Haryana as the nominee arbitrator of HARSAC, a nodal agency of the Government of Haryana i.e. appointment of an arbitrator having controlling influence in contravention of S. 12(5), not permissible. [Haryana Space Application Centre v. Pan India Consultants (P) Ltd., (2021) 3 SCC 103]

Central Sales Tax Act, 1956 — S. 5(2) r/w S. 3(a): Exemption under S. 5(2) i.e. regarding cases where sales take place in the course of the import of the goods into territory of India is not applicable to sales made post crossing of the customs frontiers. Meaning of the expression “sale in the course of import”, explained. Relevance of bill of lading, bill of entry and import general manifest (IGM), for ascertaining the true “importer” of goods, also discussed. [Vellanki Frame Works v. CTO, (2021) 3 SCC 39]

Competition Act, 2002 — S. 19(1) r/w Ss. 2(f), 53-B and 53-T — Locus standi to give information to CCI for CCI to initiate proceedings under the Competition Act: Contrasting the definition of “consumer” from “person”, held, the definition of “person” in S. 2(l) of the Competition Act, is an inclusive one and is extremely wide and includes individuals of all kinds and every artificial juridical person. Further, consequent upon the substitution of the expression “receipt of a complaint” with the expression “receipt of any information in such manner and” in S. 19(1) of the Competition Act, held, whereas a complaint could be filed only from a person who was aggrieved by a particular action, information may be received from any person, obviously whether such person is or is not personally affected and this is for the reason that the proceedings under the Competition Act are proceedings in rem which affect the public interest. Further, a “person aggrieved” must, in the context of the Competition Act, be understood widely and not be constructed narrowly. When CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching CCI and the appellate authority i.e. NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Competition Act. [Samir Agrawal v. CCI (Cab Aggregators Case), (2021) 3 SCC 136]

Constitution of India — Art. 137 — Review — Grounds for: Change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. Review petition against Supreme Court decision on a particular issue, filed during pendency of reference of question of law pertaining to that same issue to a larger Bench is not a ground for disposal of review petition only after that decision. [Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1]

Contempt of Court — Nature and Scope — Freedom of speech/expression and contempt of court — Balance between rights and restrictions — Scope of, especially when lawyers are contemnors: Lawyers’ noble profession will lose all its significance and charm and dignity if lawyers are permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are apart. Exercise of power under Art. 129 of the Constitution, does not interfere with the rights under Art. 19(1)(a) of the Constitution. No doubt, free speech is essential to democracy, but it cannot denigrate one of the institutions of democracy. Rights under Art. 19(1)(a) are subject to reasonable restrictions under Art. 19(2) and rights of others cannot be infringed in the process. [Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160]

Contract and Specific Relief — Formation of Contract — Offer and Acceptance — Invitations to offer/Counter-offers: Conditional acceptance of offer i.e. acceptance with a variation of terms of tender does not lead to a concluded contract, when such condition is not accepted. Compensation for refusal to discharge obligation/breach of contract is not grantable, in the absence of such non-concluded contract. [Padia Timber Co. (P) Ltd. v. Visakhapatnam Port Trust, (2021) 3 SCC 24]

Education Law — Employment and Service Matters Re Educational Institutions — Appointment/Recruitment — Appointment of College Hostel Warden — Competent authority — Compliance with prescribed procedure — Necessity of: In this case, competent authority for appointment of College Hostel Warden is the Governing body and not Principal of College, hence, appointment of R-1 directly made by Principal R-3 without approval of Governing Body, held invalid. [Daulat Ram College v. Asha, (2021) 3 SCC 121]

Industrial Disputes Act, 1947 — S. 11-A — Failure to hold enquiry before dismissal/discharge — Entitlement of employer to lead evidence before Labour Court/Tribunal to justify its action: Where employer fails to hold enquiry before dismissal or discharge of workman, he can justify his action by leading evidence before Labour Court. Labour Court has jurisdiction to satisfy itself on evidence adduced as to justifiability of order of discharge or dismissal. [State of Uttarakhand v. Sureshwati, (2021) 3 SCC 108]

Penal Code, 1860 — S. 366 — Kidnapping, abducting or inducing woman to compel her marriage, etc. — Ingredients of S. 366: S. 366 postulates that once prosecution leads evidence to show that kidnapping was with intention/knowledge to compel marriage of girl or to force/induce her to have illicit intercourse, enhanced punishment of 10 yrs as provided thereunder would stand attracted. [Anversinh v. State of Gujarat, (2021) 3 SCC 12]

Service Law — Pension — Entitlement to pension: In this case, the clarification of Supreme Court judgment dt. 30-1-2018 directing respondent State to pay pension to 214 eligible persons in list in accordance with pension scheme, names of appellants were included in the list. Hence held, they cannot be denied pension on ground that only those persons who retired between 11-5-1995 and 30-6-1999 would be eligible for pension. [Darshan Singh v. State of Punjab, (2021) 3 SCC 119]

Cases ReportedSupreme Court Cases

SCC Issue dated March 14th, 2021 (Vol. 2 Part 4)

Read the Supreme Court order in the suo motu matter of proper treatment of COVID-19 patients and dignified handling of dead bodies in hospitals, where the Court took note of the precarious plight of corona patients and occurence of fire in hospitals and nursing homes. Multiple set of directions concerning different aspects of treatment of COVID-19 patients, their safety and prevention of spread of corona virus were issued.[Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re., (2021) 2 SCC 519]


Constitution of India — Arts. 19(1)(a) & (2), 14, 51-A(c) & (e) and 32 — Pre-broadcast injunction, when necessary and warranted: In this case, prima facie content, tenor and object of telecast in question (to vilify a particular community) violated the Constitution and statutory provisions. High Court had also restrained the broadcast of proposed programme. The Supreme Court held that it is necessary to interdict any further telecast. Pending further orders, television channel in question injuncted from making any further telecast in continuation of or similar to the episodes which were telecast on 11- 9-2020, 12-9-2020, 13-9-2020 and 14-9-2020 either under the same or any other title or caption. [Firoz Iqbal Khan v. Union of India, (2021) 2 SCC 591]

Constitution of India — Arts. 19(1)(a) & (2), 14, 51-A(c) & (e) and 32 — Pre-broadcast injunction on the basis of an unverified transcript: In this case, allegedly, the clip to be aired contained statements derogatory of the entry of a particular community into the civil services. The Supreme Court held that Court has to be circumspect in imposing a prior restraint on publication or the airing of views. Prayer for interlocutory injunction was declined and notice was issued as matter prima facie involved violation of fundamental rights and statutory rights. There should be a balance between fundamental right to free speech and expression and the fundamental right to equality and fair treatment for every segment of citizens. [Firoz Iqbal Khan v. Union of India, (2021) 2 SCC 596] 

Constitution of India — Sch. VII List I Entry 66 and List III Entry 25: Impact of Entry 66 of List I on Entry 25 of List III must be determined by reading of Central Act and State Act conjointly. State Law providing for standards in institutions for higher education or research and scientific and technical institutions, having regard to Entry 66 of List I, would be struck down as unconstitutional only if the same is found to be so heavy or devastating as to wipe out or appreciably abridge Central field and not otherwise. When a State Act is in aid of parliamentary Act, the same would not entrench upon latter. Thus, University/State Government concerned certainly has the power to fix higher eligibility criteria than the minimum prescribed by Central Governing Body/AICTE, to achieve excellence in education. [A.P.J. Abdul Kalam Technological University v. Jai Bharath College of Mngt. & Engg. Technology, (2021) 2 SCC 564]

Criminal Procedure Code, 1973 — S. 167(2) — Default bail — Accused’s right to default bail — When becomes indefeasible — Scope of such right: The moment accused files application for bail on default of investigating agency in filing charge-sheet within prescribed period and offers to furnish bail bond as directed by court, he is deemed to have “availed of” his indefeasible right to be released on bail. “Availed of” means actual release from custody by furnishing bail and complying with terms and conditions of bail order within time stipulated by court. [M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485]

Delhi Special Police Establishment Act, 1946 (25 of 1946) — Ss. 5 and 6 — Scope of: Though S. 5 enables Central Government to extend powers and jurisdiction of Members of DSPE beyond Union Territories to a State, same is not permissible unless State grants its consent for such extension within area of State concerned under S. 6. Provisions are in tune with federal character of Constitution, which is part of the basic structure of the Constitution. [Fertico Mktg. & Investment (P) Ltd. v. CBI, (2021) 2 SCC 525]

Disaster Management Act, 2005 — S. 10 — COVID-19: Affixation of posters outside residences of persons who are COVID-19 positive and are required to stay in home isolation, held, not required as per applicable Guidelines as they currently stood. The same would become permissible only if appropriate directions/guidelines to that effect are issued by competent authority under 2005 Act. [Kush Kalra v. Union of India, (2021) 2 SCC 481]

Government Contracts and Tenders — Blacklisting/Downgrading of Contractor/Tenderer from participating in future bids — Requirements of show-cause notice to constitute valid basis of blacklisting order: For a show-cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the notice. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting. [UMC Technologies (P) Ltd. v. Food Corpn. of India, (2021) 2 SCC 551]

Homoeopathy Central Council Act, 1973 — Ss. 33 and 24 r/w Regn. 6 of the 1982 Regulations: Direction by High Court to authorities to take appropriate action if Homoeopathic practitioners made any advertisement or prescribed any drugs or medicines with a claim that it is a cure for COVID-19 disease, not warranted in light of statutory regulations prohibiting advertisement for solicitation of patients personally or advertisement in the newspaper, by Homoeopathic practitioners. Particularly, when only relief claimed in writ petition was to direct State Authorities concerned to allow Homoeopathic practitioners to perform in accordance with guidelines of Ministry of AYUSH to ameliorate the effects of COVID-19 Pandemic. [Dr AKB Sadbhavana Mission School of Homeo Pharmacy v. Ministry of Ayush, (2021) 2 SCC 539]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — Spread of Coronavirus (COVID-19) — Precarious plight of Coronavirus Patients and occurrence of fire in hospitals and nursing homes: Multiple sets of directions concerning different aspects of treatment of COVID-19 patients, their safety and prevention of spread of COVID-19, issued. [Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re., (2021) 2 SCC 519]

Penal Code, 1860 — Ss. 302/34, 324/34, 325/34 and 323: In this case, there was assault by accused persons using weapons, leading to death of 2 persons and injuries to 3 others. Appellant-accused and 3 others whether shared common intention to murder. Injured witnesses (parents of one deceased victim) were found reliable and truthful. There was no reason why they would falsely implicate another, when deceased was their own minor son. Evidence of injured witnesses stood corroborated by medical evidence. Bloodstained lathi and bloodstained clothes of appellant were recovered on his confession and sharing of common intention to murder on the part of appellant-accused, held, was clearly evident. Hence, conviction of appellant under Ss. 302/34, stood confirmed. [Asharam Tiwari v. State of M.P., (2021) 2 SCC 608]

Penal Code, 1860 — Ss. 363 and 366-A — Quashment of proceedings against co-accused — When warranted: In this case, dismissal of quashment petition filed by co-accused after acquittal of main accused, was held not justified, when evidence of prosecutrix and complainant shows that there is no allegation whatsoever against the appellant co-accused. Hence, proceedings quashed against appellant co-accused. [Vishwas Bhandari v. State of Punjab, (2021) 2 SCC 605]

Penal Code, 1860 — Ss. 376, 376(2)(a), 376(2)(g) & 34 r/w S. 228-A (as inserted by Amendment Act 43 of 1983) — Rape victim: In this case, victim was held entitled to treatment as rape victim by all authorities for grant of compensation and other rehabilitation measures for herself and her children, such as free education for the children, housing, police security and other measures. Hence, further directions for relief and rehabilitation of victim and her children, in the facts and circumstances of the case, issued. [X v. State of Jharkhand, (2021) 2 SCC 598]

Service Law — Departmental Enquiry — Judicial review/Validity — Scope — Limited — Principles summarized: Power of judicial review exercised by constitutional courts under Arts. 32/136/226 of the Constitution is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and is not akin to adjudication of case on merits as an appellate authority. Examination by Court is limited to determining whether (i) Enquiry was held by competent authority; (ii) whether there was compliance with principles of natural justice; and (iii) whether findings were based on some evidence and whether authority had jurisdiction to arrive at conclusion. Further held, in exercise of jurisdiction of judicial review, courts would not interfere with findings of facts arrived at in disciplinary proceedings except in case of mala fides or perversity i.e. where there is no evidence to support finding or finding is such that no reasonable man could arrive at. Where there is some evidence to support finding arrived at in departmental proceedings, same must be sustained. [SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612]

Service Law — Retirement/Superannuation — Voluntary retirement — Regn. 29 of the Indian Bank Employees Pension Regulations, 1995: Rejection of request for voluntary retirement by an unreasoned order on last day of notice period, not proper. [Indian Bank v. Mahaveer Khariwal, (2021) 2 SCC 632]

Cases ReportedSupreme Court Cases

SCC Issue dated March 7th, 2021 (Vol. 2 Part 3)

In this part read a very important decision delivered by the Supreme Court and expertly analysed by our editors in over 17 short notes, wherein the Court, exercising powers under Article 142 of the Constitution, issued guidelines and directions laying down uniform and consistent standards for ensuring timely disposal of applications seeking maintenance under all the applicable statutes.[Rajnesh v. Neha, (2021) 2 SCC 324]

Short Notes: 17

Advocates who appeared in the case:

Anitha Shenoy and Gopal Sankaranarayanan, Senior Advocates (Amici Curiae)


Companies Act, 2013 — S. 434 [as substituted and amended up to Act 26 of 2018]: Transfer of winding-up proceedings from High Court to NCLT, even after the winding-up notice has been served on the respondent, permissible, provided it is at the instance of a party to the proceedings i.e. person concerned is covered under the 5th proviso to S. 434(1)(c). [Kaledonia Jute & Fibres (P) Ltd. v. Axis Nirman & Industries Ltd., (2021) 2 SCC 403]

Constitution of India — Art. 21: Duty of courts at all levels: Basic rule of our criminal justice system is “bail, not jail”. High Courts and courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving the Supreme Court to intervene at all times. Role of the district judiciary is of great importance, which provides the first point of interface to the citizen. Use of technology to monitor the pendency and disposal of cases, including criminal cases, emphasized. [Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427]

Constitution of India — Preamble and Arts. 39, 15(3) and 142 — Maintenance to wife, children and parents — Overlapping statutes — Remedy of maintenance in both secular laws and personal laws: Guidelines under Art. 142 of the Constitution laying down uniform and consistent standards and for ensuring timely disposal of applications seeking maintenance under all the applicable statutes, issued. Simultaneous operation of statutes would lead to multiplicity of proceedings and conflicting orders. This process requires to be streamlined so that the respondent-husband is not obligated to comply with successive orders of maintenance passed under different enactments. There is no inconsistency between CrPC and the Hindu Adoptions and Maintenance Act, 1956 (HAMA) and both can stand together. Though there are different enactments providing for maintenance, each enactment provides an independent and distinct remedy framed with a specific object and purpose. Provision of maintenance in secular laws like the Special Marriage Act, 1954 (SMA), S. 125 CrPC and the Protection of Women from Domestic Violence Act, 2005 (the DV Act), are irrespective of religious community to which they belong and apart from other remedies provided in personal laws like dissolution of marriage or restitution of conjugal rights, etc. Remedy of maintenance is a measure of social justice as envisaged under the Constitution to prevent wives and children from falling into destitution and vagrancy. Preamble and Arts. 39 and 15(3) of the Constitution envisage social justice and positive State action for the empowerment of women and children. [Rajnesh v. Neha, (2021) 2 SCC 324]

Environment Law — Air Pollution — Air Pollutants/Polluting Industries — Vehicular Pollution — National Auto Fuel Policy, 2003: In this case applications sought registration of three types of vehicles: (a) BS-IV CNG vehicles, (b) BS-IV compliant light and heavy-duty diesel vehicles, and (c) BS-VI compliant vehicles, being used for essential public utility services. Registration was permitted in respect of BS-IV diesel, light and heavy-duty vehicles used for public utility and essential services, where CNG, petrol variants are not available, as per the directions given herein. [M.C. Mehta v. Union of India, (2021) 2 SCC 418]

Environment Law — Air Pollution — Air Pollutants/Polluting Industries — Vehicular Pollution — National Auto Fuel Policy, 2003: In this case, applications for registration of three types of vehicles viz. (a) BS-IV CNG vehicles, (b) BS-IV compliant vehicles, and (c) BS-VI compliant vehicles for being used for essential public utility services, permitted as per the directions given herein. Furthermore, in order to avoid repeated applications before Court, EPCA directed to scrutinise the pending cases and submit a report to Court so that a common order may be passed. [M.C. Mehta v. Union of India, (2021) 2 SCC 423]

Environmental conservation and protection: In this article the author has explained the role and contribution of constitutional courts for protection and preservation of the environment. Environmental conservation and protection: Role and contribution of constitutional courts by Justice Uday U. Lalit [(2021) 2 SCC (J-17)]

Land Acquisition and Requisition — Land Acquisition Act, 1894 — Ss. 54 and 18 — Appeal against enhanced award of compensation by Reference Court: In this case, High Court order permitted claimants to withdraw 50% of 80% of amount as awarded by Reference Court, without furnishing any security. Same was modified to 25% of the entire award amount directed to be deposited by appellant, without any security, as Reference Court had enhanced amount of compensation after a period of approximately 17 yrs (by now 20 yrs), and original claimants were not in a position to furnish any security. Balance 75% of enhanced amount of compensation, together with proportionate cost and interest, as awarded by Reference Court permitted to be invested in a fixed deposit in any nationalised bank with cumulative interest. [Nayara Energy Ltd. v. State of Gujarat, (2021) 2 SCC 477]

Legitimate Interest Test: This article seeks to appreciate the contours of the “legitimate interest” test developed in the United Kingdom, study its application through various rulings handed down by Courts globally, and explores the possibility of the assimilation of the “legitimate interest” test in Indian law and the common law jurisdictions in general. The legitimate interest test (UK) on the Enforceability of liquidated damages clauses and its implications for Indian law by Aditya Shiralkar [(2021) 2 SCC (J-37)]

Non-speaking orders: In this article, the author has explained the nature and power of the Supreme Court under Article 136 of the Constitution of India to pass orders by a non-speaking order and its effect on the justice delivery system and the requirement of recording reasons while passing orders under Article 136 of the Constitution at the first stage by the Supreme Court. Dismissal of SLP under Article 136 at preliminary stage — Whether immune from passing of speaking orders? By Sanjay Bansal [(2021) 2 SCC (J-25)]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 14 (as amended vide Act 44 of 2016): Time-limits stipulated in the section, are directory and not mandatory. In view of the objective of the SARFAESI Act, the time-limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time-limit does not render the District Magistrate functus officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under S. 14 of the 2002 Act for public good to facilitate recovery of public dues. Therefore, S. 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. [C. Bright v. Distt. Collector, (2021) 2 SCC 392]

Cases ReportedSupreme Court Cases

SCC Issue dated February 28th, 2021 (Vol. 2 Part 1)

Read the significant judgment of the Supreme Court expertly analysed by our Editors in over 12 Short Notes. The Judgment held that with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance and hence, in the scheme of the Customs Act, 1962, the Customs Tariff Act 1975 and the Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018, the time at which the notification under Section 8A is published would indeed have relevance.[Union of India v. G.S. Chatha Rice Mills, (2021) 2 SCC 209]

Short Notes: 12


Accounts, Accountants and Accountancy — Chartered Accountants: In this case, by impugned guidelines, Institute of Chartered Accountants of India (ICAI) introduced a cap on number of audit assignments that can be taken up by each Chartered Accountant throughout country. Writ petitions were pending in different High Courts involving a common question of law relating to validity of the said guidelines i.e. Ch. VI of Guidelines No. 1-CA(7)/02/2008 dt. 8-8-2008 issued by Council of ICAI on ground that same is violative of Art. 19(1)(g) of the Constitution. To settle the law and to clear uncertainty among tax professionals and citizens, it was held appropriate that Supreme Court may transfer writ petition, to authoritatively pronounce law on the subject. Transfer petitions were allowed and writ petitions pending in different High Courts withdrawn to Supreme Court. [ICAI v. Shaji Poulose, (2021) 2 SCC 203]

Companies Act, 2013 — Ss. 421(3) and 420(3) — Period of limitation — Commencement of — Inter-relationship between Ss. 420(3) and 421(3) and their invocation: Under S. 421(3) period of limitation starts from day on which certified copy is made available to the aggrieved party. S. 421(3) can be invoked when aggrieved person does not apply for certified copies instead waits for it as per S. 420(3) and R. 50 of the National Company Law Tribunal Rules, 2016. If aggrieved person applied for certified copies, then S. 421(3) cannot be invoked. [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317]

Consumer Protection Act, 1986 — S. 23 — Appeal to Supreme Court — Maintainability: Execution proceedings and Original proceedings, held, are separate and independent. Appeal under S. 23 of the CP Act will not lie to Supreme Court against an order which has been passed in the course of execution proceedings. Appeal under S. 23 is maintainable against an order which has been passed by NCDRC on a complaint where value of goods or services and compensation, if any, claimed, exceeds threshold which is prescribed. Hence appeal under S. 23 of the CP Act against order in execution dismissed as being non-maintainable. [Ambience Infrastructure (P) Ltd. v. Ambience Island Apartment Owners, (2021) 2 SCC 163]

Information Technology Act, 2000 — S. 8 — Notifications in e-gazettes — Exact time of e-publication — Significance of: S. 8 creates a legal basis for the publication of laws through e-gazettes. Thus, with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. In this case, Noti. No. 5 of 2019 was uploaded in the e-gazette at a specific time and date, it could not apply to bills of entry which were presented on the customs automated EDI system prior to the time of uploading of the notification in the e-gazette. [Union of India v. G.S. Chatha Rice Mills, (2021) 2 SCC 209]

Motor Vehicles Act, 1988 — S. 168 — Compensation — Deduction towards personal expenses: Subsequent death of deceased’s dependant, ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at time of accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. [Kirti v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166]

Service Law — Appointment — Excess appointments — Filling up of vacancies over and above number of advertised vacancies: Ordinarily appointments are to be made strictly in order of merit in terms of select list prepared by competent authority as contemplated under relevant statutory recruitment rules. Any appointment in contravention thereof would be in violation of Art. 14 of the Constitution. However, further held, any appointments made deviating from merit in exceptional cases can be justified, like in instant case viz. to give quietus to litigation. However held, such appointments would be irregular appointments, though not illegal. Hence, even if action of State in extending benefit of concession recorded vide Supreme Court order dt. 10-5-2007 was a mistake; similar benefit cannot be claimed by appellants which would perpetuate mistake. Negative equality cannot be claimed to perpetuate further illegality. [Pankjeshwar Sharma v. State of J&K, (2021) 2 SCC 188]

Service Law — Recruitment Process — Examination — Correctness of final key answers uploaded by State PSC — Scope of Judicial Review: Though re-evaluation can be directed if rules permit, but practice of re-evaluation and secreting of questions by courts which lack expertise in academic matters must be discouraged. It is not permissible for High Court to examine question papers and answer sheets itself, particularly when Commission had assessed inter se merit of candidates. Courts must show deference and consideration to recommendation of expert committee. [Vikesh Kumar Gupta v. State of Rajasthan, (2021) 2 SCC 309]

Cases ReportedSupreme Court Cases

SCC Issue dated February 14th, 2021 (Vol. 2 Part 1)

Read the decisive judgment of the three-Judge Bench in the Vidya Drolia case, dexterously analysed by our Editors in over 21 short notes. The Judgment expounds on what is arbitrable and what is not. It propounds a fourfold test for determining when claim(s) in or subject-matter of a dispute are not arbitrable; and considers non-arbitrability of various kinds of claims or subject-matter based on this fourfold test.[Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1]

Short Notes: 21


Arbitration and Conciliation Act, 1996 — Ss. 8 & 11 and Ss. 2(3) & 34(2)(b)(i) — Non-arbitrability — Meaning of, explained and discussed in detail: Arbitration being a matter of contract, the parties are entitled to fix boundaries so as to confer and limit jurisdiction and legal authority of arbitrator and though the arbitration agreement may be valid, yet Arbitral Tribunal, in view of the will of the parties expressed in arbitration agreement, may not have jurisdiction to adjudicate the dispute. There is a difference between a non-arbitrable claim and non-arbitrable subject-matter: the former may arise on account of scope of the arbitration agreement and also when the claim is not capable of being resolved through arbitration; while generally non-arbitrability of the subject-matter would relate to non-arbitrability in law. Though the A&C Act, 1996 recognises and accepts that certain disputes or subjects are not capable of being resolved by arbitration vide S. 2(3) and S. 34(2)(b)(i), it is left to the courts ex visceribus actus i.e. from the very essence of the Act and within its four corners, to formulate the principles for determining non-arbitrability. Exclusion from arbitrability is predominantly a matter of case law. Propounding a fourfold test, held, that the subject-matter of a dispute in an arbitration agreement is not arbitrable when: (1) the cause of action and subject-matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem; (2) the cause of action and subject-matter of the dispute affects third-party rights, have erga omnes effect i.e. where rights or obligations are owed towards all, require centralised adjudication, and mutual adjudication would not be appropriate and enforceable; (3) the cause of action and subject-matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; (4) the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s). The aforesaid fourfold test has to be applied with care and caution. These tests are not watertight compartments: they dovetail and overlap, albeit when applied holistically and pragmatically, will help and assist in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject-matter is non-arbitrable. Only when the answer is in the affirmative that the subject-matter of the dispute would be non-arbitrable. [Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1]

Expanding Horizons of Criminal Procedure Law: Criminal Procedure law is treated merely as a lawyer’s law that tends to remain grossly marginalised in the law schools and training institutes. In this article the author had suggested ways and means for enhancing the understanding and devising new pedagogies of teaching criminal procedure law in the light of growing trends of transformations in the nature and curricular content of criminal procedure courses, highlighting the core criminal procedure issues in the light of lead readings on the subject and underscore a few notable High Court and the Supreme Court rulings that have the potential of maturing into a model procedure law for the future. [Expanding Horizons of Criminal Procedure Law by Prof. B.B. Pande, (2021) 2 SCC (J-1)]